Day 162: Loyal to a fault?

To access trial documents linked to this site, see note at the bottom of this post.

After being sworn in, the first thing that a witness appearing at the Montreal tobacco trials must do is to state their name, address and age.

From this small amount of information provided by Andrew Porter during his first appearance before Justice Riordan last year, I began to form an impression of the character of his relationship with his Imperial Tobacco, his employer of three decades.

Imperial Tobacco's converted HQ

I recognized the home address given by Mr. Porter only because it had appeared on many of the trial documents. It was the historic address of Imperial Tobacco headquarters!

(By the time that Mr. Porter retired in 2007, Imperial Tobacco had moved across the street to more modern facilities. Its old plant was converted into "Imperial Loft" condos.)

What can you say about a man who chose to spend his retirement years in the same set of buildings where he had worked for three decades? And to remain within spitting distance of his former employers?

This week it became clear that in more ways than one, Mr. Porter had never really left the building.

Back to normal -- or maybe a new normal

The heavy dose of objections laid down by the plaintiffs yesterday seemed to have had some therapeutic effect.

Today there was a lot less procedural wrangling, and even some negotiations! Justice Riordan seemed to be nudging both parties into agreeing on how the scientific reports from the companies could be used as evidence. (No firm agreement yet!)

Plaintiff lawyers André Lespérance and Pierre Boivin (and occasionally Philippe Trudel) continued to challenge Nancy Roberts as she resumed her series of questions to Mr. Porter, although at a much reduced pace and only with spotty success.

Today, Ms. Roberts maintained her equilibrium, and did not allow these interjections to distract her from moving through a very long list of prepared questions.

As usual, Justice Riordan ruled in favour of information being presented to the trial. Although he allowed Ms. Roberts to ask Mr. Porter about his opinions and general knowledge, the judge made clear that these would not be given the same weight or importance as expert opinion.

Mr. Porter's views

For the most part, the exhibits presented today (Exhibits 20176 to 20209) are reports or publications related to measuring tobacco chemistry, altering it, or assessing its impact on human beings.

Very little of the science in these documents was discussed in any detail. Instead, the reports were used as a springboard to allow Mr. Porter to counter the version of events presented during earlier testimony.

No safety standards - but a "spectrum of harm reduction"

Mr. Porter was asked early in the day whether there were any "tests or panel of tests that will prove that the risks to health would decrease with any particular modification" to cigarette designs.  No, he said. There were no tests that establish that one cigarette is safer than another.

Yet yesterday he had described the tests that were used to try to do just that - and today he made it clear that he saw certain cigarette designs in a hierarchy of safety.

"If you go back over time there have been all sorts of different approaches to reduced risk cigarettes," said Mr. Porter. The reason that so few made it to market was because smokers didn't like them.

Filters

Mr. Porter considers filters to be an effective way to reduce the toxins in cigarettes. He explained that they can achieve an across-the-board reduction in all solid components or even all compounds ("general reduction), or can be designed to target specific smoke chemicals ("specific reduction").

The cellulose acetate filters used on Imperial Tobacco brands are less effective at reducing cigarette harms than other filters Imperial Tobacco tested (i.e. charcoal or polypropelyne), but are more popular with customers. "The problem with charcoal is that it changes the taste of cigarettes considerably. We haven’t found consumers willing to change."

Novel designs

One of the first efforts to design a new (safer) kind of cigarette dated from the 1970s, when British manufacturers created artificial tobacco from cellulose and flavours. This was tested and supported by health authorities in the United Kingdom, but never tried in Canada. Smokers didn't like it. Moreover, he pointed out "it still requires the material to be burned and whenever you burn material, you create some form of risk." 

Both BAT and RJ-Reynolds developed technology for cigarettes that would "heat not burn". BAT never brought theirs to market, and RJR's Premier did not survive the test-market phase.

The simulated cigarette, FAVOR, was "further in the reduced harm spectrum" and was test-marketed in Canada. Mr. Porter reported on his own experiment with this "plastic tube with a sponge inside with flavours and nicotine."  "It was disgusting," he said. "It didn't sell, let's put it that way."

Different tobaccos

Although Mr. Porter said that some types of tobacco are more harmful than others, he didn't report how the tobacco in Canadian cigarettes compared with others.

Ways of treating tobacco can also affect the compounds it produes, he said. He described the various forms of reconstituted and manufactured tobacco used in Imperial Tobacco products in ways that suggested they were improvements on untreated tobacco, as the cigarettes made from them produced lower deliveries of tar and nicotine.

He admitted that ITL had found other ways to manufacture processed tobacco (Gerlach) which they thought was less mutagenic. But the chemicals required in the manufacturing process triggered worker-safety issues. And - again - "the taste was completely unacceptable to smokers."

He reported on efforts by ITL to reduce the tobacco specific nitrosamines in the tobacco used in Canadian cigarettes. By changing the curing methods, he said, the levels of TSNAs were reduced by 90%.

Project Day

Mr. Porter was not given the opportunity to formally present Project Day, the flagship harm reduction program that was the focus of his work for over two decades.

But he rejected the view that Project Day was driven by marketing concerns, or that it was not supported by senior management.

Mr. Porter had never seen the haughty exchange between the highest management levels of BAT and ITL in the Canadian research efforts were described as "overly simplistic" and not worth supporting. (Exhibit 255A). But this memo had not stopped the work, Mr. Porter testified. The efforts ramped up in subsequent years, and eventually BAT absorbed them into its own centralized research department.

As for why, after 25 years' effort and vast sums of money, Project Day has not made it to market? Mr. Porter had a long list of reasons. Problems with suppliers. Problems with laboratories. Problems with enzymes. Problems with filters. Problems with shifting goal posts from health authorities.

(He had more to say about Project Day, but his lawyer wasn't prepared to have it said in open court. Rather than go in camera, it was agreed that he could provide this evidence through an affadavit.)

There may be flies on some of you guys...

Mr. Porter was asked a wide range of questions that allowed him to refute earlier testimony in the trial.

