Day 173: How can you keep the boy on the farm?

It is said that the best defence is a good offence - and so Imperial Tobacco seems to have thought when they selected Gaetan Duplessis as their third fact witness.

This recently retired agronomist-turned-scientific-director was brought to the Montreal Tobacco Trials last month to testify about the deliberateness with which Agriculture Canada worked to increase the nicotine level of  Canadian-grown tobacco. (It was a disturbing story!)

This story told, the lawyer who prepared Mr. Duplessis' testimony for Imperial Tobacco, Suzanne Côté, could be forgiven for patting herself on the back. Here was a witness who was offering a new story, and doing so in a likeable way.

Perhaps it was because things were going so well that Mr. Duplessis was kept longer answering Imperial Tobacco's questions than originally anticipated. By the time Ms. Côté had finished there was no room left in the day, and the cross examination was postponed until after a two-week break.

André Lespérance and Philippe Trudel appear to have put these weeks to good use. When Mr. Duplessis was recalled this morning, these plaintiff lawyers had found a new role for Mr. Duplessis to play in this trial.

Forget about Agriculture Canada! Here was a witness who could give Justice Riordan additional reasons to believe that Imperial Tobacco trained its staff to deny the harmfulness of smoking, directed them to suppress knowledge that cigarettes delivered more nicotine than claimed on the packages, and put their scientists under the authority of BAT headquarters.

A blocked memory

Was VP Research
Patrick Dunn
trying to perpetuate
a scientific controversy?

Thirty years ago, Mr. Duplessis was among a small group of company scientists who were asked to listen and critique a presentation prepared by their boss, Patrick Dunn. The outline of that long-ago presentation on "The functional and social significance of smoking," (Exhibit 1434.1) and the comments of those who critiqued the dry-run (Exhibit 1434) were the basis of Mr. Lespérance's first questions.

Mr. Duplessis' recall of the details of the speech was hazy today: he could not remember where Mr. Dunn was going to make the presentation, or why it was being prepared. He did, however, have a clear memory that "it was a horrible presentation" with "hundreds of slides."   (It was later revealed that the speech had been given to a meeting of IMASCO executives - Exhibit 1114)

Even without Mr. Duplessis' recall, the content of the draft speech can be inferred from the outline and the comments of the in-house reviewers. It appears to have covered a wide range of "medical," "pharmacological" and "psychological" issues related to smoking, including the tensions between the "benefits of smoking" and the "antagonistic views" faced by smokers. 

The reviewers' comments which cautioned about implying "a real link between diseases and smoking," or referring to tobacco as a "scapegoat" might have suggested that the speech was part of some corporate dissembling about causality. If so, Mr. Duplessis seemed reluctant to say so.

Only after being pushed repeatedly by an uncharacteristically severe André Lespérance did he acknowledge that the company maintained a position of "scientific controversy" about causation in the early 1980s. But even souvenirs of more recent presentations he attended (Exhibit 1600) failed to clarify his memory of whether the company continued to maintain this view until he retired in 2010.

Blocked ventilation holes

Last month an in-house expert witness, Mike Dixon, had testified on behalf of Imperial Tobacco that the tendency of smokers to block the ventilation holes with their lips did not increase the amount of tar, nicotine or carbon monoxide they inhaled. (Exhibit 20256.1)

Mr. Duplessis seemed to disagree with Mr. Dixon. He acknowledged today that lip blocking "is a risk". "It is a reality that if the holes are too close then there will be blockage. If they block the holes then the measured delivery will be inaccurate."

He was not the only one at Imperial Tobacco to have seen hole blocking as a way of smokers receiving more nicotine and tar than expected.  In 1984, CEO Jean-Louis Mercier, had raised the issue with the CMTC, noting that that a competitor had put the ventilation holes very close to the filter. If "at least some of these holes" were covered then "higher deliveries of tar and nicotine than would be anticipated from the package" warned Mr. Mercier. (Exhibit 285)

These concerns were validated the following year in a research project undertaken by Mr. Duplessis' colleague, Cathy McBride. She studied cigarette butts that had been collected from shopping malls and found that almost half of smokers had covered the vent holes with their lips. Her boss reported her finding that "ventilation zone blockage is more prevalent for ultralow products than for low or mid products." (Exhibit 1603),

Although Mr. Duplessis today offered concerns about the study's methods, it had been considered good enough at the time to be nominated for submission to the industry's annual science meeting. Before sending the paper in, however, Imperial Tobacco invited their more senior BAT colleagues to state any objections. (Exhibit 1603.1).

