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| Afternoon recess: André Castonguay waits in the corridor as the industry lawyers caucus behind him. |
There are only a handful of Canadians who have a depth of research experience in tobacco science equal to that of André Castonguay. He began his 30 year research career in tobacco chemistry at the then-renowned American Health Foundation, working as a bench scientist on issues such as "Synthesis of the tobacco-specific nitrosamines, NNN and NNK labeled with 14C,3H or 2H.'
It was to Mr. Castonguay that the federal government turned when looking for experts during their defense against the industry challenges to the 1988 and 1997 tobacco laws. Even after the rapid growth of tobacco researchers, his expertise in the public health components of tobacco chemistry is unrivaled in Canada.
André Castonguay also has the rare gift of explaining science in an interesting and understandable way. The official (French) version of his report is now Exhibit 1385, but an English translation is also available. This report is an excellent primer on the development of knowledge about the constituents of cigarettes (including nicotine), both within the industry and in the public in the outside scientific and health communities.
The attempt to disqualify André Castonguay
Unlike the two previous Quebec-based expert witnesses, Christian Bourque and Alain Desjardins, today's witness faced a long barrage of hostile questions about his qualifications.
From the moment that Jean-Francois Lehoux rose to present the industry's concerns during the "voir dire" of his qualifications, it was clear that Mr. Castonguay was another expert witness to pass the "scream test" of industry opposition.
While no where near as aggressive in his style of questioning as some of his colleagues on the industry's side of the room, Mr. Lehoux was nonetheless much more forceful today in his tone and more pointed in his questions than he had been earlier in the week with Dr. Desjardins.
He put on a stern face, and asked his questions in a more accusatory way, repeating them more loudly if he was not getting the yes/no question he wanted. For almost two hours he asked variants of the same question. "Do you have any direct experience in [subject x]? Have you published in peer-reviewed journals on [subject x]? Is what you wrote [on subject x] entirely based on your reading of other people's research."
Through these questions the court learned that André Castonguay had no such direct experience in cigarette ventilation, filters, tobacco growing, design of smoking machines, cigarette paper, benzo-a-pyrene, mercury, tobacco cultivars, pharmacology, the Delhi Research Centre and the people who worked in it, etc. etc. And of the 4,000 or so chemicals in tobacco smoke, his research focus had been on nitrosamines.
The unrelenting drip, drip, drip of Mr. Lehoux's questions became like a Chinese water torture, so much so that the plaintiffs abandoned their usual approach of letting their witnesses fend for themselves in these unpleasant sessions. Mr. Johnston asked that the questions at least be linked to areas of the report as "we have spent a lot of time on his qualifications in areas that we have not asked for him to be qualified."
Mr. Lehoux asked for André Castonguay to leave the room before explaining that it was their view that he "goes all over the place in his report" and told Justice Riordan that he wanted "to make sure that you are clear on what you are qualifying. ... is he a jack of all trades or an expert?"
The attempt to disqualify André Castonguay
Unlike the two previous Quebec-based expert witnesses, Christian Bourque and Alain Desjardins, today's witness faced a long barrage of hostile questions about his qualifications.
From the moment that Jean-Francois Lehoux rose to present the industry's concerns during the "voir dire" of his qualifications, it was clear that Mr. Castonguay was another expert witness to pass the "scream test" of industry opposition.
While no where near as aggressive in his style of questioning as some of his colleagues on the industry's side of the room, Mr. Lehoux was nonetheless much more forceful today in his tone and more pointed in his questions than he had been earlier in the week with Dr. Desjardins.
He put on a stern face, and asked his questions in a more accusatory way, repeating them more loudly if he was not getting the yes/no question he wanted. For almost two hours he asked variants of the same question. "Do you have any direct experience in [subject x]? Have you published in peer-reviewed journals on [subject x]? Is what you wrote [on subject x] entirely based on your reading of other people's research."
Through these questions the court learned that André Castonguay had no such direct experience in cigarette ventilation, filters, tobacco growing, design of smoking machines, cigarette paper, benzo-a-pyrene, mercury, tobacco cultivars, pharmacology, the Delhi Research Centre and the people who worked in it, etc. etc. And of the 4,000 or so chemicals in tobacco smoke, his research focus had been on nitrosamines.
The unrelenting drip, drip, drip of Mr. Lehoux's questions became like a Chinese water torture, so much so that the plaintiffs abandoned their usual approach of letting their witnesses fend for themselves in these unpleasant sessions. Mr. Johnston asked that the questions at least be linked to areas of the report as "we have spent a lot of time on his qualifications in areas that we have not asked for him to be qualified."
Mr. Lehoux asked for André Castonguay to leave the room before explaining that it was their view that he "goes all over the place in his report" and told Justice Riordan that he wanted "to make sure that you are clear on what you are qualifying. ... is he a jack of all trades or an expert?"
