Day 108: A very short day

When lung specialist Dr. Alain Desjardins returned today for his second day of testimony at the Montreal tobacco trials it was not clear how long the defendant tobacco companies would need to complete their cross examination of this first medical expert witness.

Everyone was there early, as starting time had been adjusted ahead by a half hour to accommodate all questions to this witness before lunch time (an unspecified scheduling conflict required the afternoon session to be cancelled). But as it turned out, the entire hearing took less than half an hour. The court adjourned this morning at 9:30, the time it usually starts.

Mr. Lehoux (for Rothmans, Benson and Hedges) took about 5 minutes to complete his cross-examination of Dr. Desjardins. He asked the witness to confirm that individualized pathology reports and assessments were required to diagnose lung cancer, and were also required to distinguish primary lung cancers from secondary cancers. He then asked the physician to confirm that throughout his professional life, physicians had been trained to counsel patients against tobacco use and that he had personally done so. (Dr. Desjardins volunteered that it was not enough to counsel against tobacco use, and that he also offered medical assistance to smokers to help their quitting efforts).

The lawyers representing BAT/Imperial Tobacco (Suzanne Coté) and JTI-Macdonald (Francois Grondin) had no questions at this point. The big hand had barely reached 12, and it looked like the day was over. There was sheepish laughter in the room, at the early start for a day that was so brief. (Or perhaps the sheepishness was because another science session had been cut short?)

But it was not quite over -- plaintiff lawyer, Michel Bélanger gave Dr. Desjardins the opportunity to rebut the suggestion made by Mr. Lehoux yesterday that the global approach to COPD management (Exhibit 30010) invalidated his explanation of the progressive severity and disabilities associated with COPD.

Justice Riordan wanted further claraification on the distinctions among COPD diseases, and asked whether those who had asthma would ever be considered to have COPD, since the VENN diagram presented yesterday showed they needed to have other conditions present before COPD was diagnosed. Dr. Desjardins did not give him the simple yes/no answer he was seeking, and there were follow up questions as the two sides tried to nuance the reply in their favour.

And then the day was over.

Powerful new evidence

Justice Riordan's decision last week to permit 30-plus documents from the Legacy archive as evidence in the trial has filled in some of the gaps where records were missing in the files of the Canadian companies, or where the events happened outside of Canada.

In making his ruling on the use of section of Quebec's Civil Code that allowed for such evidence (article 2870), he made clear that there were limits to the "probative value" of some of these documents. "While the production of a document under article 2870 can establish the truth of its contents, that does not apply to portions containing hearsay and opinion," he wrote.

His ruling also makes clear that in order to rule on the documents proposed (including the handful he rejected), he had to read and assess their content.- Maybe the companies would have been better off plugging their nose as these documents were proposed, instead of ensuring that he gave them a thorough review??

Some highlights from the new crop of 2870 document:

What it took to get Hans Selye to provide public support to the industry  

Document syiu88d00: 1966 memo regarding a visit of lawyers with Dr. Hans Selye in Montreal, sounding him out as a potential scientific ally.

Document sour87e00: March 10 1969 letter from Alexander Holtzman, Assistant General Counsel to Philip Morris Inc. in New York noting that Hans Selye had refused to testify on behalf of the industry at the Canadian parliamentary hearings because the industry had not, in the end, funded his work.

Document wnl28e00:  March 26 1969 letter from Leo Laporte, Vice President of Research and Development of ITL, to Dr. Hans Selye saying that his research will be funded

Document vox82a99: 1970 report on research underway by Hans Selye.

How the companies managed their opposition to the Isabelle Committee

Document riq40a99: 1969 memo from BAT's senior exec GC Hargrove describing how the industry coordinated its work to reduce the impact of the Isabelle committee (hearings by Canada's House of Commons Standing Committee on Health). There is a heavy presence of U.S. corporate friends - the work was coordianted by "Hill and Knowlton" executives and scientific witnesses were recruited by US lawyers.

Researching how to overcome smokers' health concerns

Document blq36b00: 1969 focus group research carried out by Analytical Research (Canada) Ltd on the reaction of smokers to concerns about health effects.

