Day 170: If Michael Dixon is right, a whole lot of people are wrong

This morning the plaintiffs in Montreal's Tobacco Trials resumed their cross-examination of BAT's expert witness, Michael Dixon.

Their goal seemed to be to show that Mr. Dixon's views on the benefits of low-tar cigarettes are not only inconsistent with mainstream scientific opinion, they are inconsistent with the stated positions of the defendants. When pushed, the only researchers Mr. Dixon cited to support his view were those with established connections to the tobacco industry.

Pierre Boivin began the day by filing a quick succession of scientific studies that he established mr. Dixon had been familiar with and which were written by "respected experts" but which had, nonetheless, been excluded from his review. He left unstated the implication that an expert to the court should have at least made mention of these alternative views.

Among those presented today were the 2005 conclusions of Stephen Hecht and colleagues that "there would be no decreased risk" associated with low-tar brands (Exhibit 1592), and the 2004 findings of Michael Thun and others that lung cancer cases in the 1980s were as high for those who smoked low-tar brands (Exhibit 1593).

Soon the questioning was handed over to Bruce Johnston.

Is disagreeing with the boss easier when you don't know who she is?

Imperial Tobacco Canada
President, Marie Polet

Mr. Johnston pointed out that Dixon's views were not only at odds with independent scientists, they also contradicted the testimony of his client's President and CEO, Marie Polet.

(Marie Polet and Mr. Dixon both started working for BAT in the early 1980s, but Mr. Dixon seemed entirely unfamiliar with her, and did not even know that she was the current head of Imperial Tobacco.)

Last year, Ms. Polet told this trial "There is no evidence today, Your Honour, that lower tar cigarettes or, indeed, any type of cigarettes are in any way safer than high tar cigarettes; there's absolutely no proven evidence of that at all."

She had testified that for such reasons "it would be very wrong ... to claim any health benefits."

Hearing these views today, Mr. Dixon disagreed with Ms. Polet. He said that a large number of studies ("maybe 30 to 35" in number) had shown "some risk reduction, particularly for lung cancer."

"Whom should the Court believe? You or Madame Polet?"
Mr. Dixon would not bite. "That's for Mr. Justice to answer." 

Peter N. Lee: the backstory

On more than one occasion this week, Mike Dixon has cited the work of Peter Lee and Geoffrey Kabat as support for his view "that there are proven health benefits of lower tar cigarettes."

He is not the first witness to cite this British researcher as a reliable source - but his frequent repetition of the name has finally put this controversial figure in the spotlight. This allowed Mr. Johnston to use Mr. Dixon's presence to put the relationship between BAT and Peter Lee more clearly on the record.

In a long exchange, Mr. Johnston showed Mr. Dixon examples of the private views of Mr. Lee being different than his public positions on whether smoking caused cancer. (See, for example, Exhibits 1273 and 15C.)

Mr. Lee's relationship with BAT was neither casual nor fleeting. A report on BAT-funded research which Mr. Johnston showed to Mike Dixon (Exhibit 1598r) suggests that Mr. Lee was the go-to-boy when BAT wanted a sympathetic scientific publication. About half of the 216 publications commissioned by BAT were written by this one scientist.

Although it was written after this list was prepared, the study cited by Mike Dixon to support his views on low-tar cigarettes was another BAT-commissioned work authored by Lee. (Exhibit 1599)

102 of 216 BAT-funded research studies were
authored by PN Lee. Exhibit 1598r.

The re-direct

During her second opportunity to question her witness, Ms. Glendinning's enthusiasm to get certain answers on the record earned a rebuke from Justice Riordan.  

"When a lawyer examines his or her own witness in a very leading way, it tends to undermine the credibility of the witness or the probative value of the witness' testimony. And I've found your questions very leading with this witness."  He noted that there had been no objections from the plaintiffs, but that "I should have warned you of this earlier."  (To my recollection, this is the first time in this trial that Justice Riordan has made such a comment).

Nonetheless, Ms. Glendinning was able to present Mr. Dixon with the opportunity to criticize the methodologies of those scientists who came to different conclusions than he did, and to comment disparagingly on the credibility of those appointed in 2001 to provide advice to Health Canada on low-tar cigarettes.

