Day 120: Slowing things down ...

There was some gear-shifting today at the Montreal tobacco trial, as things moved to an even slower pace.

Today's cross examination by Imperial Tobacco counsel, Nancy Roberts, of her clients' former microbiologist was what my Indian friends would call a "time pass" and what we might call a time filler.

Quantity over quality

A few weeks ago, Suzanne Côté had introduced moves from a new play-book during her cross-examination of André Castonguay. It required multiple documents, a focus on small points, and many repetitive questions.

Today, Nancy Roberts followed this example during her cross examination of Minoo Bilimoria, albeit with her own slower style. (This is the first time Ms. Roberts has cross-examined a witness at this trial -- a year into the case and there are fresh rotations.!

Despite assurances yesterday that "I'll probably need about an hour and a half," the hours dragged by while she slowly put on the court record what seemed to be the entire publication record of Mr. Bilimoria. We should be thankful, I suppose, that the witness had not been more productive during his 25-year career at the company, or we might still be in court having her ask the same questions of each document.

Was this another effort to develop a short term test for biological activity? 
Was it conducted as part of your work at Imperial Tobacco?
Did any one at Imperial Tobacco attempt to modify this report?
Did anyone at Imperial Tobacco attempt to prevent you from publishing this research?

These publications will soon be on the plaintiff's database as Exhibits 20024.1, 20024.2, etc. If ever you wanted to know anything about the "Responses of rodent hepatic, renal and pulmonary aryl hydrocarbon hydroxylase following exposure to cigarette smoke" or "Protective antioxidant mechanisms in rat and guinea pig tissues challenged by acute exposure to cigarette smoke," you know where to go.

In contrast to the questions, Mr. Bilimoria's responses were brief. He occasionally elaborated on how his research fit into the company's search for a quick way to measure whether changes to cigarette design would affect the health impact of cigarette smoke. He continued to sidestep questions about company policy, maintaining that he did not work such a level. He helpfully confirmed her suggestions that Imperial Tobacco management had not interfered with his publication efforts. Mostly he said "yes" or "no".

How public is public?

One of the themes of Ms. Robert's questions was the openness of Imperial Tobacco to having its science published and made available. Perhaps she confuses scientific publication with public knowledge, or hopes Justice Riordan will.

In meetings where Mr. Bilimoria had presented a paper, she made efforts to have him testify that the meeting had been open to the public (she did not ask how much the conference fees were). Nor did she ask Mr. Bilimoria about the Canadian circulation of Beiträge zur Tabakforschung International or other journals where his findings were published.

How responsible is government?

As other Imperial Tobacco lawyers have done, Ms. Roberts emphasized the relationship between Imperial Tobacco scientists and Agriculture Canada officials. She tabled a report prepared by that department on the mutagenicity of experimental cigarettes, and again drew attention to the participation of Agriculture Canada officials at meetings held by and for tobacco chemists (Exhibit 20024.3). Mr. Bilimoria testified that he had shared the methods for a new toxicity measure (the NMFI or nitromethane fraction index) with the federal government. I think this is the first time that the NMFI has been referred to in this trial.

The rebuttal

For the second time in recent weeks, Imperial Tobacco has opened the document flood-gates during a cross-examination. For the second time, the plaintiffs ignored most of the material, and used their opportunity to ask more questions on the "re-direct" to clarify a few points.

Mr. Trudel invited Mr. Bilimoria's to confirm his discovery that BAT had made an arithmetic error, and that Players Light cigarettes came out with higher levels of mutegenicity than competitors' brands. A small point, but an entertaining one in the context of the day.

He asked Mr. Bilimoria again to explain why he hid his employment status at Imperial Tobacco when he published as a McGill researcher. It took several questions to get the answer - "I didn't see the relevance of it."

He pressed Mr. Bilimoria on his testimony about being free to publish what he wanted  "Yesterday, you said that there was no restriction on what you can publish with respect to the work you were doing internally at Imperial Tobacco."
"Yes."