Document bvs56b00: 1977 memo by BAT's PL Short on "Smoking and health: the effect on marketing" - a strategy is laid out to blunt the health message and reassure smokers so they keep on smoking.

Document kca08a99: 1985 trip report by BAT psychologist RP Ferris regarding his input into the VIKING project

Early denial from U.S. companies

Document lby66b00: The 1953 Frank Statement.

Document pcw34f00: 1954 report produced by the Tobacco Industry Research Committee: "A scientific perspective on the cigarette controversy."

The industry's knowledge of nicotine

Document wfs76b00: A 1962 memo from Charles Ellis outlining research (hidden in Switzerland) on various aspects of nicotine and addiction -- worried about the effect on sales if the benefits of nicotine were obtained from other sources.

Document xjq70g99: A 1972 letter from ITL scientist Robert Wade acknowledging compensation. "When the nicotine content of a cigarette, is. reduced, smokers will alter their smoking patterns to try to obtain their normal nicotine intake, usually by taking more frequent puffs. In doing so they would obtain a tar yield proportionately higher than that which the cigarette was designed to give."

Impact of Free Nicotine

Document jbr73d00
A 1973 report on pH and nicotine impact written by Claude Teague.

Document sqr59d00: 1976 memo written by Claude Teague. "Our Industry is then based upon design, manufacture and sale of attractive dosage forms of nicotine..."

Document hfo34a99: 1982 BAT marketing conference report reviewing the Barclay compensatible cigarette.


Industry knowledge of risks and its research into health effects

1969 mouse-skin
test results

Document xro56b00: 1958 trip report written by BAT or Imperial Tobacco of England executives to the USA and Canada reflecting on the wide acceptance of causality within the industry

Document ltm36b00: 1959 memo from Alan Rodgman, head of "Fundamental Research and Development" at R.J. Reynolds Tobacco Company in North Carolina ("RJRUS").

Document fme50a99: 1962 reflection on the approach of the UK companies to concerns about health.

Document kyv35d00: 1964 research report prepared by Alan Rodgman reviewing several studies and concluding that "the combined evidence from the 29 studies is highly suggestive of significant association."

Document bnf56b00: 1964 memo from Alan Rodgman noting that nitrosamines are  highly carcinogenic and that they might be created in cigarette smoke.

Document iqn66b00: 1967 report on BAT research conference held in Montreal in which the company scientists press for a greater role in company policy, and in products designed to be less harmful.

Document yju40a99: 1968 report on BAT research conference held in Hilton Head, South Carolina in which the company scientists distinguished between "health image" cigarettes which make smokers feel better about smoking and "health oriented" cigarettes which are actually less harmful.

Document sqz74e00: A 1969 memo from H. Wakeham to C. Goldsmith in  showing results of mouse-skin painting tests (see picture).

Document wou74e00: 1969 document containing memos to and from H. Wakeham noting the harmful effects of smoking in pregnancy.

Document yma66b00: BAT research conference material from 1969 - scientists recommend that "the Industry had to recognise the possibility of distinct adverse health reactions to smoke aerosol : (a) Lung Cancer, (b) Emphysema and bronchitis."

Document aro66a99: Report on BAT research conference held in Québec in 1970 - provides the scientific consensus within the BAT companies as well as their mandate.

Document gev36b00: 1972 memo from Sidney Green, BAT's chief of research - pushing for the industry to change its position on smoking and health issues..

Document box36b00: 1976 memo received by Sidney Green. "The product in the 1980s".

Documents related to BAT's 1990 historic review of internal research into the harms of cigarette smoke (Report 2177, prepared by Graham Smith's Document vlx91a99;  Document aum36b00 – Exhibit 1242

On Wednesday and Thursday toxicologist Dr. André Castonguay will testify as an expert witness. Next Monday and Tuesday, Dr. Louis Guertin will testify about cancer of the larynx and upper respiratory tract.  

Day 107: The body count begins

Michel Bélanger

When the trial of the Quebec tobacco class action suits resumed this morning after last week's break, there was a switch in the line-up at the front of the room. There was also a switch of subject matter - for the first time the testimony is focused not on the action of the companies, but on the impact of their products on Quebec consumers.