Perhaps the clearest illustration of the gulf between the views of Mr. Dixon and the public health researchers he disdained came with his answer to a question about the 16% of Canadian smokers who told Statistics Canada surveyors that they thought "light" and "mild" cigarettes were less harmful.

"The claim [by health groups] is that substantial numbers of these smokers believe this allegation. Is that your understanding?
"No, certainly not! 16 per cent is not a substantial number."

Sixteen per cent may not sound that high - but as a percentage of the 6 million Canadians who were smokers in 2001,  it nonetheless represented 1 million Canadians.  Not substantial!?

Justice Riordan's closing question

Despite his protests last week about more discussion about compensation, Justice Riordan returned to the core issue when he put his question to Mr. Dixon at the end of the day. (Justice Riordan seems to prepare in advance for this last round of questions, reading notes from his computer screen as he does so).

He asked Mr. Dixon to re-affirm his expertise in compensation and his definitions of full and partial compensation before asking "Is full compensation a danger that should be associated with the use of low-yield cigarettes? Is there a risk or danger associated with the use of low-yield cigarettes?"

Mr Dixon explained once again that these products were no more harmful, even if there were full compensation, and that with partial compensation "then you are seeing a reduction in exposure which, hopefully, would be reflected ultimately in a risk reduction for certain diseases."

"But it wouldn't eliminate the risk."
"It certainly wouldn't eliminate the risk, no."

----------------------

The trial has now suspended for two weeks, and will resume on October 7. 

Day 169: Dixon the Iconoclast

It is not often in Montreal tobacco trials that the legal counsel are asked to connect-the-dots of their evidence. One of those rare moments came this morning when Justice Riordan pressed Imperial Tobacco's counsel for an explanation -  "why do I need to know about lip blocking?"

Deborah Glendinning pointed the judge to her destination. "The theory we have heard [from the plaintiffs] is that low tar cigarettes do not provide benefit because smokers compensate and as a result do not get a reduced delivery." 

"All of the evidence is to the contrary. We went through the studies and the evidence that low tar produces a benefit to the population. All of this evidence is that people do not compensate in ways that negate the benefits of low-tar." 

Simon Potter (who in recent weeks has rarely attended the trial) added his own two-bits' worth. "It is one thing for the plaintiffs to say you hid all this information and the companies to reply that the information was shared and that such harm was not done. It is another thing to say there was a consequential damage. On that point is is also necessary to answer [that no damage was incurred]."

And so it was that BAT's scientific and litigation consultant, Michael Dixon, spent the morning burnishing his version of the nature of smokers' compensation.

Picking up from the day before, he cited research that had been conducted by BAT and other tobacco companies, or by scientists they funded, which concluded:
* smokers only partially compensate when they change types of cigarettes (Exhibits 40346.211B, 20280, 20281.1)
* they do so by increasing the "puff volume" of their inhalations (Exhibit 20282, 20276)
* they do not do so by increasing the number of cigarettes they buy
* they do not do so by smoking more of each cigarette (Exhibit 20281.2, 20281.3)
* they do not do so as a result of the way the cigarette is designed (i.e. filter ventilation) (Exhibit  20285, 20287, 20290, 20288)
* smokers compensation is driven by the smokers' sensory responses to the inhalation of tar and not by any requirements for nicotine (Exhibit 20292, 20293, 20294)

He summed it up shortly before lunch. "People [who smoke reduced-yield products] are getting a reduced exposure. .. That reduction in exposure is likely to be reflected in some reduction in disease risk. ... "There has been a benefit in population terms in reduced exposure and potentially in reduced risk as well."

(Smokers apparently do not share the view that low-tar cigarettes are less harmful. Mr. Dixon cited Health Canada funded surveys showing "the vast majority" of Canadian smokers do not think reduced-yield products are less harmful and that these cigarettes are selected because of the "light taste and less irritation in the throat region.")

The proof of the proof is in the judgement 

Despite the reluctance he had expressed earlier in the week about hearing more evidence on compensation, Justice Riordan appeared to be quite interested in Mr. Dixon's testimony and recited some of the testimony in a tone that suggested he had no difficulty accepting it.