Despite the judge's appeal to link the questions to the report, the questions continued painfully, like a tape on an endless loop. According to Mr. Lehoux, André Castonguay was not an expert, had never published and relied on reading in areas of oncology, genetics, pathology, compensation, hole-blocking by smokers, cigarette elasticity. On and on it went.
No one expects the Spanish Inquisition
Finally, Mr. Lehoux changed tack. As though it were a rabbit out of a hat, he produced a curriculum vitae that André Castonguay had forwarded as a potential witness in the (failed) Sparkes class action in Newfoundland. In this resumé, he had listed himself as a “tobacco chemist and tobacco control advocate.” (Exhibit 30011).
Are you an advocate? Mr. Lehoux accused. Without too much apparent concern, André Castonguay agreed that based on the Oxford dictionary definition they provided, he was indeed an advocate.
In his next question, Mr. Lehoux went even further. "Did you join the religion against tobacco use?" (In translating it to English, it sounds even more inquisitorial!)
"Well, yes" said André Castonguay, unapologetically. "I am for the control of tobacco. I believe in interventions to reduce tobacco. It is a personal belief. If one is religious it is because one is convinced. I am strongly convinced about tobacco control."
This answer was not precise enough for Mr. Lehoux, who asked again, more forcefully. "Did you join the religion against tobacco use?"
"Yes."
"Yes."
Doctus cum libro?
Finally, Mr. Lehoux wound up his questions, and after a few short questions from RBH lawyer, Doug Mitchell, the companies began their pitch to have most of his expert report struck down.
"The only conclusions in his report that are related to his personal experience are those that are related to nitrosamines," said Mr. Lehoux. "Everything else is based on his reading." The court should not rely on book-learning (doctus cum libro), he said, especially from someone who in his interpretation of industry documents is playing the role of an advocate or even a judge.
In a flourish of unacknowledged irony, after taking two hours to ask questions that could have been answered in one-tenth the time, Mr. Lehoux concluded that "it was not a good use of the court's time to spend two, there or four days listening to his exploration in areas outside of his expertise."
Mr. Castonguay is qualified and his report is accepted
When the court resumed after the lunch break, Justice Riordan said he did not have to hear any arguments from the plaintiffs before rejecting the industry's request. He was unusually peremptory, and his ruling - despite the carefully worded statement about their ability to raise concerns in their later arguments-- had the feeling of being a rebuke.
No safe level of exposure
It is not clear whether Pierre Boivin intended to ask only a few questions to his witness, or whether he changed his strategy to respond to the day's events. For whatever reason, he asked Mr. Castonguay a small handful of questions that fit closely to his background as a chemist.
He began by asking Mr. Castonguay to describe the nature of tobacco-specific nitrosamines, such as NNN and NNK, and their discovery in tobacco smoke in the mid 1970s. Dr. Castonguay explained that these potent carcinogens would not be in cigarette smoke if the nicotine were removed from tobacco before cigarettes were manufactured.
He asked whether there was a safe level of exposure to cigarette smoke, and Mr. Castonguay referred to the 1981 Surgeon General report which concludes at the outset that "there is no safe cigarette and no safe level of consumption."
He reminded the court of the testimony last September of JTI-Macdonald Scientist, Ray Howie, who said that the "tiny tiny amounts, if it's not nanograms, it's picograms" were "so small that it really doesn't harm anyone."
"Dr. Castonguay, how many molecules of benzo-a-pyrene are there in a nanogram?"
"There would be trillions of molecules of benzo-a-pyrene. A picogram is very small. It's not visible. but it nonetheless contains an enormous number of molecules."
Mr. Castonguay was given the opportunity to comment on some responses provided by Rothmans, Benson and Hedges to the questions it was required to answer during this trial, and their claim that "the degree of risk increases with an increased dose of exposure to a carcinogen beyond a certain dose." He referred back to the work of the International Agency for Research on Cancer (Monograph 83) to support his view that there are some carcinogens in smoke for which there is not a threshold value below which exposure is "safe."
And then Mr. Boivin sat down. It was 3:00 o'clock.
The tobacco companies were clearly non-plussed. They were not prepared to start their cross-examination, and they had no apparent desire to spend 90 minutes extemporizing. For fifteen minutes they caucused furiously in the hallway, before returning to report that they were prepared to begin their cross examination tomorrow, but were not sure they would be able to complete it in the day allotted.
"Your efforts to make sure it is finished tomorrow would be appreciated," said Justice Riordan in a tone that makes me think that it is highly likely that tomorrow will be Mr. Castonguay's last opportunity to offer his views on tobacco chemistry.
Tomorrow is the last sitting day this week. Mr. Castonguay will be cross-examined by the defense legal teams.