But when shown examples of "restricted" publications, Mr. Bilimoria conceded that he would not publish commercially sensitive research, such as that involving research on "reducing activity." I suppose if you know enough to not ask, then you can indeed consider that you were never refused.

Among Mr. Trudel's last questions were ones which went to the core credibility of Mr. Bilimoria's testimony -- the fact that his work was not scientifically credible, even in the eyes of his Scientific superiors.

The witness was shown a report by BAT senior scientist, Alan Heard, after his visit to the Montreal labs: "the work on biological activity currently confined to Ames test is without foundation (other than as a simple screen). Thus emphasis must await identification of a meaningful battery of bioassays (currently being developed) before any useful purpose can be served by the project.”

(Dr. Heard was more charitable than his counterpoint at RJ Reynolds, Mr. Colby, who considered Mr. Bilimoria to be an "unimaginative and very mediocre researcher.")
In that sense, Mr. Bilimoria's entire career at Imperial Tobacco might be viewed as a "time pass."

The man whose career was focused on measuring the harmfulness of cigarette smoke ended his testimony today by stepping back from any conclusion about smoking causing cancer. Somewhat exasperated, Philippe Trudel pushed him: "From today, as we stand, you do not agree that it is proven that cigarettes cause cancer?"  

"Directly, no." were Mr. Bilimoria's last words before being thanked by Justice Riordan and invited to go home.

A courtroom filibuster?

With 10 sitting days  before the plaintiffs are expected to wrap up their case, the trial schedule is getting more and more cramped. In addition to 9 witnesses, there are several issues that require court-time, and a few hundred more documents to be processed through the system.

There is no time to lose -- but Justice Riordan may have inadvertently given the defendants an additional incentive to deliberately lose time in March and thus force the plaintiffs' case into the month of April.

For many weeks, the judge has been trying to fend off having to hear and rule on the companies' position that they should not have to present a defense in these suits, saying that the case against them - in whole or parts - has not been made. (The exact nature of the demand will not be known until they file it two weeks after the defense closes its case).

Last week Justice Riordan tried to stop the proceedings from being put on ice between the end of the plaintiffs' proof (end March) and the arguments on the "non-lieu" motions, which the industry lawyers say cannot be fit into their schedule until the end of April. He accepted the companies offer to consult last week and come up with a "some other use that we can make" of the three weeks now sitting empty on April's calendar.

From where I sit, it looks like their preference is to avoid advancing any of their witnesses in that period and to instead force force an over-time period on the plaintiff's proof. If they rag the puck -- as they seemed to do today -- they can maybe make that happen.

(Justice Riordan today described the long and energetic opposition by Imperial Tobacco to confidentiality requirements  for Jeffrey Wigand's financial records as a "mountain out of a molehill" and "blown out of proportion". There's plenty more molehills to come!).

On tomorrow's menu:  Former head of marketing at Imperial Tobacco, Tony Kalhok, will return to testify in the afternoon. Other business will include the "Wells-Pritchard" memo, and the introduction of documents used in the cross-examination of André Castonguay.

Day 119: March-ing on

For almost a year, the Montreal trial of the Quebec tobacco class action suits has followed a loose pattern of  three sitting weeks followed by a one-week break from court. The rhythm set by this pattern often makes the first day back from a break - like today - feel a little like back-to-school.

But this time it is an end-of-term feeling that seems to predominate. The plaintiffs are scheduled to finish their proof before there is another break. There is a lot to be done.

For this first sitting day in March, the business at hand was the testimony of Imperial Tobacco's retired microbiologist, Minoo H. Bilimoria, Ph.D. I have forgotten, if I ever knew, the reason he did not testify last summer at the same time as the other Imperial Tobacco scientists.

Frail elderly or sly like a fox?

Mr. Bilimoria, at 82 years of age, is the oldest witness to appear in the Montreal court during this trial. (The evidence of Mr. Peter Gage, who is a decade older, was given through video-conference).