Life before e-mail! Alan Heard sent his response in the form of a Telex. The capitalization emphasizes the imperative:

 "THE [McBride] PAPER ON DEPTH OF INSERTION FOR VARIOUS CIGARETTES SEEMS TO CONFIRM THE KOZLOWSKI TYPE IDEAS FOR LOW DELIVERY PRODUCTS AND COULD BE PROBLEMATIC. I THINK IT IS UNWISE TO PUBLISH ANY FINDINGS OF OUR STUDIES ON SMOKING BEHAVIOUR ON ANY SMOKING PRODUCTS."

Low and behold - when the Conference took place later that year the McBride paper on lip blocking was nowhere to be found. (Exhibit 20205). (As he drew the witness' attention to the apparent censure of this study, Mr. Trudel remarked on the irony that  this catalogue of presentations had been introduced by Imperial Tobacco and  "used to show that people were free to publish.")

Testing blocked levels

A decade later, Health Canada was moving towards changing the machine test methods so that ventilation holes were covered before the cigarettes were artificially smoked.

Imperial planned its response to new cigarette test methods
Exhibit 1601

One of Mr. Duplessis' tasks was to plan ways to respond to these changes (Project Lightning - Exhibit 1601).

The studies prepared for Health Canada showed that blocking the vents (Max 2) greatly reduced the differences between regular and low or ultra low cigarettes. (Exhibit 1601)  But BAT's own estimates of the difference was even greater. (Exhibit 1602)

Blocking minutes of meetings

Last year, another former BAT-group scientist, Jeffrey Wigand, had testified that in the early 1990s BAT adopted the "mental copy rule."  "Don't write it; you say it and then there's no document left behind."

Today, Mr. Duplessis seemed unfamiliar with the term, but Philippe Trudel reminded him of his own personal experience of the phenomenon. In 1995, Mr. Duplessis had attended a BAT-wide scientific meetings, whose participants were cautioned that "due to the document situation in R&D at B&W, no detailed minutes of the meeting will be issued." (Exhibit 1604)

Mr. Duplessis was asked to explain. "I can't. Brown and Williamson had made a decision that this the way things would be. Basically they told us that is what it is going to be. We were free to go or not go on that basis."  His tone made the conditions of attendance sound as innocuous as planning to attend a pot-luck dinner. He had not even been curious to find out why minutes would not be taken. (And as for the absence of any personal notes he might have taken? He said he was a doodler who was incapable of taking notes.)

Unblocking responsibility for nicotine levels

A month ago, Imperial Tobacco's lawyers used Mr. Duplessis' testimony to suggest that Agriculture Canada was the decision-maker with respect to the nicotine content of Canadian-grown tobacco. Today, the plaintiff's lawyers used his presence to suggest that Imperial Tobacco made the decisions about how much nicotine went into a cigarette.

The document used to illustrate this was Mr. Duplessis' 1995 reflections on the many ways in which Canadian cigarettes could be differentiated from each other. (Exhibit 1605)  The company blenders "put together an array of blends that are tested with consumers" he said. "It was a company decision as to what tar levels the brand would have."

The trial sits for only two days next week. On Tuesday afternoon, Mr. Hirtle will return after an absence of almost one year. One Wednesday, another new witness - Mr. Neil Blanche.

Day 167: A detour through farm country

Since last Thursday afternoon, the Montreal tobacco trial has seemingly left the main road of industrial activity, and has followed a side-trip through the agricultural policies of the Government of Canada. Navigating this detour has been Imperial Tobacco's counsel, Ms. Suzanne Côté, and narrating it is her witness, ITL's former agronomist and research director, Gaetan Duplessis.

Mr. Duplessis is one of the most personable scientific witnesses to have testified at this trial. (Okay, the competition is admittedly not that tough). He retired three years ago with almost 30 years service at Imperial Tobacco, but this is no aging pensioner. Mr. Duplessis looks, speaks and moves like a man much younger than his 60 years. He has the air of a regular Montrealer, albeit of the born-French but studied-and-worked in English variety. (Like many Montrealers, he's a snappy dresser!)

Back to his roots

It was with his newly-minted Masters of Science in Agriculture that Mr. Duplessis joined Imperial Tobacco as a research assistant in 1981. Ironically, he studied at McGill's Macdonald Campus, which was named after the founder of Imperial's largest Canadian competitor at the time.

Mr. Duplessis not only rose through the ranks of agriculture researchers, he branched over into other aspects of Research and Development. In 2005 he was given the senior R&D position, which he held until his retirement in 2010.