Michel Bélanger is a veteran on the plaintiff's team who usually plays a coordinating role from the back of the room. Today he had moved to the front desk. Across from him was Jean-Francois Lehoux, who is a member of the team representing Rothmans, Benson and Hedges.

Dr. Alain Desjardins

Between the two men newly on the front bench and standing directly in front of Justice Riordan was Dr. Alain Desjardins, a 52-year old Montreal lung specialist who is the plaintiff's next expert witness.

Dr. Alain Desjardins

Dr. Desjardin's qualifications as an expert clinician in lung disease were not in much dispute. Perhaps his impressive CV, and his status as a "home-grown" expert made him a poor choice for the kind of theatrics that were displayed before Robert Proctor and Richard Pollay testified.

With no real objections to his qualifications, it took less than half an hour for Justice Riordan to accept Dr. Desjardins as an expert witness, his first such experience in court. There were a few clues to his newness to the task, and it took him the first part of the day to adjust his answers to the interest level of the lawyers (and judge).

The task of explaining science in this trial is not an easy one. There do not seem to be many science keeners among either legal teams, and Justice Riordan seems less engaged on scientific questions than on legal ones. The mood in the court during Dr. Desjardin's testimony had the feeling of a (well behaved) science class where everyone is watching the clock, waiting to be sprung.

Dr. Desjardins testified in French, and also wrote his expert opinion (Exhibit 1382) in the primary language of this province. This is so unusual at this trial that it is worth remarking on. There was an additional noteworthy 'change in language,' as today's proceedings were more than usually polite and even-toned. When impatience and irritation were expressed, it was in diplomatic tones.

Dr. Desjardin is the first witness to address the diseases caused by smoking in Quebec. The discussion today touched on several key questions that this trial may have to address -- at least if the lawsuit is successful at finding fault against the companies. How to measure harm? How to prove it?

Thousands of patients, few recoveries

Dr. Desjardins estimates that over his 23 years in practice he has had thousands and thousands of patients referred to him and gave over 130,000 consultations. Of the 25 new patients he sees each work day, he reports that 85% are smokers or former smokers who have, on average, a smoking history of "20 pack years". (He explained that a pack year is calculated at 20 cigarettes per day for a year, or 10 cigarettes per day for 2 years, etc).

In a tone of voice that sounded detached from the human toll of the information he was sharing, he described the pathology tests that confirmed lung cancer in about 10 per cent of his patients. Most of these cancers are not treatable, he said, and even those that are treatable rarely result in a patient living more than 5 years after diagnosis. He reported that lung cancer treatments are laden with debilitating side effects and serious complications.

A lung cancer patient is "virtually condemned to death," said Dr. Desjardins, and he held out little hope that the barriers to improving screening for lung cancer at earlier, more treatable stages, could be overcome.

Dr. Desjardins was asked by Mr. Bélanger to clarify the difference between 'primary' and 'metastatic' lung cancer -- the first being a cancer that starts in the lungs and the second being one which has spread to the lungs but which originated in another part of the body. His clinic only treated primary lung cancers, he explained.

Pre-emptive testsimony

The reason Mr. Bélanger wanted this on the record became clear, as passages from the tobacco company's expert witness, Dr. Sanford Barsky, were put to Dr. Desjardins for comment. (Dr. Sanford Barsky has appeared in U.S. trials on behalf of tobacco companies on multiple occasions.) These included comments about confusions over primary and metastatic cancers, references to other risk factors and diagnostic concerns

Dr. Barsky's opinion, prepared at the request of JTI-Macdonald, contains some unusual views for a medical scientist. Dr. Desjardins was asked to comment on Dr. Barsky's view that attributing cancer to smoking should be done with caution as "It is significant that a minority of all smokers develop lung cancer and not all persons with lung cancer are present or former smokers."

Dr. Desjardins was not impressed. "My reaction is that this reflects a considerable misunderstanding of epidemiology" he said.

