Day 149: The rational decision to smoke

A Winnipeg-born political scientist who has spent much of his professional life examining how voters apply their economic self-interest to the ballot box appeared for the second day at the Montreal Tobacco trials.

Raymond Duch's task at this trial was to present, on behalf of two of the defendant tobacco companies,  his opinion on "the awareness of the Quebec (and Canada) population from 1950 to 1998 of the health risks associated with smoking and of the public's view that smoking can be difficult to quit." 

Yesterday he presented his 180 page report (Exhibit 40062.1) under friendly questions from JTI-Macdonald's lawyer, Doug Mitchell. On the basis of about 35 studies selected from about 300 he considered, Mr. Duch concluded that public awareness about reports linking smoking to disease were "exceptionally high" from the early 1960s, that public beliefs that smoking was harmful became equally high within a few years and that as long as there has been polling on the subject, Quebecers have known that smoking was habit forming.

Today Mr. Duch took his analysis one step further, and introduced a new concept to this trial - rational choice theory as applied to smoking. (A familiar defence framing in U.S. tobacco trials).

High levels of belief that tobacco is harmful means that "the smoking decision is not any less rational than voters' decisions  – they are informed decisions."  

Increasing the numerator makes the numbers fit

Mr. Bourque interpreted these results as
indicating 6 in 10 smokers thought cigarettes
were dangerous, but Mr. Duch said it
meant that 91% were.   

Mr. Duch is the second polling specialist to testify as an expert in this trial, and he spared little effort in slagging the efforts of the first, Mr. Christian Bourque of Léger Marketing.

(Mr. Bourque had reviewed results from the private CMA surveys conducted by Imperial Tobacco and produced a much lower estimate of the level of belief that smoking was harmful.)

Today Mr. Duch offered his reinterpretation of Mr. Bourques results to show that they were not so very different from his own. He suggested that all smokers who shared any belief that cigarette smoking was harmful should be grouped together as those who believe and not, as Mr. Bourque had done, to group together all those who thought that some level of smoking was not dangerous as those who don't believe.

Similarly, Mr. Duch felt that smokers' responses to CMA questions about how many cigarettes one could smoke could be reinterpreted to support his conclusions that health hazards were well known.

The cross examination

All but an hour of today was spent in the cross-examination of Mr. Duch -- first by Mr. André Lespérance and later by Mr. Bruce Johnston.

Mr. Lespérance's cross-examination style looks nothing like the TV shows. He has a very gentle affect, and a very calm manner. Even with his arms crossed and staring intently at the witness, as he was today, his voice maintains a kind tone and his questions are phrased in a positive way.

So it was somewhat surprising to see Mr. Duch respond with anger to questions so politely presented and whose content must surely have been expected (and rehearsed) by the ever well-prepared Doug Mitchell. This is the first expert witness that Justice Riordan has had to counsel to "calm down a minute and take a breath."

A view from above

There is a fine balance between a display of expertise that makes a person sound learned, and one that makes them seem unreliably out of touch. Mr. Lespérance successfully invited the witness to cross that line.

With more than a whiff of Faculty Club invective, Mr. Duch had made it clear that he found Mr. Bourque's work did not pass muster. "A classic example of spurious regression ..." "Mr. Bourque is being extremely misleading..." "A careful analyst would simply not do this."  

Mr. Lespérance returned to a few of the areas in Mr. Bourque's report that had drawn criticism. In doing so, he was able to show that the criticisms were misplaced, or blown out of proportion.

One of these was Mr. Bourque choice to replicate a 20-year chart from an Imperial Tobacco report (Exhibit 63) to illustrate the company's own knowledge of its CMA data instead of drawing from the semi-annual survey results.

Mr. Duch criticized the use of
secondary data in Mr. Bourque's report
as an "incomplete analysis"

Mr. Duch said this was not good enough, and contrasted it with his own higher standards.  "There were 34 studies -- not only the [20] identified here. I went back and got every one of the 34 studies -- Why didn't he get all 34 studies?!" ... "I would argue that for example that it is an incomplete analysis of the data that was available." 

Even when Mr. Lespérance forced the witness to agree that all of the years covered by the CMA were covered by this table, and that it had indeed produced the same trend line as his own analysis of public polling data Mr. Duch did not seem to see any wisdom in climbing down from ivory tower. ("I am simply saying that if I were evaluating ..."if I were reviewing this article for a journal...")

"But you do the same exercise and come to the same conclusion," Mr. Lespérance reminded him. "Yes," he admitted "but I conclude much more precisely!"  

Missing studies, Missing data

Most of the studies cited by Mr. Duch in his report were multiple choice (closed ended) questions put to Canadians about whether they had heard that tobacco was linked to lung cancer or whether they believed that cigarette smoking was a health hazard.