* He said Mr. Wigand was wrong to say that coumarin was a carcinogen, as "Coumarin is not on the IARC list of  group 1 or 2 – it is a group 3." What is more, this is an additive that has beneficial properties! "Some of its derivatives are shown to have anti-tumorigenic activity."  

* Despite evidence that BAT had planned to restrict scientists' communication, (Exhibit 82B), such a policy had never been implemented at Imperial Tobacco. Mr. Porter's full access to documents was not diminished by the document retention policy. And lawyers never vetted or reviewed his research reports.

* Imperial Tobacco had never designed cigarettes to "cheat league tables," and had never added nicotine to cigarettes and had never used designs that increased cigarette delivery.

A proud and ethical team

Mr. Porter was unequivocal when replying "no" to the question "did Imperial engage in any unethical behaviour, in your view?" 

Ms. Roberts' last question invited him to describe the work of his department. "It was thorough. It was professional. It was done with great ethical considerations. It was somewhere where people were proud to work."

But what did he really think?

There were three minutes left on the clock when Ms. Roberts' questions were finished, but Justice Riordan extended the session to allow the plaintiffs to decide whether they needed an extended cross-examination.

Mr. Lespérance wanted to know whether when Mr. Porter joined the company he believed that smoking caused cancer or whether he agreed at the time with the official industry line. (Exhibit 580C) "The Canadian Tobacco Manufacturers Council ("CTMC") also holds the same view that the causal relationship between smoking and various diseases has not been proven."

From this point on, there was a notable change in the witness' body language and tone. He leaned on the table as he turned to face Mr. Lespérance. "At at that time I probably thought that it was a causal relationship.... I held the view that it was very likely."

So was it ethical for a company leader to say it wasn't causal? 

"If it hadn’t been proven it would be ethical to say it. If it had been proven it would not be ethical. So it then it comes to the question of whether it had been proven. I didn’t say it was 100%. There is a very big difference between likely and proven."

As Mr. Leséprance pushed for a clearer answer, the replies became more vague. Very likely, good possibility - "to me it is the same."

Mr. Lespérance showed the witness a newspaper report where his former boss took a different view. "No, it is not the position of the industry that smoking causes any disease,"Jean-Louis Mercier, chairman and chief executive officer of Imperial Tobacco Ltd. told the Commons committee." (Exhibit 1322-pp-2m)

(Parliamentary Privilege! objected lawyers from ITL and RBH, but the question was again allowed).

Mr. Porter further nuanced his answer. "I think it was a risk factor for a number of disease, but as to whether we know the exact cause, on that basis you can say that we don’t know."

For the past two days, Mr. Porter had given the impression of earnestly trying to answer the questions put to him, even though he often needed a little prompting from his lawyer. During his exchange with Mr. Lespérance, he seemed evasive and unwilling to answer clearly. 

With this impression established, the plaintiffs reported they had no further questions.

But Justice Riordan picked up where they had left off. He wanted to know how Mr. Porter and his team of 8 or 9 scientists could have worked for decades to reduce the carcinogens in cigarette smoke without ever talking about the issue of causation.

The judge tried several times to get an answer that reconciled this apparent conflict in logic. The best Mr. Porter would give him was that they had operated on the working assumption that smoke was carcinogenic, or a risk factor for these purposes.

There were no more questions. After 6 days of testimony - 4 for the plaintiffs and 2 for the defence - Mr. Porter was free to go.

For the second week in a row the hearings ended a day early and the Thursday sitting was cancelled. Some grumpiness was expressed, but no one seemed too upset at the prospect of another long summer weekend. Happy Labour Day.

Another BAT/ITL scientist - Mr. Graham Read will testify when the trial resumes on September 9th.

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

Day 161: Therapeutic objections

To access trial documents linked to this site, see note at the bottom of the post.

You could almost hear the mental chess board being re-arranged yesterday when Justice Riordan broke it to the plaintiffs that they could expect no reciprocity in the kinder-gentler treatment extended to the tobacco companies' exhibits over the first months of the "defence proof".

"Although one side accepts a modus operandi which seems to them to be logical and practical even if does not strictly follow the rules and procedures, it is still difficult to impose it on the other side without their consent. That is my problem. That is my situation," he said.

Thousands of exhibits have been introduced to the trial by the companies over the past few months. The exact number is still a little mysterious, as the indexing can't keep pace with the volume, but there are already more than 22,000 exhibits on the exhibit database.

At times, batches of documents numbering in the dozens or even hundreds have been entered in one fell swoop, each having been given a pre-assigned exhibit number. This new process was encouraged by Justice Riordan at the beginning of this year, and is an obvious time-saver for everyone.

But a significant asymmetry in the new approach was revealed following cross-examination last week of JTI-Macdonald's historical witness, Robert Perrins. No matter what the companies' lawyers had been able to do earlier in the trial. What did matter was that Justice Riordan could not take away the companies' right to deny consent.

Like a game of snakes and ladders, the plaintiffs found themselves back where they began - having to satisfy the time-consuming procedural hoops used earlier in the trial. Moreover, by having consented to the industry's fast lane, they had created a one-sided trial record of objections and rulings on these issues.

Yesterday's reminder from the Judge seems to have been a turning point. This morning the plaintiffs came to court with a new game-plan. For today, at least, they would try to remedy the situation with what André Lespérance called "therapeutic" objections.

The best laid plans

The witness scheduled to testify for the bulk of this week is the mild-mannered scientist, Andrew Porter. His testimony is a way for his former employer, Imperial Tobacco, to provide a counter-narrative to the allegations about the company's scientific knowledge and activities.

(Over a year ago, Mr. Porter first testified as a fact witness for the plaintiffs. The scientist who was originally chosen by ITL to present its scientific defence, Stewart Massey, passed away early in 2013).

Documents waiting
for Mr. Porter's appearance 

Primed to help Mr. Porter through this task today was Nancy Roberts. Today she arrived equipped with a thick binder of prepared questions and several boxes of documents,

Given the events of the past months, Ms. Roberts could be forgiven for expecting that her main challenges would be to try to match the speed with which her colleague, Suzanne Côté, can plow evidence into the trial and to have this witness provide memorable - or at least intelligible - testimony.