It was not only his thinning grey hair and fallen face that today gave him the air of being among the "frail elderly." His casual clothes (he is the first male witness to dress in neither tie or jacket) and his look of stressed confusion made me think a caregiver might be close at hand.

But looks can be deceiving. There was nothing frail in Mr. Bilimoria's ability to stand throughout the long day, even though he had been invited to sit should he wish to do so. Nor was there any sign of mental frailty as he followed the questions put to him without any apparent difficulty in hearing them or working through sometimes challenging syntax and pronunciation.

When Mr. Bilimoria gave an answer that seemed to have nothing to do with the question - as was often the case -  it felt like this reflected his ability to deliberately sidestep an issue rather than any inability to understand it.

Sidestep he did. Frequently and with a nimbleness and flat delivery that made some answers sound suspiciously rehearsed. "I do not have the expertise,"  "It is not my area." "You are asking the wrong person." "I have no information on that." "I was just a scientist who did the work. I had no management decisions.” 

Philippe Trudel was the plaintiffs lawyer whose unhappy job it was to question this witness, and it was clearly a frustrating exercise.

With a younger witness, he might have been tempted to be more forceful in following up on the many contradictions in Mr. Bilimoria's testimony. He did try once or twice to pounce on a suspicious answer, but it didn't go very far. Before long, the lawyer seemed resigned to just letting the contradictions between Mr. Bilimoria's verbal testimony and his written work speak for itself.

Mr. Bilimoria's double life.

Mr. Bilimoria joined Imperial Tobacco in 1969 and was on the company's payroll for the next quarater-century. But for the bulk of that time (from 1975 to 1991) he was not located at the Imperial Tobacco laboratories in St. Henry, but at the pathology department of  McGill University. That is where he "assisted" researchers who had received grants from the Canadian Tobacco Manufacturers Council, James Hogg and Donald Ecobichon.

Observers and colleagues might be forgiven for not having understood that Mr. Bilimoria's work at the university was not independent scientific research, but was part of an industry strategy.

The industry connection was never made transparent. Mr. Bilimoria published his scientific findings as though he were an ordinary visiting scientist at McGill University, and not as a tobacco-industry employee.

When asked by Mr. Trudel today why this had happened, Mr. Bilimoria disavowed any role in the decision.

"When you published at McGill, did you mention that you were employed by Imperial?"
"The publication was written by the professor - if he felt like writing McGill, he wrote McGill, if he felt like writing Imperial Tobacco, he wrote Imperial Tobacco – for me it made no difference."
"You didn’t find it important that you were working for Imperial Tobacco?"
"I didn’t even think about it."

Even when Mr. Bilimoria was the principal author (examples 1, 2, 3) he did not reveal his industry affiliation.

(Those saddened by the apparent ability of the asbestos industry to generate friendly research at McGill University through J. Corbett Mcdonald  might also want to take note of the sad history of Donald Ecobichon's service to the tobacco company - still a cause for boasting by McGill's public relations staff.)

The Ames test  

Throughout his career at Imperial Tobacco, Mr. Bilimoria's job was to "look at the effect of tobacco on cells and cell systems." He explained that this meant looking for the cancer-causing, tumor-causing or mutation-causing effects of cigarette smoke on cells from microbes or small mammals (not humans).

The Ames test was developed around the time Mr. Bilimoria attached himself to McGill University, and it would become the mainstay of his research in the following decades. Many other scientists - including colleagues in the tobacco industry -- were doubtful about the value of the Ames test to compare types of tobacco. Philip Morris's chief scientist, in a frankly-worded memo to his Canadian colleague,  said the research was worthless.

Mr. Bilimoria still has a rosy view of these tests. Mouse skin painting, he explained today "is a very complicated test, very expensive test, very long duration test" for which Imperial Tobacco did not have facilities. Besides, he said "why would I do a two-year test if I could do a two-day test?"

