Day 84: Colonel Mustard in the Parlour with the Maryland Extract

Some people can read detective mystery novels without skipping to the end to find out "who dunnit" before enjoying the unveiling of the plot line.

Not being one of that tribe, I have been impatient  over the past few months with the many clues dropped by Philippe Trudel and his colleagues about the addition of flavourants or nicotine to Canadian cigarettes. Why would they ask virtually every witness at the Montreal tobacco trials to validate the common understanding that Canadian cigarettes, unlike their US counterparts, were 'additive-free'? Why give them all the opportunity to boast that while there may have been experiments with nicotine-fortified cigarettes, such products were never put on the marketplace?

These questions were leading somewhere, but as far as I knew, it was a dead end. The prevailing view has been that the nicotine levels in Canadian cigarettes were controlled through the selection of tobaccos and by the way the cigarette was designed to burn.

The mystery began to be revealed on Thursday when Mr. Pierre LeBlond was invited back to finish a testimony begun at the end of August. He is a chemical engineer who worked at Imperial Tobacco for almost 30 years and was once custodian of the company's top secret code book of flavours.

True to the mystery genre, the plot was revealed in a conversation that took place before the entire cast of characters - or at least those that remained after the federal government was airlifted out of the trial by the Court of Appeal the day before.

It may not have looked like an Agatha Christie drawing room, but it sure felt like one.

The case of the nicotine extract

Philippe Trudel began by exposing flaws in Mr. Leblond's previous testimony. In August, he had denied that he knew why phosphates or citrates were used in cigarette papers and did not know what pH of smoke was - an amazing gap in knowledge for someone with a 30 year career in cigarette design. Asked similar questions again Thursday, he suddenly did know the answer to these questions. Well, well, well. Nicely softened up.

Mr. Trudel then began a line of questions that has been asked of no other witness. He wanted to know about the physical layout of the Montreal factory where both fine-cut and tailor made cigarettes were manufactured.

How was the waste product collected in the Montreal factory? (It was sucked out through pneumatic piping throughout the factories)

What happened to the waste product? (It was sent off to be manufactured into reconstituted tobacco).

How much of this reconstituted tobacco made from waste tobacco was used in cigarettes? (oops! Mr. Leblond "stood corrected." His previous statement that it was only 3-5% was contradicted by evidence that it was twice as high). 

Mr. Trudel then began introducing documents whose secrets will likely never be fully revealed to the public, except through the admissions of Mr. Leblond. These are the "secret recipes" of Imperial Tobacco cigarettes that are on the court record, but protected behind confidential and redacted status. 

What was this LAC tobacco used in Players Special Blend? (Maryland tobacco)

Was Maryland tobacco treated with casing? (Mr. Leblond didn't think so, until shown a 1994 document - Exhibit 995CONF - that "refreshed his memory" that it had been. Oops! another 'memory lapse' exposed).

What was this "Maryland Extract" that was added to Players Special Blend? (An additive with a secret formula.)

And what about the measurement that Mr. Leblond made in 1994 (Exhibit 998) "to find out how much nicotine is added to Player's Special Blend?"  when Maryland Extract was added to the recipe. Well that looked pretty conclusive that Maryland Extract was used to increase the nicotine content of that brand of cigarettes.

With the evidence of Mr. Leblond's assessment of the addition of nicotine in his hand, Mr. Trudel asked the witness to confirm that "The nicotine content was increased by approximately 1.5% -  right?"
"I would answer yes."

And as for the amount of additional nicotine that was left on tobacco when nicotine-denatured alcohol had evaporated away? (Mr. Leblond had once calculated that 3.3% was left on the tobacco in the form of nicotine salts.)

Players Special Blend -
fortified with nicotine extract,
but not with pure nicotine

And yet ...Imperial Tobacco had issued a press release (Exhibit 40017) only a few weeks after the calculation that "Imperial Tobacco does not add nicotine to any of its products to enhance their nicotine levels. The nicotine content of cigarettes and fine cut tobacco products is exclusively determined by the blends
of tobacco in the product."

