For information on accessing documents, see note at the end of this post
There was a lot of unintended humour in this morning's discussion about the forthcoming testimony of noted McGill epidemiologist, Jack Siemiatycki, at the Montreal tobacco trials.
This discussion came in lieu of Dr. Guertin's testimony, which had ended a day earlier than expected. (Is it a courtroom application of Parkinson's law that arguments expand to fill the time available?) The key question under debate was whether Mr. Siemiatycki should be allowed to testify as scheduled next week.
Mr. Siemiatycki had been engaged by the plaintiffs to give an epidemiological review of the four diseases covered by the Blais-CQTS lawsuit and to estimate the numbers of Quebecers affected. (For those who don't like suspense, his answer is that "from 1995 to 2006, there were 110,282 Quebec residents who suffered from one of the four diseases and who would have had probability of causation greater than 50% that the cause was cigarette smoking.")
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| Click to enlarge - Siemiatycki estimates |
His long expert report, written in 2009, makes clear that he did not pull those numbers from a hat. He supports his findings with 50 pages of descriptive analysis and 33 pages of tables. To this belt of method, he then adds the suspenders of a 97-page appendix of previous epidemiological reviews.
But rather than settling the matter, these 200 pages of research material provided fodder for criticism from willing hands engaged by the tobacco companies. (Links to critiques of the industry witnesses are at the end of this post).
Five US-based consultants had criticized, among other things, the studies that had been included or excluded from Mr. Siemietycki's analysis, the approach he took to estimating smoking histories, and the absence of a way of distinguishing between diseases that had been caused by wrongful tobacco marketing and those that had resulted from fault-free marketing. In addition to these concerns, there are many many complaints about epidemiological methodology that are lost on me.
Damned if you do. Probably damned if you don't.
A comprehensive response by Mr. Siemiatycki to these criticisms was clearly no small task.
About a month ago, Mr. André Lespérance informed the court that his expert had indeed prepared a response to his critics, and that this reply involved some new data. He undertook to provide the information by this week (February 8-11), and sought guidance on whether a powerpoint presentation could be used as a tool to simplify the communication of his response. (There was no wide agreement on the use of powerpoint, which seems a pity given the state of science literacy in Courtroom 17.09).
The material was apparently circulated last Friday, as promised, and the reaction was fast and furious. Each of the companies' lawyers was in high dudgeon this morning about the length of the additional material (102-pages), the length of time that had elapsed since their criticisms were levelled and the response was circulated (two years), and the inclusion of new material - even when new material had been demanded by the critics.
Before the session opened, Mr. Lespérance was seemingly trying to persuade the other side to come to an agreement on how to proceed, but to no avail. With three angry opponents threatening to block next week's testimony, he rose at the beginning of the session to present the issue to Justice Riordan and to propose three options to manage opposition. Each of these proposals would have deferred all or portions of Mr. Siemiatycki's testimony.
Jaws dropped when Justice Riordan raised the offer for the plaintiffs before discussions began. "I see a fourth option," he said. "We could do it as foreseen, and I will hear objections and rule on them at the time." At this comment from the bench, faces on the plaintiff's side relaxed (I am sure I saw a "thumbs up!" signal pass among them), and the lawyers for the defendant companies stiffened in their seats.
Simon Potter (RBH) was the first to detail his objections. With his trademark drama he waved the new report in the air (Justice Riordan decline the offer of a copy). His major complaint seemed to be that Mr. Siemiatycki had done the work his critics suggested.
"Included is a huge piece of work done by Siemiatycki himself! ... The new report is replete with the words corrected or revised ... Instead of responding to criticism by saying he didn’t have to [make the changes his critics demanded], he has now put in a massive amount of work...."
Kevin LaRoche (JTI-Macdonald) who is an infrequent presence in this courtroom, was less over-the-top in vocal mannerisms but no less melodramatic in his objections. "Not only do the [industry] experts need time, but I need time. The suggestion that this gentleman should be able to stand up next week is inconceivable to me."
How dire was it in Mr. LaRoche's view? Bad enough to call in the benchers and report himself for not being able to represent his client!
"I should have to call up the Law Society and report myself... "I am not in a position to understand the information ... I wouldn’t know what to object to. ... It's just not on!" (This was only one of the moments this morning when I was grateful to be sitting at the back and not obliged to keep a straight face)
Imperial Tobacco had dug deeper into its talent bank, and today introduced yet another Osler Partner from Toronto to the case. Mr. Allan Coleman, in the face of some gentle-but-pointed ragging from Justice Riordan over his unfamiliarity with Quebec court manners, clearly and politely presented his arguments that the companies should be able to review the data behind the response.
When he began his reply to these concerns, André Lespérance made the mistake of referring to past grievances about the conflicting experts not being allowed to meet face to face. Justice Riordan has no appetite for whingeing, and this provoked a sternly-toned reprimand from the bench: "The debate is not because of the absence of a discussion, but because you want to present something new. I warned you that you were opening the door to problems."
Mr. Lespérance got quickly back on track and explained that that his expert had done as he should have done by responding to the criticisms, by doing further work, and by making the details of this work available in advance. He pointed out that an expert witness was entitled to respond to criticisms. If the additional work was not appreciated, so be it. "We can live with his first report."
Justice Riordan came back to his starting point that next week "should follow the normal procedure."
Simon Potter tried to persuade him that it was hard to go back - "the toothpaste is out of the tube" - but seemed to realize that he was fighting a losing battle. "I will sit down before I make things worse," he said. And did.
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Before calling a pause to go and write out his decision, Justice Riordan reflected "I see this as something of a tempest in a teapot ... Science shouldn’t be as controversial as it seems to be here." Perhaps he has never met an epidemiologist.
His decision was foreshadowed in the faces of the legal teams as they waited for him to come back with a ruling. The plaintiffs were smiling, and chatted freely as they went down for coffee. The defendants gathered tightly for a hushed conversation.
His ruling was yet another example of his determination to keep this trial rolling and his desire to limit the "replies to replies" between experts.
Next week Mr. Siemiatycki will testify, as scheduled, on his 2009 report, as well as on his response to the criticisms of it. The plaintiffs may seek permission to file other material to support his opinion, but not the new report that was circulated. Within a defined timeframe, the defendants can ask for background information, call Mr. Siemiatycki back for a limited further cross-examination, and offer one response from an expert who has met with Mr. Siemiatycki.
Jack Siemiatycki's critics.
The companies have hired the following experts to provide responses to Mr. Siemiatycki's report.
Kenneth Mundt. His 27 page report offers wide-ranging criticism of Mr. Siemiatycki's analysis, without providing any estimates of its own.
Laurentius Marais. He derides what he calls "opinion-based estimates" in his 124 page detailed critique,
Dr. Sanford Barsky He includes in his rebuttal to Dr. Alain Desjardain's opinion some criticisms of Mr. Siemiaticki's findings.
Dr. Dale Rice. He who similarly includes criticisms of Mr. Siemiaticki's findings in his rebuttal to Dr. Louis Guertin's expert opinion.
Mr. Bertram Price. He provides a competing analytical framework and proposes a different method for linking smoking, wrongful behaviour by companies, and disease.
The rest of the day ...
.... was devoted to tabling documents that had been made receivable as a result of Justice Riordan's "2870" judgements (now before the Court of Appeal), and some that were being filed under the umbrella of his "May 2" judgement. There were scores - maybe a hundred - of these documents. More on them in future posts.
Tomorrow, two witnesses will be present. The cross examination of André Castonguay will continue (and likely end). Mr. Wayne Knox, a former marketer with Imperial Tobacco, will make his first appearance.
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.
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.