One of the last documents presented to Mr. Bilimoria today was a summary of research found at BAT's document depository in Guildford, England by the federal-government lawyer who was once a familiar presence in this courtroom, Mr. Maurice Regnier. (Exhibit 1436)

Whatever he might have said earlier in the day, Mr. Bilimoria acknowledged that he had written the content of this report, which documents that Imperial Tobacco measured whether:
* certain additives would make smoke more - or less - mutagenic. (Adding diammonium phosphate increased the mutagenicity of tobacco sheet, but tropical fruit flavourings didn't seem to make too much difference)
* sidestream smoke was more or less mutagenic than mainstream smoke
* its brands were less or more mutagenic than other company's brands.
* changing the circumference or butt length of cigarettes affected the ability of the smoke to harm cells.

Comparing the mutagenic properties of Canadian commercial cigarettes
Exhibit 58-27

Science lost, found or never done. 

Mr. Bilimoria professed no knowledge that his scientific reports had been destroyed by Imperial Tobacco, or even that there had been a policy decision in the late 1980s to remove documents from the company's files. He told Mr. Trudel that reports from British American Tobacco were made available when they were relevant.

One of the documents referred today might have been expected to be among Imperial's files, but was not. It is a report of a meeting that Mr. Bilimoria attended in Southampton in 1981, during which the scientists concluded that mouse-skin tests were recommended, but were not "cost effective."  (Exhibit 1433 - restricted, but available on Legacy).

The group wanted more tests to be done, including tests for some of the diseases that are the subject of this trial. "Efforts will be made to develop short-term tests related to atheroclerosis, bronchitis and emphysema," the meeting notes reported.

"Do you know if tobacco products manufactured by Imperial Tobacco were ever tested for these diseases?" asked Philippe Trudel.

"I don’t know," replied Mr. Bilimoria.

"Were these tests ever developed?"

"No."

"Do you know why they were never developed?"

"No." 

 

Shortly before 4:00 p.m., Mr. Trudel asked his last question of the witness. He wanted to know whether Mr. Bilimoria had brought with him any contracts with Imperial Tobacco, as he had been asked to do. The witness said that there had never been any contract, either before or after his retirement, and that no such papers had survived his move from a house to an apartment. He said there had been no confidentiality or similar agreements with the company.  

Mr. Trudel thanked the witness and said he had no further questions. The cross-examination, expected to take only a couple of hours, is planned for tomorrow morning.

The road ahead - more pitstops?!

With only three weeks left to tie up all the loose ends in the plaintiffs' proof, Justice Riordan seemed impatient to get an inventory of the apparently growing number of issues that need to be managed in the coming weeks.

To an already-crowded agenda, some new elements were talked about today. It was reported that the plaintiffs have sent subpoenas to eight or more witnesses who have already testified, including Jean-Louis Mercier, Anthony Kalhok, Guy-Paul Massicotte and others. The sole reason for this, explained André Lespérance, was to have the evidentiary status of certain documents improved. (Exhibits that result from the "May 2nd ruling" have a lower standing than exhibits where the author or recipient has testified.) The tobacco companies are not willing to offer any agreement for another process, so these authors and recipients will return.

During her explanation why Imperial Tobacco wanted to use court time in this way, Imperial Tobacco's lawyer, Deborah Glendinning, also hinted that it might suit the defence teams to have the plaintiffs' proof drag on longer than it would if the companies agreed to facilitate some processes.

 "I don’t think we are going to be finished by the first week of April," she said. She did indicate that the companies would follow through with their commitment to provide some suggestions on how to  ensure there is no down time in April as a result of their pre-defence motions.

As Justice Riordan packed up his computer and prepared to adjourn the court, he remarked wryly that he hoped he would "be able to get to sleep with all the anticipation for tomorrow." 

Tomorrow, Minoo Bilimoria is expected to finish his testimony. There will be discussions on the trial agenda, the return of Jeffrey Wigand and other witnesses and - if there is time - discussion of more documents for which use of the article "2870" rule is being sought.