If so, he will have taken a very different view than at least one other judge who has heard this witness on the same points. In her 2006 Final Opinion, Justice Gladys Kessler sharply rejected Mr. Dixon's views on compensation:

To rebut the testimony of Drs. Benowitz, Burns, Henningfield, and Farone regardingsmoker compensation, Defendants relied upon tobacco industry scientist Michael Dixon, Ph.D., an employee of Defendant BATCo, to testify as an expert in "human smoking behavior." Dr. Dixon testified that compensation is not complete because smokers compensate for tar not nicotine. Dr. Dixon is neither a medical doctor nor an epidemiologist; he holds a Ph.D. in respiratory physiology. Dr. Dixon further admitted that nowhere in his written direct examination did he even mention the subject of nicotine addiction. He has not published any articles on the subject of nicotine addiction, and there is nothing in the record to suggest that he has published a single peer-reviewed publication on any subject. Without any expertise in nicotine addiction, Dr. Dixon's testimony as to whether nicotine addiction drives smokers to compensate is not credible, especially when compared to the totally contrary evidence of government experts Benowitz, Burns, and Henningfield, each of whom has enormous expertise in the fields of nicotine addiction and smoking and health, have written numerous peer reviewed articles on these subjects, and have participated in the rigorous process of writing different Surgeon General’s Reports on smoking and health.

The cross examination: Where to start!?

Plaintiff lawyer Pierre Boivin returned after lunch to begin a cross examination that will continue into tomorrow.

Much of his focus this afternoon was in demonstrating that - despite Ms. Glendinning's assurances that "all of the evidence" supported the benefits of low tar - most health authorities were of the opposite view.

By showing that Mr. Dixon had neglected to include any recent independent scientific findings on this subject, he likely aimed to cast doubt on the integrity of the expert report.

We seem to have crossed the time barrier

During the first year of this trial, a curtain had been firmly drawn over events that occurred after 1998, which is when the Blais and Létourneau claims were filed.

Any attempts by the plaintiffs to introduce more recent ideas or evidence were successfully objected to by the industry lawyers on the basis that these were outside "the class period."

The trial appears to have moved on. Over the past few weeks, industry witnesses like Mr. Dixon have cited more contemporary reports which allows the plaintiffs to similarly do so.

The result is that Justice Riordan is finally being allowed to get updated on important events in the past 15 years - when it comes to low-tar cigarettes, a lot has happened since 1998. Mr. Dixon's arguments might have been more persuasive had he stayed in the 20th century!

Not all of the evidence. Not even most of the evidence. 

'All of this evidence is that people do not compensate in ways that negate the benefits of low-tar," Ms. Glendinning said this morning.

Pierre Boivin set about to disprove this view, showing the judge that leading health authorities have concluded the opposite.

Mr. Dixon's frequent repetitions that he "did not agree" with the consensus view of important research bodies made him look more like a lonely voice than a leading expert.

Misrepresenting the view of the Royal College of Physicians

Mr. Dixon had cited in his report the 1971 view of the UK Royal College of Physicians that low-tar cigarettes might be a good idea.

But he had neglected to mention that the College had changed their view in 2000, and had renounced the benefits of low yield cigarettes as smokers "derive false health reassurance from them, as may have been intended by tobacco companies." ("Nicotine Addiction in Britain" - Exhibit 1586).

In his answer to Mr. Boivin's question about why his "expert" report did not mention the change of position Mr. Dixon referred back to Monograph 13 (Exhibit 40346.221), and the "sea change" that it had created. "Up to that point, all the data were supporting low-tar," he said. Apparently he liked the old sea, and said he had cited the 30-year old position of the College as his scientific reference because he felt it was the one that was still scientifically valid. "My expert opinion is that the conclusions of Monograph 13 are not supported by the science."

(Neither Mr. Boivin or Mr. Dixon seemed to notice that Nicotine Addiction in Britain was published the year BEFORE Monograph 13.)

Ignoring other landmarks

In the spring of 2000, Canadian Health Minister, Alan Rock, established an expert advisory body to guide him on the regulation of light and mild. In its report made public early in the next year, the panel found "There is no convincing evidence of a meaningful health benefit to either individuals nor to the whole population resulting from cigarettes marketed as light or mild." ( Putting an End to Deception, Exhibit TBA.)