But neither Ms. Roberts nor her seat-mate today, Deborah Glendinning, were in court yesterday and it may be that no one had briefed them that Justice Riordan had pretty much forced the plaintiffs to show a little muscle.

What goes around, comes around

It wasn't long into Mr. Porter's testimony that it became clear that today was not business-as-usual.

Ms. Roberts found herself facing a barrage of objections. Mr. Lespérance and Mr. Boivin were a tag-team. Hearsay. Opinion. Irrelevant. Improper for a fact witness. Leading. Not the right witness for the document. 

Justice Riordan showed the same even-handedness as he had yesterday. Deciding that the sauce for the goose would be applied to the gander, he upheld the same kinds of objections that he had supported from Imperial Tobacco's team in earlier parts of the trial.

With her body language alone, Ms. Roberts gave every indication of being both surprised and offended by the turn of events. Her shoulders arched back and her chin rose a few inches as she frostily defended the line of questions she had prepared, many of which seemed to leave her vulnerable to attack.

While the tension rose at the front of the room, those of us in the back leaned in to watch, trying to hide our smiles.

"I don’t think they are doing anything different," he responded to Ms. Roberts' complaint after he upheld yet another objection and put yet another of her exhibits under reserve. "I am not commending or condemning. They are doing exactly what you did."

By mid-afternoon, Mr. Lespérance let up his objections (perhaps because the documents that were being introduced at this point were hard to object to).

But the plaintiffs' new tactic had found its mark. What's more, Ms. Roberts had let the interruptions get under her skin. She responded in ways that made her reaction to adversity -- and not her witness' testimony - become the take-away message of the day.

The Science Guy returns

At the best of times, Mr. Porter is a challenging witness to follow. He begins his answers in an almost inaudible tone, and then allows his voice to fall even further - well beyond the capacity of the courtroom's sound system. But even at full volume and in complete sentences, his ideas would be challenging to follow.

Today, for example, he spoke about seemingly mysterious ways that BAT and Imperial Tobacco measured the multi-syllabic compounds found in tobacco smoke. "Aliphatic aldehydes" anyone?

Despite Ms. Robert's encouragement for the witness to "break it down", his explanations failed to meet the layman test. (Mr. Perrins, the historian who testified last week, did a much better job of explaining scientific concepts).

The scientific details might have been poorly understood, but the messages Ms. Roberts was trying to convey came through quite clearly:

* Imperial Tobacco allowed its scientists to publish information in external peer-reviewed journals. Provided "it was good research" and there were no concerns about losing proprietary information to competitors, the scientists were free to publish.

* Imperial Tobacco's research was well respected, has been cited by health authorities, and is now the basis of industry or regulatory standards.

* Imperial Tobacco's research was published in the scientific press. There was never any attempt by the company to conceal that tobacco smoke contained toxic chemicals, nor to deny that tobacco smoke was mutagenic.

* That whatever the trial might have heard earlier, Ames tests are important and useful.

 * That Imperial Tobacco has used many tests to measure toxicity or other harmful properties of cigarette smoke (mouse skin painting, Ames, nitromethane fraction index, paramecium, ciliatoxicity, hyperplasia, protozoon, DNA synthesis, invitro mitronucleus, neutral red uptake assay, etc.)

* "Project Day" was a sincere scientific effort by Imperial Tobacco to find a less harmful cigarette. It was not, as the plaintiffs have suggested, a marketing ploy.

Mr. Porter will testify tomorrow and Thursday.

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

Day 46: If there's a contradiction, there's a contradiction

Former Imperial Tobacco marketing executive Jacques Woods arrived almost ten minutes late for his third (non-consecutive) day of testimony because he stopped in the hall just outside courtroom 1709 to have a conversation with Rothmans, Benson and Hedges lawyer Jean-François Lehoux as the rest of the lawyers and court observers sat waiting inside. When Mr Woods finally did stroll into the courtroom at almost twenty-to-ten, he stopped to greet some of the other tobacco industry lawyers with big smiles and hearty handshakes, seemingly working the industry side of the room like a politician. Once he finally settled into the witness stand, the court staff called the judge so that the day could get underway.

It didn't take long for Mr Woods to lose his jolly demeanour once plaintiff-side lawyer Bruce Johnston began questioning him. Mr Woods would spend most of the remainder of the morning frowning at Mr Johnston, the smile he had on his face while greeting the tobacco industry lawyers long gone.

Mr Johnston began by delving into the issue of whether Imperial Tobacco marketed its brands with implied health claims. Mr Woods initially insisted that Imperial never marketed its products this way, so Mr Johnston directed him to Exhibit 133. This exhibit is an April 1978 memo by Anthony Kalhok, Imperial's Director of Marketing and Mr Woods' boss, in response to a request that went to him and other senior Imperial Tobacco executives to select, from a list of fifty statements, the six with "the most important implications for the future of our tobacco business". One of the six statement that Mr Kalhok selected was option #42: "Companies will increasingly sell products for which health claims may be implied." He then wrote:

With the exception of #42, we will have to find ways and means to stall the implementation of the above or counteract their effects.

Mr Johnston pressed the witness to either provide a good explanation for what his boss apparently believed or change his testimony that Imperial did not market its products with implied health claims, but Mr Woods would do neither. Justice Riordan eventually grew impatient with the verbal dance the lawyer and witness were engaged in jumped in to cut off the line of questioning: "I don't see what trying to get into Mr Kalhok's mind is going to get us. [Mr Woods has] told you what's in his mind. If there's a contradiction, there's a contradiction."

"And I submit that there isn't", interjected Imperial Tobacco lawyer Deborah Glendinning.

"That's for me to decide," the judge replied.