Pierre Leblond explained that this seeming contradiction was  explained by the distinction between 'natural' and  'chemical' nicotine.
"So your proposition is when you add nicotine extract you don't add nicotine?" 
"Yes."  Well, what was he going to say -- 'It's a fair cop?'

And as for the tobacco waste that is sucked up and turnedinto processed leaf (PCL) that eventually makes up to 10% of all cigarettes, it would seem that all the waste is mixed together, including that from the parts of the plant that use additives and casings. No separate categories for additive-free PCL.

The mystery solved through a smouldering Maryland Extract, a spent denatured alcohol and a PCL footprint, the court adjourned for lunch.

Not a smoking gun?! Not a spent bullet!? .... 

I was not eye-witness to the afternoon session, but the record shows a plot twist, as Deborah Glendinning, who represents Imperial Tobacco in this case, used her cross examination to ask Mr. Leblond to agree that the calculations he made in 1994 (Exhibit 998) contained errors. The first was that Maryland Extract - a liquid - was "simply more tobacco, in a different form, that's being added as a flavourant." The second was that there was a decimal-point error in the 1.45% calculation, and that the figure should was actually one hundred times smaller.

Justice Riordan appears to have not agreed with her math, but he gave the witness an opportunity to say that the value was the "total amount" of nicotine in the cigarette, not the amount added. "So it looks like there are two mistakes in that document," concluded Mr. Leblond.

Watch for more plot twists in this continuing saga....

Gone but not forgotten

The Court of Appeal ruling that the federal government is not a co-defendant in the case has not apparently stopped the tobacco companies from bringing the government back into the case. In her cross-examination during the brief appearance of Rita Ayoung, Ms. Suzanne Coté asked the former librarian to confirm a number of BAT restricted reports that had been provided to Agriculture Canada and to scientists working with the federal government on tobacco agronomy. 

On Monday, the trial will hear from Mr. John Barnett, who is the current president of Rothmans, Benson and Hedges. He is the last of the three company executives to testify. Later in the week, the trial is also expected to hear from Mr. David Sweanor, formerly with the Non Smokers' Rights Association.

Day 56: The librarian

See note on accessing documents at the end of this post. 

The Montreal trial of the class action suits against Canada's three large tobacco companies resumed today (September 17th) after a week's scheduled pause. The plaintiffs' lists of witnesses from Imperial Tobacco has been almost completely checked off, and starting tomorrow the trial moves to hear witnesses from JTI-Macdonald.

The last witness scheduled from ITL was the former science librarian, Ms. Rita Ayoung. Her testimony was expected to tie up a few loose ends that had been left hanging after the short appearance at the trial of Ms. Ayoung's former boss, Ms. Carol Bizarro.

One particular fact that needed to be nailed down was the identity of the person whose initials "RA" appeared frequently in the inventory lists of scientific documents that had been removed from Imperial Tobacco's library or had been destroyed. Early in the afternoon, Ms. Ayoung confirmed that the person in question was Roger Ackman, ITL's the corporate counsel and the man at the centre of the document-retention saga. The other theory that had been offered in the trial, that the initials were those of Rita Ayoung, was put to rest.

Ms. Ayoung was much more reluctant to offer other insights or knowledge about why Mr. Ackman was interested in scientific documents, why certain documents were sent to him, or what the documents might have been about.

She resisted the idea that the Library had been involved in the destruction of documents. We didn't destroy documents she said even though terms like "all destroyed" appeared on the lists. The library staff bundled them up and called the Mail Room to take them away -- where the documents marked "sent" in her records went, she did not know.

According to Ms. Ayoung's testimony, the document retention policy was a literal and welcome housekeeping measure. She took every opportunity to stress how the library was bursting at the seams.

André Lespérance. The Janus Annual Reports - what were they?
[The Janus studies were early BAT research on carcinogenicity.]

Rita Ayoung. I think they were before my time. All I remember is that they were on the bottom shelf and we needed the space. Annual reports are useless after 10 years - the retention policy allowed us to make space.