Mr. Dixon did not agree with that finding.

The U.S. Surgeon General report from 2010 (Exhibit 601-2010) similarly found that "the evidence indicates that changing cigarette designs over the last five decades, including filtered, low-tar and light variations have not reduced overall disease risk among smokers."

Mr. Dixon did not agree with that finding either.

The World Health Organization's Scientific Advisory Committee on Tobacco Product Regulation found that cigarette designs "like the low tar cigarette do not result in reductions in exposure or risk."

Mr. Dixon did not agree with that finding either.

 Maleable qualifications

In answering Mr. Boivin's questions, Mr. Dixon was less confident of his expertise in concluding the health consequences of cigarette designs than he had been earlier in the day.

Although he had an opinion on low-tar cigarettes, he did not feel qualified to agree or disagree with the Surgeon General's 2010 conclusion that "one-half of all long term smokers, particularly those who began smoking in their adolescence, will eventually die from their use of tobacco."

But he spoke with greater confidence when pointing out the methodological flaws in research papers that came to different conclusions than his own. At one point he generalized his criticism: "The problem I have with a lot of articles in tobacco control .. is that you see a bold statement and then you go back to the sources and they don't support the statement."

Tomorrow, Mr. Boivin will have an opportunity to continue his cross-examination of Mr. Dixon.

Day 168: Déja vu all over again

For information on accessing documents, see note at the end of this post.

One of the grand narrative arcs in the history of tobacco is the attempts by tobacco companies to refute the mainstream opinion of science.

Or, as a committee of the U.K. House of Commons put it in a report filed in the Montreal Tobacco Trials last week: "It seems to us that the companies have sought to undermine the scientific consensus until such time as that position appears ridiculous." (Exhibit 1572). 

Those present in the courtroom during today's session had an opportunity to witness this type of history in the re-making as BAT consultant and expert witness Michael Dixon tried to convince Justice Riordan that health authorities are wrong in thinking that low-tar cigarettes are without health benefit.

He was working hard to make that position not seem too ridiculous.

Michael Dixon, redux.

Michael Dixon is a pony of choice in BAT's stable of witnesses, and listening to him today, it is easy to see why. He not only talks a good line, he does so in a colourful Midlands lilt and with a disarming conversational delivery. To the extent that an Englishman can be folksy, Mr. Dixon is. (He has, however, a disconcerting gaze - Justice Riordan who was facing him all day may have had a somewhat different impression.)

Certainly, this is a witness who is practiced in appearing before juries and judges. He reported today that he had already testified as an expert witness for tobacco companies on ten previous occasions.

"Congratulations, sir on number 11" said Justice Riordan when he over-ruled the objections of the plaintiffs to Mr. Dixon being qualified as an expert witness  in "smoking behaviour, cigarette design and the relationship between cigarette behaviour and smoking design." Pierre Boivin based his opposition on Mr. Dixon's long career within the industry, suggesting that his bias would diminish his contribution as an expert advisor to the court.

An insider turned expert-witness

Mr. Dixon completed a PhD in physiology, but gained his knowledge of smoking behaviour over a 25-year career shared between BAT, Rothmans and research consultants to the tobacco industry. (Exhibit 20256.2) As with many of the other defence witnesses in this trial, he maintains a contractual relationship with his former employer.

In theory, Mr. Dixon had been brought in to respond to the report of the plaintiff's expert witness, André Castonguay. (Mr. Castonguay's report is Exhibit 1385, Mr. Dixon's 45-page report is Exhibit 20256.1).

In practice, he seems to have been given the task of casting doubt on the allegations that light cigarettes are not a defective design and that smokers do not "smoke for nicotine." 

Much of his testimony centered on his view that:
* smokers compensate, but not enough to compromise the aims of tar reduction policies.
* compensatory smoking is driven not by the psycho-pharmacological need for nicotine, but by the more physical "sensory impact" of smoke in the mouth. Smokers "chose one brand over another not because they give better mood control," but because of the sensory impact.

This perspective is significantly at odds with the current scientific consensus, although you would not have known that from listening to Mr. Dixon's testimony.