Justice Riordan's intervention here pinpoints a critical issue in the case. Since the plaintiffs need to rely to a large extent on witnesses who are current and former tobacco industry executives or employees, most of whom are very partial to the defendants, there is a pattern so far of these witnesses testifying to try to minimize or deny any wrongdoing by their employers. The plaintiffs need these witnesses to get a lot documentary evidence onto the record, but they also need to counteract their minimizing or denying testimony. The main way for them to do this is to confront these witnesses with contradictory evidence, like Mr Johnston did to Mr Woods with Exhibit 133 regarding the use of implied health claims to market cigarettes. Sometimes this spurs the witnesses to change their testimony, occasionally a witness has had a good credible explanation for why the document is not what it seemed on its face but, most of the time, like in the exchange above between Mr Johnston and Mr Woods, the witness doesn't have a good explanation but won't change their story either. This is where it will ultimately fall to the judge to examine the contradictions and assess the credibility of the witnesses.

This pattern continued during the remainder of Mr Johnston's examination of Mr Woods. Judging by his words and facial expressions, Mr Woods did not seem to like being confronted with contradictions by Mr Johnston, at one point complaining that Mr Johnston's questions were wasting his time. Mr Woods seems to have a very high opinion of his own intelligence as well; at one point Mr Woods heaped praise on a former colleague as having been extremely intelligent and mentioned that he needed to ask Imperial to pay for him to get remedial statistics training to keep up with the smart young people who were coming into the marketing department in the late 1970s. When Mr Johnston summarized Mr Woods' testimony as having been that this colleague was smarter than him, Mr Woods interrupted to say "I never said he was smarter than me."

Mr Johnston came back to the issue of implied health claims by introducing Exhibits 511 and 511A. Exhibit 511 was Mr Woods' personal hand-written notes (in French, his first language) taken while going over some survey data comparing whether to market Trojan cigarettes in French as "la plus douce" (the freshest) or "la plus faible" (the mildest). Exhibit 511A was the memo he later produced on the subject (in English). Mr Woods' wrote in his notes that the survey repondents associated "la plus faible" with reduced nicotine for better health. This was the slogan he recommended.

Mr Johnston asked Mr Woods if it would be fair to say that, when he recommended "la plus faible", he did so in full awareness that some people would take this to mean it was a healthier cigarette. Mr Woods replied that, even if some people saw it that way, that was not his goal.

Exhibit 512 was a 1977 study on attitudes toward Imperial's Peter Jackson brand. Mr Johnston honed in on the following line: "Former PJ smokers could be divided into two groups. The first on (undoubtedly the largest group) remain very positive about the brand because they switched to a perceived milder brand due to health concerns." When asked by Mr Johnston if marketing had an impact on people perceiving other brands as milder, Mr Woods minimized the impact of advertising but did note that Imperial worked on developing products that tasted milder and this "seems to have succeeded with these people."

On cross-examination, Imperial Tobacco lawyer Craig Lockwood led Mr Woods to say that the reason Imperial did extensive research on teen smokers below the age of 18 was that that is the age that most brand switching occurs, so research on that age group is necessary in order to understand brand switching (although this did not explain why Exhibit 158, a test marketing plan for Player's Light codenamed "Project Huron", identified males aged 15-25 as the target audience).

Mr Lockwood also led Mr Woods to try to explain away compromising statements in memos produced when Mr Woods was part of Imperial's strategic planning group by leading him to say that ideas from the strategic planning group were often "blue sky exercises" (Mr Lockwood's words) that were never implemented.

Two Other Witnesses Return

Once Mr Woods' testimony wrapped up in the late morning, former Imperial research scientist Andrew Porter returned to wrap up his testimony as well. Mr Porter had already been cross-examined by the industry lawyers, so plaintiff lawyer Pierre Boivin was limited to redirect questioning on topics raised during cross-examination. During Imperial lawyer Deborah Glendenning's cross-examination, she led Dr Porter to minimize the health effects of smoking by pointing out that, like cigarette smoke, water and barbeque contain carcinogens. (Blurring the health risks of smoking by drawing false equivalencies between tobacco and other less harmful products, most commonly alcohol, is a common tobacco industry tactic.) Justice Riordan quickly grew impatient with Mr Boivin's questioning to establish the rather obvious fact that eating barbeque is far far less harmful to health than smoking, perhaps because by this point the morning court session was in overtime and all the talk of barbeque was reminding everyone that it was lunch time.

Mr Boivin wrapped up with Dr Porter by returning to the issue of why Imperial did not inform the public about Dr Porter's research that showed that smokers compensated for so-called light and mild cigarettes by inhaling more deeply. Dr Porter repeated his earlier answer that his audience was the scientific community, and it was the responsibility of journalists to report on the findings he published in scientific journals if they found them newsworthy.

The afternoon saw the completion of the testimony of retired Canadian Tobacco Manufacturers' Council communications officer Jacques Lariviere. A few new exhibits came in through his testimony which, at the time of publication of this blog, are not yet posted on the plaintiffs' website. Some of these exhibits had to do with second-hand smoke, which brought on numerous objections from the industry lawyers and lengthy debates over the objections. This is because the court has previously ruled that second-hand smoke is not an issue in the trial except to the extent that the industry's conduct concerning on second-hand smoke affecting smoking rates, like efforts to dismiss or minimize the health effects of second-hand smoke to make smoking more socially acceptable.

Mr Lariviere, an older overweight man who needed to sit during his testimony, seemed to struggle with having to leave and re-enter the courtroom so many times while the lawyers debated the industry objections, but he took it with good humour joking with Justice Riordan that he needed the excercise anyway. Instructions for accessing the latest exhibits can be found at the bottom of this blog entry.

Tomorrow, the last trial day before the two month summer pause, no witnesses are scheduled, but the lawyers are scheduled to make legal arguments.

By Michael DeRosenroll for Cynthia Callard

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.

Day 35 - World No Tobacco Day

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

During Dr. Andrew Porter's third day on the witness stand at the Montreal class action trials against Canada's tobacco companies, an overarching narrative of his work over 30 years at Imperial Tobacco finally began to take shape.

Many of the technical and linguistic issues that had strained the first two days seemed to have resolved themselves by Thursday and the conversation between lawyer and witness became more coherent and instructive.

These exchanges, and the dozens of documents entered into evidence revealed two major streams of work for Dr.Porter and his science team. The first was finding ways to modify cigarettes to ensure they remained effective drug delivery systems and  the second was searching for ways to modify cigarettes to make them less effective as disease-delivery systems.