André Lespérance:  When was the policy implemented?

Rita Ayoung: I can't remember. We were happy like hell when it came!  We were ecstatic!

For more than two hours, André Lespérance took the court through the lists of documents removed from the library ( 319 A B C D E F G H I J K), matching up records in one document against references in another. It was a painstaking exercise, and must have been even more so in preparation.

My colleague, Pierre, compared it to an archeological dig, with the careful arranging of fragments to form a skeletal version of events. Ms. Ayoung confirmed that the fragments aligned the way that Mr. Lespérance suggested, but volunteered little additional information. She would put no flesh on those bones.

Before the destruction policy, 75% of
research reports borrowed from ITL's
Library were over 5 years old. 

Despite Ms. Ayoung's statements that the "old" documents that were removed were not much valued, Mr. Lespérance introduced two calculations she had made that showed that these older research works were very much in demand (Exhibit 556), and that they made up the bulk of the library's collection (Exhibit 556A).

At the end of the day, in a characteristically pointed clean-up round of questions, Bruce Johnston offered more contrasts between her memory today of events and the documentary records of her work at the company. These included Dr. Patrick Dunn's dissatisfaction in 1994 of the process to get documents faxed from BAT's library (Exhibit 102) and Rita Ayoung's own involvement in that process (Exhibit 559).

At 4:30, the normal time of adjournment for today's session had arrived, but Bruce Johnston had not yet finished his questions. Justice Riordan thanked Ms. Ayoung and expressed his regret that she would be asked to return later in the trial.

RULINGS
Ouch!  Tobacco companies get a one-two punch in rulings from Justice Riordan and the Court of Appeal.

Decided: CTMC records can be reviewed by plaintiffs...

On September 4th, the tobacco companies tried to prevent the plaintiffs from receiving archival records of the CTMC by pleading their motion to quash a subpoena. During last week's break, Justice Riordan issued a ruling that rejected each of their arguments, and gave told the companies to begin quickly the work of making this material available to the plaintiffs.

In his 8 page ruling (available in French only), Justice Riordan agrees with the industry position that the plaintiffs slipped in not picking up the meaning behind JTI-Macdonald's one-time reference to documents "in the possession of third parties such as the CTMC. However, he did not agree with their view that the plaintiffs had missed the boat. It is not in the interests of justice, he ruled, for this mistake to be left uncorrected.

"41. Lets be real. We are dealing with files where the financial stakes are more than $20 billion. It is essential that the Court receives all relevant and available proof, both for and against the case. The Court cannot allow a procedural oversight by lawyers to become a roadblock to the receipt of all the information needed to render justice." (unofficial translation).

Decided: the industry can't get its hands on detailed survey data from Statistics Canada 

The other recent ruling comes from the Court of Appeal.

It refers to a decision last year (June 7, 2011) of Justice Riordan which had given the tobacco companies some satisfaction in their desire for Statistics Canada microdata from two longitudinal health surveys. The government had refused the information during the normal exchange of material, citing concerns for confidentiality of survey respondents. Despite these privacy issues, Justice Riordan obliged the federal government to make some of the data available.

In this appeal, heard last January, the industry wanted the Appeal Court to overturn the parts of the decision that did not give them full access to the data. The federal government, in its cross appeal, wanted the Appeal Court to overturn the parts of the decision that required them to provide information.

The government won. In the ruling issued today, Court of Appeal Justices Francois Pelletier, Allan Hilton and Richard Wagner decided unanimously to strike down the June 2011 decision. In short, the industry walks out of the appeal process with less than they went in with. The federal government gets what it asked for all along- the right to maintaining control over Statistics Canada survey data.

This is a rare instance where the Appeal Court has not upheld Justice Riordan's views. At one point this afternoon, Justice Riordan interjected during some confusion over arithmetic and stated a simple arithmatic calculation. "Maybe the Court of Appeal will be kind to me on that one," he said with a smile.

Tomorrow the trial will hear from a second industry CEO, Mr. Michel Poirier, who is head of JTI-Macdonald.

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