There were many moments today that felt a time warp back to the Isabelle Committee or other occasions when industry representatives have denied the prevailing public health conclusions, whether with respect to causation or the harms of second hand smoke or addiction.

Changing sides, changing rules

Mr. Dixon's task today was made easier by the use - for the first time in this trial - of an easel on which some of his organizing ideas were presented.

Because the use of prepared visual aids had been denied to the plaintiffs, plaintiff lawyer Mr. Pierre Boivin weakly protested that he felt "obliged to object" to the change in practice. If Justice Riordan was not consistent in his application of the "no powerpoint" rule, he was at least consistent in his practice of giving Imperial Tobacco's counsel a wide latitude in how they present their proof! The easel stayed.

Visual aids helped Michael Dixon
present his views

Defending the way things were

Mr. Dixon is a firm believer that standardised machine smoke testing is relevant to both smokers and regulators.

From their early use, he said, the limitations of smoking machines were well understood. The somewhat arbitrary parameters by which smoke yields were measured cigarette meant there was never any intention to represent what a real smoker would inhale.

"The critics of the machine smoking procedure have frequently failed to understand that values presented in tables published by DHSS have never been intended to be actual yields obtained by any one smoker. Rather they enable brands to be ranked."

Although the tobacco companies developed their own ways to better mimic actual smoking behaviour, Mr. Dixon said these measures in no way rendered the initial systems "obsolete" - and that industry science was were never secret:
* the "smoke duplicator" and other methods developed to analyze human smoking behaviour were a less reliable indicator of a cigarette's potential yield, as the variance between one person and another was so vast.
* BAT made public its insights on smoking behaviour in a 1978 volume "Smoking Behaviour and Psychological Influences" (Exhibit 20009). More recent findings are openly shared at the annual Tobacco Science Research Conferences, to which anyone is welcome to attend.

Defending the way things were thought to be

Mr. Dixon holds fast to the view that the machine yields of cigarettes are relevant to the exposure of smokers to harmful compounds. In addition to his own research dissecting butts to measure the residue (Exhibit 20261, 20262, 20263, 20264), he cited the work of other industry researchers who have found a relationship between machine-yields and smoker-exposure.

He said that the reduction in tar yields has likely resulted in the reduction of deaths from smoking. He cited as support for this view publications by researchers like Ernst Wyndar (Exhibit 20053.1), the Froggatt committee (Exhibit 20035), and Peter Lee (Exhibit 20267).

So where does that leave those scientists who have, in recent years, renounced the low-tar strategy?

Attacking the way things changed

More than a decade has passed the U.S. National Cancer Institute published "Monograph 13" and its finding that there was no conclusive evidence of any benefit to low tar cigarettes. (Exhibit 40346.221).

Mr. Dixon has testified against this report in other trials, and time does not seem to have softened his opinion. A long stretch of time today was given over to his detailed critique of the report and its authors.

The editors of Monograph 13 - David Burns and Neal Benowitz - were presented today as the ones whose ideas were not supported by mainstream scientists, or in the parlance established earlier in the trial, as the scientific "outliers". Mr. Dixon expressed confidence in the conclusions of other researchers, such as Geoffrey Kabat and Peter Lee (Exhibit 20269, 20269), who "concluded that David Burns' analysis wasn't correct."

Mr. Benowitz, came in for a more personal repudiation. Mr. Dixon displayed a graph from Mr. Benowitz's chapter in the Monograph, and then slowly dissected its conclusion. He said a more reliable understanding of the limited level of compensation was provided by Gerard Scherer (Exhibit 20010).

Even his former BAT colleagues who had reported on compensation came in for a scientific tongue wagging. The methodology of one such report, which had been cited by André Castonguay (Exhibit 346 H) was described today as "fairly crude." Its conclusion that smokers "as a whole took larger puffs from the lower delivery products" was not one that was either supported by its own data and certainly not a view that would have been shared amongst other BAT scientists, said Mr. Dixon. Perhaps insiders can also be outliers!

By the end of the day, Ms. Glendinning was well past the half way mark of the 80 or so documents she had selected for Mr. Dixon's comments.

Mr. Dixon's testimony continues tomorrow.


To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links