As he had for the first two days, Plaintiff lawyer Pierre Boivin led the questions in the morning, focusing on efforts by the scientists to find ways to adapt their products to the real smoking behaviour of their customers and on ITL's flagship harm-reduction initiative, Project Day.

ITL's better smoking machine reveals that smokers compensate.

Pierre Boivin began the morning by asking Dr. Porter about the company's research into ventilated cigarettes and smoker compensation.

Dr. Porter explained that lower tar cigarettes are made principally by adding air to the cigarette through holes in the paper. Such cigarettes give lower levels of tar when smoked by machines using the measurement standards set by the International Standards Organization and the U.S. Federal Trade Commission. (Health Canada with the support of the British Columbia government pioneered a more "realistic" smoking standard in 1999-2001.)

Pierre Boivin introduced documents that suggest that Imperial Tobacco and BAT were among the first to prove how different  the ISO/FTC measures were from actual smoker behaviour. As early as 1975, Imperial Tobacco had developed its own smoking machine to test what smokers actually inhaled -- finding that all tested smokers changed the way they smoked "in order to duplicate his normal cigarette nicotine intake." (Exhibit 389).

By the mid 1980s (at a time when governments were struggling to accept the limitations of a 'low tar' approach) BAT scientists were sharing research showing that puff volumes have risen as inexorably as machine deliveries have declined... human compensation has, for a significant part of the smoking population, negated attempts to reduce tar deliveries. (Exhibit 391).

In other words, at the same time the company was introducing many lower-tar products on the market, it knew that these products were being  'over-smoked'. No evidence that this knowledge was shared with the public or government has yet been produced.

Since smokers compensate anyway, why not make it easier?

A second series of documents introduced by Pierre Boivin showed that the company not only knew that smokers compensated, but researched ways to design cigarettes that made compensation easier.

In the mid 1980s, BAT was promoting the idea to its affiliates that a better idea than selling low-tar cigarettes that smokers didn't like 'would be to produce a cigarette that can be machine smoked at a certain tar band, but which, in human hands, can exceed this tar banding." (Exhibit 391). They called this quality of cheating the machines "elasticity".

Elasticity was one concept that Imperial Tobacco investigated as it applied the results of its (secret) human smoking tests to its product design, recognizing that "elasticity in the product will give the smoker a greater opportunity for compensation." (Exhibit 358 H), If another wave of tar-reduction were to approach, elastic cigarettes would help make low-tar cigarettes agreeable to smokers (because they wouldn't actually be low tar). (Exhibit 358-G.) A number of design features could be used to achieve elasticity (Exhibit 393).

(A shout out here to my colleagues who studied cigarettes on the Canadian market and found that the ones that sold best were indeed the ones that were elastic).

The evolution of machine deliveries from benchmarks to marketing tools is reflected in a research project entered as Exhibit 358 J. Responding to the adoption of an international (ISO) standard of measurement, Imperial decided that rather than risk putting new numbers on their products, they would redesign the cigarettes so that they matched the previous test results. 

ITL's safer cigarette still hasn't seen the light of Day.

Dr. Porter worked on a number of projects aimed at reducing toxic compounds in cigarette smoke, but ITL's major effort in this regard (as other witnesses, like Jean Louis Mercier, have also testified) was Project Day.  

This project began in earnest in the late 1980s, (Exhibit 395, 396, 397 and 398) and apparently continues to this, um, day.  In its initial stages it was concerned with reducing the compounds that caused lung cancer.  It wasn't that other diseases weren't important, said Dr. Porter, but every journey starts with one step and we thought this was the most important step.

Ten years after the project began, a review was conducted of progress to date. (Exhibit 400) Of the three reasons given internally for the project, none dealt directly with the concept of not harming the smoker.

Reason #1: Consumers want it.
Governments, anti's and media have promoted all kinds of statistics talking about chemical components of tobacco combustion creating a consumer demand for a product with less of these undesirable[s]

Reason #2: To beat the competition.
The first one to do it right will therefore impact the industry drastically.

Reason #3: To not be caught unprepared for regulations.
The time table would be determined for us, and lack of preparation could result in having to launch a sub standard product.

Making nicotine more powerful

The plaintiff lawyers have now adopted the pattern 'switching-up' their team in the last part of any witness examination. At lunch time, André Lespérance took over, and brought his gentle approach to the subject of smoke pH and free nicotine.

It was a subject that needed a second airing, for earlier Dr. Porter had  thrown dust on the issue, saying that measuring pH in tobacco smoke was controversial and suggesting it was only done in response to government demands. He had also earlier testified that free nicotine was an undesirable characteristic of tobacco smoke as it made cigarettes seem too strong and resulted in smokers not inhaling as deeply (giving a slower nicotine delivery).

Mr. Lespérance began by asking for an explanation of pH numbers. Dr. Porter began unhelpfully It's the inverse of the log to the base 10 of ... Mr. Lespérance tried again. What would a marketing guy answer? 

Dr. Porter gave a more lawyer-friendly explanation, pointing out that 7 was a neutral solution, and that anything above that was alkaline, and anything below was acidic.

With a clearer understanding of pH numbers in the court, Mr. Lespérance returned to the subject of free-base nicotine, and how that was generated by changing the pH level of smoke. He showed Dr. Porter a  memo written in 1980 by his co-worker (Exhibit 377 A) that discussed Imperial Tobacco's attempts to use alkaline substances in filters to increase the pH. The experiment showed that alkaline filters increased the amount of nicotine in the smoke in ways that suggested higher levels of free nicotine.

Justice Riordan asked the witness: What is the practical effect for the smoker of increasing the alkalinity? Dr. Porter replied: More impact, more irritation - the sensation of a stronger smoke and nicotine will be higher.

Now the value of pH was made clearer to the court.

Okay, so when is epidemiologic evidence acceptable and when is it not?

In the closing part of his testimony, Dr. Porter was asked about his beliefs about the harmfulness of cigarette smoking.  Earlier he had talked openly about carcinogenic, mutagenic and toxic substances in smoke, but when the questions focused on whether cigarettes actually caused cancer, his answers gravitated to the company position.