Mr. Bélanger asked Dr. Desjardins for comments on parts of Dr. Barsky's report that suggest that other forms of lung cancer, like lymphoma, are not related to smoking. Dr. Desjardins agreed that such cancers did exist, but testified that he had only seen 3 of these types of cancers in his 23-year professional experience.

Jean-Yves Blais: the medical case behind the legal case 

Jean-Yves Blais

Jean-Yves Blais was a smoker who became ill with both lung cancer and COPD. As the 'face' behind the current lawsuit, his medical records were reviewed by both Dr. Desjardins and Dr. Barsky. Dr. Desjardins had also met with Mr. Blais, who died in the summer of 2012. (In his cross-examination, Mr. Lehoux made a point of the "weakness" of Mr. Blais' lung scan's having been destroyed, and only the reports being available for later opinions).

Mr. Blais was a man who had experience with many risk factors. He had worked in many industries with occupational health challenges - textiles, mining, heavy equipment, construction.

Nonetheless, Dr. Desjardins had no hesitation in attributing the probable cause of his lung cancer to smoking, and in defending this conclusion in the face of Mr. Lehoux's questions.

COPD vs. Emphyzema

As a lung specialist, Dr. Desjardins also treats Chronic Obstructive Pulmonary Disease (COPD) and the diseases included within that category. Like lung cancer, 85% of those suffering from COPD do so as a result of tobacco use, he testified. COPD is not reversible, he said, although treatment (and quitting smoking) can slow its progress.

Chronic Bronchitis, Emphysema, Asthma
and COPD

The inclusion of COPD in this case became an open question during the day. When the Blais lawsuit was filed in 1998, and when it was certified by Justice Jasmin in 2005, the focus was on  emphyzema, and not COPD.

Now the question is (or at least the questions put to Dr. Desjardins by Michel Bélanger and during Jean-Francois Lehoux's cross examination)  whether those suffering from non-emphyzema COPD should or should not be included in the class.


My impression was that this distinction will be the subject of future discussions (and rulings).

Should there not be an admission?


Mr. Bélanger's last question to his witness  concerned the discrepancy between Imperial Tobacco's position in this case and its own scientific briefings. He showed the witness a 1976 BAT study that had been among the documents slated for destruction when the company purged its files of inconvenient scientific reports. In this report (Exhibit 58-59), the BAT scientists note that "patients with emphysema who have never smoked are rare," and explore the likely reasons behind this fact. Yet in the request for admissions, also shown to the witness (but not available electronically), the company contradicts its own scientists.

The cross-examination 

Jean-Francois
Lehoux

Mr. Bélanger finished his questions in the early afternoon, and the opportunity moved to Mr. Lehoux to begin the cross-examination. It was the first occasion that Mr. Lehoux has done so, and his style is remarkably different from that of his bench-mate, Simon Potter.

Mr. Lehoux worked methodically through a thick stack of questions (one to a sheet of paper) that were stacked on the document case he had placed on his desk. He asked repeatedly (and in many ways) about the diagnosis of cancers and emphyzema, the importance of tests and the need for individual assessments.

Not surprisingly, this clinician agreed with his suggestions that clinical diagnosis required individual case histories and tests. (It was suggested to me by my colleague, Pierre Croteau,  that Dr. Desjardins was being set up to agree with the defendant companies views that exhaustive medical examinations would be required for all case members.)

By the end of the day, Mr. Lehoux had not yet worked through his stack of papers. Tomorrow, Mr. Grondin and Ms. Coté will follow him with their questions.

Justice Riordan opens the door to new documents

During the break week, Justice Riordan released his ruling on the "2870" documents that had been argued a few weeks earlier. These were, with one exception, documents that had been pulled from the Legacy web-site of tobacco industry records.

Justice Riordan agreed to accept more than 80% of those documents as evidence in this trial (he accepted 30 and rejected 6). His ruling suggests that some of those that were rejected can eventually find their way onto the trial record, either because a witness will later be able to vouch for them, or because a different version is on file.

They are important documents. Some specific examples will be here tomorrow!

Tuesday, the cross examination of Dr. Desjardins will continue in the morning. The trial may not sit in the afternoon. On Wednesday and Thursday, the pharmacologist, Alain Castonguay, will testify.