Missing from his report were references to any studies that asked smokers to say without prompting (open ended) what they thought the health consequences of smoking were, or to qualify their perceptions of the risk by comparing these with other aspects of daily life.

Some of those studies were among the JTI-Macdonald documents that were shared with the plaintiffs but not, apparently, with their own witness even though he testified he had asked for all relevant material.

One was a 1990 Environics survey of Ontarians, which found that although lung cancer was the most frequently identified health hazard from smoking, it was identified by only 44% of smokers. Only 20% mentioned emphysema or heart disease. (Exhibit 1547.1 and 1547.2) (Mr. Duch said that unprompted questions were "Absolutely not!" a more accurate measure of knowledge.)

Another was a Gallup study commissioned by the Canadian Cancer Society which can be found on the court record of the constitutional challenges to Canada's tobacco laws (in which Mr. Mitchell and his law firm were central players). It shows that as late as 1988, most Canadians though that traffic accidents were responsible for most preventable deaths in Canada. (Exhibit 1548)

Even within the studies which Mr. Duch used for his report there were questions relevant to health beliefs that were not included in his findings.

These included part of an Environics study (Exhibit 40064.24) that compared smoking with other risks but found "Adult Canadians are quite divided and unsure as to whether or not 'smoking is no worse than a lot of other things around us, like chemicals in food and car exhaust fumes.” 

Mr. Duch again appealed to his high methodological standards as a reason for rejecting this data that did not seem to fit his conclusions. "The question wording is inconsistent with all other questions I used."  Besides, he added  "this is a leading question - a badly worded question."

He had similarly not included another response in a study he cited (Exhibit 40064.6), one which asked Canadians to agree to questions like "Air pollution causes more lung disease than cigarette smoking” (70% said it did) or “some cigarettes are safe to smoke” (84% said they were).

Another question he overlooked was in a Goldfarb study he reviewed (Exhibit 40064.51), which asked whether people thought smokers died earlier. (Only 47% said this was true, and 31% said it was false). Again, Mr. Duch appealed to methodological concerns. "I am reluctant to accept that this particular question in and of itself should be the basis for me concluding something about peoples' concerns about smoking and death – only because it is one question." 

Even a study done for the CTMC (by Goldfarb in 1990) which reported on seemingly low levels of unprompted knowledge of health effects drew severe criticisms from Mr. Duch. "People can't orient themselves" with open ended questions, he said. "This does not conform to the conventional format for asking the question." .. They're wrong.” "This is someone who doesn’t know how to analyze data." 

Unanswered questions

By mid afternoon, a pattern of responses by the witness had set in. Survey questions that did not match the binary believe/don't believe pattern of his trend line were discarded. The additional information they might provide was not reliable, or he was not prepared to comment without further study.

He would not engage on many of the issues related to people's knowledge of health harms - like the storied "controversy", the engagement of third party messengers to overcome credibility issues, or the segmentation of the cigarette market according to health concerns.

Mr. Duch had said yesterday that the reason he agreed to undertake this research was his interest in people making decisions that "at least on the face of it, seemed to be irrational." Mr. Johnston wanted to know whether addiction had featured into his "conceptual methodology" for smoking, but Mr. Duch would not go beyond saying that he had found that people knew about addiction.

At the end of the day, Mr. Johnston asked Mr. Duch to reflect on a response from employees at Gallup to the use of their data by defence witnesses in U.S. tobacco litigation. (Exhibit 1239) The pollsters' concerns included the industry's selective use of data, and its view that responses to polling questions about "harm" could be consistently interpreted over a long span of years during which the public understanding of harms was changing.

Mr. Duch seemed unimpressed by their critique. Their paper was "presented in a conference and never peer reviewed or published," he sniffed. "Its authority is limited." 

Information short-cuts

The last question put to the witness came from his own lawyer (the 're-direct'), who invited him to explain why public misconception about the relative death toll from tobacco accidents did not affect his conclusion.

Mr. Duch explained people make decisions about a variety of things in life "using information short cuts. ... we know that people do not engage in exhaustive or complete collection of information."

"People for example do not know all of the information on toxicity of cigarettes in making a decision on smoking or not smoking. The notion that people sit down and assess the specific risks of automobiles or getting in a plane accident or assessing the precise probability of dying from smoking is absurd."

"Once people know that smoking leads to lung cancer – adding specific bits of information is not going to change their decision making calculus."

The trial does not sit next week. When the trial resumes on June 10th, the tobacco companies will call their first witness from Health Canada, Mr. Denis Choinière. The following week, the former Minister of Health, Mr. Marc Lalonde, is expected to testify.