He wanted to clarify his position, he said. It wasn't enough to have risk factors established, he said, he couldn't agree that there was a causal relationship. As a scientist I have to know the mechanism by which it acts.

Are you saying that it is impossible to conclude scientifically today that smoking causes any disease? 
I  personally don’t know. As a scientist I can't say yes for sure that is it. We don't know which carcinogens in smoke are responsible for cancer, we can't conclude that.

So when you see on cigarette packages to day cigarettes cause cancer, do you agree?
It may do. I don’t personally know. 

Later, under questioning by Imperial Tobacco's lawyer (Deborah Glendinning), he appealed to the need for epidemiology before knowing whether the reductions of toxins in cigarette smoke would actually make cigarettes less harmful.

The company line is hard to forget

On another key issue in the trial - the marketing of an addictive product - Dr. Porter also shaped his responses to align with statements by his former colleagues that 'addiction' is an issue of semantics more than one of brain-chemistry.

Do you agree that smokers are addicted?
It depends on the definition of addiction. When I started smoking, the Surgeon General's report said it was a habit. Twenty years later it said it was an addiciton. I’ll go with whatever the definition was.

When you were at ITL, what were your views?
My views were that I enjoyed smoking and it was hard to give up.

Informing the public

The position of ITL former employees and lawyers continues to suggest that their private communications with government departments satisfies any obligations they may have had to provide information to their customers.

On Wednesday, Dr. Porter had been shown an early (1959) study by BAT which found that the closer a cigarette was smoked to the filter, the greater the amount of  3,4 Benzpyrene was produced. (Exhibit 346) He agreed with the findings - but did smokers know that they inhaled more cancer-causing chemicals if they smoked to the butt?

Do you know if ITL ever told that to its customers?
It published this particular analytical method in one of the tobacco chemists meetings - as far as I remember - in the 60s.  It's call the Tobacco Chemists Research Conference. It's an annual conference that tobacco chemists go to and talk about their work, and it's open to the public.

Do you know if they ever directly informed their customers in any other way?
I don't know. They certainly informed Agriculture Canada because they were at the meeting.

Why Dr. Porter would know the participants' list at a conference that took place while he was a high school student remains a mystery. ITL lawyer Deborah Glendinning did, however, provide a copy of the conference notes from 1963, showing that a John Anderson from Agriculture Canada had attended.  (Exhibit 367A - not yet available).

Under questioning by Ms. Glendinning, Mr. Porter said that Health Canada had regularly been briefed on its research efforts.

Was there a regular dialogue between Imperial Tobacco and Health Canada and Agriculture Canada? Were they kept generally advised on ITL's attempts [to reduce toxins in cigarettes]
Oh yes. Absolutely.

Was this information flow fairly regular?
Yes.

And has Health Canada been briefed on Project Day?
Several times.

Was Health Canada aware of efforts of Imperial Tobacco to reduce Tobacco Specific Nitrosamines?
Yes, they were.

With respect to the reductions achieved, has health Canada ever accepted this as being as safer?
Not to my knowledge.

There you have it. If you are a smoker and want to know more about the safety of the products you buy, you only have to register at the Tobacco Science Research Conference, or lobby to have the trade-secret provisions of the Access to Information Law rescinded.

Only to return ...

In the end, Dr. Porter's testimony did not finish today.  By the time the industry lawyers had conducted their short cross-examination (during which he affirmed that Canadian cigarettes had no additives, that no elastic cigarettes had been put on the market, and that a low tar cigarette could not be 'over-smoked' to give higher deliveries than its parent brand), it was nearing 5 o'clock.  The lawyer for the federal government, Mr. Maurice Regnier, said that he would not be able to complete his questions in a few minutes, and Dr. Porter was scheduled to return on June 11th.

The court does not sit on Fridays.  On Monday June 4th, the current president of Imperial Tobacco, Marie Polet, will appear.  This will be one of her first public appearances in Canada since her appointment to the president's office of Canada's largest tobacco company last July.


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.

Day 34 - Science class with Dr. Porter

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

If your eyes glaze over before you reach the end of this sentence, you will know that I have accurately captured the atmosphere today in the Montreal courtroom where Canadian tobacco companies are facing claims for $27 billion in damages.

Still with me?

Today was the second day of testimony for Dr. Andrew Porter, who worked as a chemist in Imperial Tobacco Canada's laboratories for about 30 years, starting in 1977. It felt like a very long day.

Yes, Virginia, tobacco smoke is toxic

During the first day of his testimony, Dr. Porter had made several references to the "Hoffmann list" of harmful compounds in tobacco smoke, developed by pioneering tobacco researcher Dr. Dietrich Hoffmann. Today, plaintiff lawyer Pierre Boivin began his questioning by producing a 1997 memo written by Dr. Porter's former boss, Dr. Stewart Massey, about the Hoffmann list (Exhibit 364). He started to ask Dr. Porter to provide details on the chemicals on the list, but when he arrived at the second substance (hydrogen cyanide) he was interrupted from the bench.

The court had been in session for only 10 minutes, and already the Judge was impatient.

Justice Riordan: You aren’t going to go through this list one by one!  Couldn’t you just ask him to say which ones aren’t carcinogenic?

Pierre Boivin: Okay, your honour. Dr. Porter, out of these chemicals, which ones weren't toxic or carcinogenic?

Dr. Porter. They were all known to be toxic or carcinogenic.

Justice Riordan.  You just shortened the trial by a week.

This exchange and the laughter that followed revealed the challenging nature of bringing science into the court room. Much easier to just accept that there are a week's worth of harmful chemicals in cigarette smoke than to delve into the details of a subject matter about which most in the room have little knowledge, and maybe even less interest.

Andrew Porter is no David Suzuki

If the scientific research conducted by Imperial Tobacco and its research partner/parent company, British American Tobacco, is in anyway interesting, you would not have known it from Dr. Porter's testimony.