Day 148: Raymond Duch and public polling

As the Montreal tobacco trials entered the third week of the "defence proof," a third expert witness was called in to speak to what is seen as the industry's main line of defence - smokers' awareness of the dangers of using their products.

Over the past two weeks, the trial has been presented with a "deluge" of old press clippings and other reports of information presented to Quebecers during the second half of the 20th century. These came in the form of reports by two historians, Jacques Lacoursière (for Rothmans, Benson and Hedges) and David H. Flaherty (for Imperial Tobacco) as well as the literally thousands of published reports that were the basis of their analyses.

Raymond Duch

Today's witness, Raymond Duch, is not an historian, but is instead a numbers man. As a quantitative political scientist, he focuses most of his research efforts on economic voting. (As he explained it to the court this morning, it would appear that our voting decisions are not driven by altruism or political philosophy. Sigh.)

Although he originally hails from The Peg, Mr. Duch's current home address is in Oxford, England where he is a fellow at Neuffield College. From his careful and sometimes hesitant answers, my guess is that he is not often called on to explain math at a court-room or non-Oxford level. He did well at what must be a primary objective: he kept Justice Riordan attentive and engaged.

Mr. Duch's mandate from JTI-Macdonald was to focus not on what information Quebecers were exposed to through the media, as the historians had done, but rather to review polling results to assess what the public remembered hearing and what they believed as a result.

His Report on Public Attitudes Associated with Smoking: Quebec and Canada was filed today under Exhibit 40062. (The source material will be filed under Exhibit 40064).

His is another contribution to the hefty research library assembled courtesy of these first tobacco industry witnesses. Now to find a way to make it available!

The 'Read-in' Rule

The practice adopted in this trial has been to accept the reports of expert witnesses "as read," which is to say that they do not need to be formally presented. The implementation of this practice has varied considerably, but in today's instance it meant that Mr. Duch presented the highlights of his findings to Justice Riordan in response to the questions fed to him by one of JTI-Macdonald's counsel, Doug Mitchell.

(It has been some weeks since we have seen Doug Mitchell in this court. With his convivial questions and occasional bon mot today, he seemed far more at ease today than earlier in the trial when he was handed the job of trying to knock the stuffing out of the plaintiff's witnesses and their testimony.)

For most of the day, the lawyer and witness simply followed the outline of the report. This allowed Mr. Duch to put on the record his views that:

* there were "remarkably high" levels of awareness of reports that smoking can cause cancer among Quebecers - even as early as 1954. "88% for Canada and 82% for Quebec - those are essentially everyone in the population. You don’t often get numbers that high." (Beyond 85%, he said, means "you really have the whole population".)

* although in early years Quebecers had lower levels of awareness than other Canadians, those differences disappeared by the mid 1980s.

* reports linking smoking and lung cancer were treated seriously, in part because of people's fears of cancer and also because the information came from highly credible sources. "The message will be listened to and will resonate – it will catch the attention of listeners."

* by the mid 1980s, Quebecers and Canadians were telling pollsters that they believed the link between smoking and lung cancer and other health problems.

* the trend in public acceptance of the health consequences showed a steady and consistent growth until the late 1990s when it neared 100%

* around 85% of Canadians reported their belief tobacco use was habit forming or hard to quit in the early 1980s, and that a decade later they agreed that it was "addictive."

Mr. Duch observed a steady increase over time in
agreement that smoking is a cause of lung cancer

Inside jobs and Outside jobs

By now the failure of industry witnesses to examine internal documents is a well-established pattern. We did not have to wait for the cross-examination to have the issue put to Mr. Duch, who is the third witness in a row to overlook the rich vein of research material that has now become part of the court record.

The examination had barely begun before Justice Riordan asked the witness why he had limited his inquiry to public polls.

Like those before him, Mr. Duch said the decision had been his to make. "I made an early decision to only include what I call publicly available data or survey data referenced in peer reviewed journals. I decided not to include survey data gathered by interested parties." 

"You don’t give credence to what was done by the companies? ... were [the polling companies] reputable firms?" Justice Riordan asked.

The companies were perfectly reputable, Mr. Duch said, but he "felt would undermine the credibility of the report" if he used their results. "Maybe it was a wrong call on my part, but I felt that it was the right call." 

The best defence is a good offence

Mr. Duch's report is the second expert survey report to be filed with the court. The first was by the plaintiff's witness, Christian Bourque, who testified in January and March.

The sources used by the two men for their reports are mutually exclusive. In yet another irony,  Mr. Duch, who works for the industry, looked only at public polling. Mr. Bourque, who is a public pollster (with Leger Marketing), looked only at the industry's private data.