It is not fair to expect a witness who has been summoned by lawyers seeking $27 billion from the hide of his former employer to make it easy to follow the company's secret research. But the content under discussion today is most certainly more riveting and important than Dr. Porter's trailing voice, mumbled replies, and overly complicated explanations would suggest.  (Would you have thought, for example, to define 'urea crystals' as he did -- an excretory product from the mammalian system in crystalline form ?)

This witness clearly was not going to volunteer to 'connect the dots' to produce a picture of his work of 30 years. Nonetheless, Mr. Boivin was able to use his presence in the court to put many important dots on the record.

More than 30 scientific documents were entered into evidence today, and later these may be used to give a clearer story of the role ITL's research team played in Quebec's tobacco epidemic. For tonight, just a sampling of the variety of material presented to the court.

Canadian cigarette additives: the K-numbers

Exhibit 374 -
Proprietary Additives

A previously unknown list which came to light today was the K-code of  additives kept by Imperial Tobacco.  The coding was used to maintain trade-secrecy. The suggestion by ITL that it is no longer in the additive business is weakened by the fact that it continues to claim trade secrecy over these numbers - much of Exhibit 372 was redacted.  Another list from 1984 annotated the use of more than 10 common additives in fine-cut tobacco, and referenced a further list of 53 "proprietary additives." (Exhibit 374)

Some of Dr. Porters research on these additives was also presented (Exhibits 378, 379, 380).

A more sensory cigarette.

BAT's web-site profiles research on making cigarettes less toxic and doesn't mention any research done to make cigarettes easier to smoke, more addictive or cheaper.  But the research strategy documents presented today suggest that the company had a research directive to make the "sensory" experience of smoking more pleasurable. (Exhibits 382, 381A).

To this end, BAT's researchers in Germany were looking at adding analgesics to make smoke less irritating, and its Montreal researchers were anticipating that reducing tar while increasing nicotine would require additives to keep cigarettes from being too irritating. (Exhibit 386).

Improving nicotine.

Tobacco trials in the U.S. were a key development in public knowledge about tobacco science and the use of ammonia and other means to enhance the effect of nicotine (see, for example, Hurt and Stevenson). When the "secret of Marlboro" was exposed, the world learned that ammonia was used to produce 'free-base' nicotine (a nicotine molecule with fewer bits hanging on to it giving it a faster drug effect).

Dr. Porter repeatedly dismissed the idea that unprotonated ('free-base') nicotine was a desirable cigarette characteristic. My understanding is that free base nicotine makes the cigarette very irritating. ... When you have free base, more is inhaled in the upper part than the lower part and takes longer to get to the central nervous system.

In research notes from the mid 80s, however, he wrote of interest in BAT in using free-base nicotine to improve "smoking pleasure and satisfaction" (Exhibit 358B). In 1985, BAT was looking at free nicotine to modify the sensory effects of smoking and ITL was looking at many ways to boost nicotine (Exhibit 377).

On many of the nicotine-related questions, Dr. Porter countered popular understandings. Smokers did not adjust their smoking to ensure a steady nicotine level, he said, but relied on all sorts of other cues and behavioural issues - like whether they smoked alone or in groups.  Again, his testimony was somewhat at odds with the documents from his department, which spoke of smokers' maintaining nicotine blood levels. (Exhibit 385).

He did, however, agree with the sentiment that "to benefit the industry, nicotine should be promoted as a useful and versatile drug" (although he said he would have phrased it differently).

Turns out smokers compensate after all

One of the areas of research expertise at the ITL laboratory in Montreal was smoker behaviour. They pioneered research methods to measure how smokers actually smoked. These methods allowed the industry to know years before government that smokers were defeating the design of low-tar cigarettes by inhaling more deeply and more often than they had on higher tar cigarettes.

Documents filed traced the decades' old knowledge at Imperial Tobacco that smokers of low-tar cigarettes would get more tar and nicotine from the cigarette than the machine-smoking values on the package suggested. Dr. Porter authored a review of ITL's research in this area from 1978 to 1994. (Exhibit 388).

Hidden truths

Each of the witnesses from Imperial Tobacco has provided their own flavour to this trial. Some have forgotten the answers, some have skated around the answers, some have misunderstood the questions. Dr. Porter seems to have a talent to make very revealing answers sound uninteresting.

Tomorrow is expected to be his last day at this trial.

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.

Day 33 - The Science Guy

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

Today the world of tobacco science and the world of law entered each other's orbits when a former scientist for Imperial Tobacco Canada Ltd., Dr. Andrew Porter, testified at the class-action trial against Canada's three large tobacco companies.

One tobacco scientist too many

Science class calls for tutors - and new faces were seen on the benches of the legal teams and in the audience. Among the new faces was one familiar to many in the room, Dr. Murray Kaiserman, who has recently retired from his position as director of research at Health Canada's tobacco unit. He was there to assist the federal government in its defense against the claims by Imperial Tobacco and other companies.

Dr. Kaiserman, however, has more roles in this trial than being an advisor to the Attorney General. The tobacco companies have signalled that they intend to call him as a fact witness - and fact witnesses are not allowed to attend the trial before they come to testify.

For that reason, Mr. Jean-Francois Lehoux (who represents RBH) objected to the presence of Dr. Kaiserman, saying that the principle of witness exclusion should apply equally to all parties. The lawyer for the federal government, Maurice Regnier, was unable to persuade Judge Riordan that the complex nature of the case justified the exemption that was applied in precedents he cited. Calling on Mr. Regnier to find alternative technical support, Justice Riordan requested Dr. Kaiserman to leave.

(This was a victory for the tobacco companies. Dr. Kaiserman is generous with his insights and there are only a handful of people working in public health with his expertise in tobacco science.).

The scientist as witness

Dr. Andrew Porter is expected to testify for three days, and much of this first day felt like an introduction to the structure of scientific work at Imperial Tobacco and BAT, the scope of their research interests and the tobacco world behind the laboratory doors.

The only other scientist to have testified in a Canadian tobacco trial was Dr. Stewart Massey who helped defend Imperial Tobacco against a small claims court case filed by Joseph Battaglia related to light cigarettes.