Nor are their findings compatible. Mr. Duch found an "exceptionally high level" of awareness and indications of perceptions of risk.  Mr. Bourque found that "a good number" did not perceive smoking to be dangerous, and that even by 1990, one smoker in 5 did not clearly understand that smoking was dangerous for everyone.

It's not possible to square these two perspectives - and this afternoon Mr. Duch was invited to square off against the plaintiff's expert who was sitting at the back of the room listening, just as he had sat to observe Mr. Bourque's testimony.

"I don't want to personalize this," Mr. Duch began before launching into a review that was in many ways the mirror of the criticisms levelled against his work and that of other industry witnesses.

Mr. Bourque erred, he said, because he only looked at the industry records and was "innattentive to the large body of existing public opinion research" that "should have been addressed or referenced in the report." As a result, "his conclusion is an order of magnitude different to what the publicly available data suggests."

He criticized the questions that were used by Canadian Facts during its much-repeated survey, saying that they were too ambiguous, or "conflated" issues by combining ideas. "The data that comes from the survey is entirely unreliable." The presentation of results was also flawed, he said, as Mr. Bourque had improperly interpreted answers to what he saw as a factual question about smokers' views on how many cigarettes could be smoked before incurring health risks.

The whole exercise was so flawed, in his view, that Mr. Duch charged the plaintiff's witness with "misleading the court" and taking an "indefensible position."  Ouch!

The plaintiffs continued to maintain a calm silence throughout the day -- it was Justice Riordan who sounded like he was defending the plaintiff's witness when he pointed out that Mr. Bourque's mandate had been limited to the industry's internal polling.

Pre-emptive strikes

The first two historians to testify for the industry had suggested that the tobacco companies had little credibility, and that there denials of health risk would therefore have had little impact. Although Mr. Duch did not review any public polling data on this, he was asked to comment on an internal poll conducted by Imperial Tobacco that at first blush - and without the explanatory tables - might suggest that half of Canadians thought the industry was credible. (See "52%" figure circled in red from Exhibit 987.21).

Perhaps fearful that this information would be misunderstood if presented by the plaintiffs on cross-examination, Doug Mitchell invited Mr. Duch to explain that the question had only been asked of those who said "yes" to the question of whether the industry could make a case to refute health concerns.

The arithmetic was presented (52% x 31% = 16%) showing that only 16% of Canadians thought the industry was credible (about 1 in 6 people).

Mr. Duch was not asked to comment on the fact that among smokers (circled in yellow), one-quarter of smokers found the industry credible. (61% x 41% = 25%).

By today's 1.5 million Quebec smokers, that would be 375,000 individuals, almost the population of Quebec's third largest city, Laval.

A short week

With virtually no interruptions from the plaintiffs, and a witness who seemed to explain his work concisely and clearly, Mr. Mitchell had almost finished by the end of the day. The cross-examination will likely start early tomorrow and be finished by the end of the day.

If so, a short week will have become even shorter -- as the tobacco companies have still not provided any back up witnesses to fill the holes in the schedule should Wednesday now be an empty day.

Which brings us to the next installment in the saga of Justice Riordan's case management decision.

Yes, abusive. But process, not people.

An enhanced politesse has entered the discussions between Justice Riordan and the defence counsel following their objections  to his decision to limit their proof to 175 days (their schedule, which has not been made public, identified 300 more trial days).

The lawyers' speeches were prepared in advanced, and read in the most moderate tones. And so was Justice Riordan's response when it was provided at the beginning of the day.

The judge said he had reflected on the complaints, and clarified that his use of the word abusive "is in relation to excessive and unreasonable" schedule that was proposed. He said he had made no allusions to improper behaviour by individual lawyers.

He acknowledged that is ruling was an "unusual step." While he did not step down from his decision to impose a time limit, he said he would "welcome" the offer of modifications that the companies had made "should they materialize."

He specified that his concern with respect to class members was that the Imperial Tobacco would ask for individual medical histories and records, which he has previously refused. Appeals of future decisions to deny access to these records "could add months to the trial." He said it was not appropriate for him to put any objections under reserve (i.e. force the class members to divulge their histories and then strike them from the record later).

He suggested either holding one week of hearings on class members (to get objections on the record) or having a test case identified earlier. "This would allow the appeal case to proceed."

He responded to the comments about his impartiality by stating that there was no basis to see his ruling as suggesting he had made any decisions on the case. "Pieces of the puzzles are still being laid out on the table and I do not intend to start assembling them until the end."

Justice Riordan's ruling compelled the companies to produce a new schedule for May 31st that "will respect a total of 175 days of hearing". An interesting way to observe World No Tobacco Day.

Mr. Duch's testimony will continue tomorrow.