Dr. Porter is a trim and healthy looking man, who gives the impression of being a scientist of the tidy, methodical sort. He was raised in Britain, where he graduated with a masters in spectroscopy in 1971 before coming to McGill to do his doctorate in chemistry. Forty years in Canada have failed to remove his pronounced British accent.

He joined Imperial Tobacco in 1977, completing his PhD three years later. Seven years after joining the company, he was promoted to principal research scientist, a position he held until 2005, when he was seconded briefly to BAT to work on harm reduction research.  He retired in 2007, but works as a consultant to the company on scientific issues.

It was plaintiff lawyer Pierre Boivin who conducted the questions throughout the day. Despite the many differences between them, the lawyer and the witness worked constructively and politely together, and provided a significant quantity of information to the court.

BAT's global tobacco science footprint

The research capacity at BAT and Imperial Tobacco that was described to the court today is truly impressive. Dr. Porter had a staff of 12 who conducted research in the areas of biology, toxicology, smoking behaviour, analytic chemistry, physical chemistry among others. Above him were two other senior scientists - Dr. Massey and Dr. Dunn.  Yet even this research team was small in comparison with the extensive BAT group research unit. (Exhibit 356)

Although Dr. Porter worked several thousand miles from the BAT laboratory in Southampton, he was familiar with many of the scientists there. Scientific meetings were held at least once a year, he said, and there was regular contact as issues arose. A formal arrangement between Imperial Tobacco and British American Tobacco apportioned costs and shared research assignments.

Document destruction / retention

The request by BAT to have its scientific reports removed from ITL's library has been the subject of many questions (and non-answers) over the trial, as the plaintiffs have sought to establish the chain of events that led to over 2,000 documents being repatriated to BAT headquarters. (Exhibit 319J). Of particular interest is the  role that litigation-nervous lawyers played in those events. Today's testimony provided further light on that chapter.

Do you know why there was a change in policy [about document retention]?
No I don’t

Do you know who was in charge?
It came from senior management. We were informed by Dr. Dunn.

You were not curious to know why?
I had some curiosity, yes

What did you do to find out?
I asked Dr. Massey and Dr. Dunn, and frankly I didn’t really understand it. They gave me an answer, but I didn’t understand it. I can't remember what their answer was.

Do you know if it was because of litigation purposes that the documents had to be sent to England?
I don’t know if that was the reason.

Was it one of the reasons given by Dr. Massey?
It was mentioned during the discussion.

Is publication in a scientific journal the same as informing the public?

One of the areas of expertise that Imperial Tobacco's labs offered to the BAT research system was work on a more simple test to assess the mutagenicity (an early step in cancer) of their products. The method they focused considerable energy on was the Ames test, which was invented in the early 1970s.

Mutagenic measures
on smoke from 6
 Canadian cigarette brands 

By 1981, Imperial Tobacco had assessed that the Ames test was an effective and efficient way to measure and compare the damage caused to genetic material by cigarette smoke. (Exhibit 357). This conclusion was based on tests they conducted on various types of cigarettes and various types of tobacco. All of the tests had been "positive" - meaning that all showed the potential to cause genetic damage and lead to cancer.

Do you know if ITL ever advised its customers that all its cigarettes tested positive on the Ames test? the witness was asked. We published – we were the first company to publish the results of tests in 1975 in the Mutation Research journal, so it was known, certainly.

What journal? 
The Mutation Research Journal.

Except for that publication, did you advise in any way or shape the results of your Ames tests?
We certainly presented at conferences and obviously senior management have seen these results, and as far as I know Health Canada was shown as well.

ITL didn’t consider telling all of its customers?
You have to put it in perspective, it can show you a potential, but it doesn’t necessarily mean it will cause you cancer. .. To warn someone on something you are not sure of yourself would be premature.

You didn’t consider it important for your customers to know that the result?
I think that publishing in a journal is tantamount to informing the public. My job is in a scientific area. We make sure that it goes into scientific community . I am not responsible for public affairs.

Your job was not to make sure that your ITL customers were informed that all the tests showed [that your cigarettes made mutagenic smoke]?
Correct.

Whose job was it?
I have no idea.

In a similar vein, Dr. Porter reported that no effort had been taken by Imperial Tobacco to communicate wit consumers about its knowledge of cancer-causing chemicals that are unique to tobacco smoke (tobacco-specific nitrosamines), (Exhibit 360)

Evidence-based systems

Both science and law rely on evidence to reach conclusions, but the culture clash between the evidentiary approaches was very apparent today.

The collaborative arrangement between BAT and Imperial Tobacco meant that the Canadian branch plant often relied on the headquarters for key scientific research findings (this, after all, is what gave rise to the "heated" discussions within ITL about removing BAT documents from the premises). There were many subject areas that the Canadian scientists were not directly involved in, even though they applied the learnings to their work and even though the results influenced the cigarettes that were smoked in Canada.

But scientific reports -- or reports of meetings between scientists that lead to scientific reports -- are only acceptable as evidence in this trial if they can meet the evidentiary tests of Canadian courts.  Justice Riordan, in his May 2 and May 17 rulings, has reduced the burden of those tests considerably. But two documents the plaintiffs tried to put on the trial record today were rejected, as they neither came from Imperial Tobacco nor did they have "an appropriate witness" to validate them. Because of the hub-and-spoke structure of BAT's research function, this is a problem that is likely to reoccur.

In such circumstances, the tobacco lawyers who insisted that minutes of scientific meetings be re-drafted or not circulated to countries where litigation was a concern will have been rewarded for those efforts. Important documents may be excluded from this trial. Another victory today for the tobacco companies.

Can we go now?

This first day of tobacco science required extra effort, and the day was marked by struggles with technology, polysyllabic chemical names, exhibit numbering and microphone management.

By mid-afternoon, despite the instructive and at times very revealing testimony of Dr. Porter, it was clear that that minds were wandering and the clock was being watched.  At  4:30, Justice Riordan pushed for Pierre Boivin to wrap up. "You must be exhausted," he said. "I am."

Science class with Dr. Porter resumes 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.