Whereas historian Robert John Perrins had given a compressed history of government policies, Mr. Duplessis' tour gave us a very an almost microscopic level view of the government's plant breeding initiatives.

Where are we going, exactly?

Justice Riordan offered some modest resistance to the apparent change in direction. Several times he asked Ms. Côté to justify the new routing. "Why is this helpful?" "What am I supposed to get from this?" Her answers -- identifying each questioned document as a way to defend against an allegation or a piece of incriminating evidence -- seemed to satisfy.  It was soon clear that we were all along for the Côté-Duplessis tour.

But there were so many stops! So many points of interest! I think I saw more than 50 or more exhibits fly by. (Today's exhibits ran from 20231 to 20255). Who can be blamed if they all started to blur? Even Justice Riordan complained the cumulative effect was a "mishmash".

What were they thinking!??

Reports on Agriculture Canada's
tobacco breeding program were
"not for publication"

The most interesting part of the tour was the territory exposed when Mr. Duplessis spoke about government documents that have long been hidden from public view.

Dozens of exhibits tabled today suggest that Agriculture Canada made many decisions that were of questionable service to the Canadian public - and that it continued to do so even in recent years. For example:

The federal government financed the development of the tobacco blends that are smoked in Canada.  For the past 30 years, virtually all the tobacco plants grown in Canada are varieties developed by Agriculture Canada. Delgold - Delfield - Delliot - Candel - AC Cheng - AC Gayed. (Exhibit 20235 and others).

The government intended for nicotine levels in Canadian tobacco to increase. Agriculture Canada tried - and succeeded - to successively increase the amount of nicotine in these varieties. It changed its benchmark breed for new strains so that all future registered varieties would produce higher nicotine tobacco. (Mr. Duplessis testified that the tobacco companies resisted the increases, and pushed for nicotine levels to be reduced.)

The government accepted tobacco industry money to support its research. When Treasury Board would not finance Agriculture Canada's tobacco research, the companies and the growers chipped in to make sure the work was done. They established ON-TRAC (Ontario Tobacco Research Advisory Committee) and its successor the Canadian Tobacco Research Foundation.

The government was a contractor to Imperial Tobacco. Agriculture Canada signed research agreements with Imperial Tobacco in which the company provided project funding and the government provided scientific support. The research results, and intellectual property acquired, remained with Imperial Tobacco.

The government researched GMO tobacco. Biotechnology and "exotic germplasm" were the subjects of research agreements between Imperial Tobacco and Agriculture Canada. (Interestingly, BAT disavows the use of GMO tobacco).

The government manipulated nicotine levels in Canadian tobacco, even after doing so was an identified subject of public concern.  The 1994 scandal about Y1 tobacco was the subject of significant media interest and a catalyst for Health Canada to investigate whether nicotine spiking might be taking place in Canada.  Yet Agriculture Canada raised the benchmark level for nicotine in tobacco after these events.

[The report commissioned by Health Canada on nicotine levels in Canadian cigarettes was released in 1995, and is now evidence in this trial (Exhibit 40347.99). When the report was released, Health Canada said it exonerated the industry from the charge of nicotine manipulation. Given the clear suggestions that nicotine levels had been altered in the period, this public statement was denounced by those in the public health community who thought teh research results clearly suggested something was afoot. Even the report's author, Bill Rickert, would not agree with Health Canada's conclusions that the industry was not engaged in controlling nicotine levels. Today's evidence gives new insight into why the federal government might have been reluctant to throw stones!]

Mr. Duplessis painted a rosy picture of his relationship with Health Canada. He spoke of how "very impressed" officials had been following a visit to the ITL laboratories in the mid 1980s (Exhibit 20248.1 to 20248.3). He said that the details of Project Day and the industry's plan to reduce TSNA's through kiln conversation were discussed at length with Health Canada officials, who characterized these developments as "very positive."

Back on track

Returning from the tour of the federal government's tobacco farming policy, Ms. Côté invited Mr. Duplessis to respond to many of the allegations against his former employer. The witness gave a very sincere sounding "ABSOLUTELY not!" to a series of direct questions which asked him to corroborate the plaintiff's case.

Mr. Duplessis assured Justice Riordan that additives were not used in reconstituted cigarette tobacco, although there were some included in for fine-cut products.

He told the judge that, whatever the intention of BAT lawyers (Exhibit 82B), there were no restrictions on the sharing of scientific research, and that lawyers kept their distance.

If he expressed any concerns, they regarded the distancing his team felt from medical researchers, who were constrained by new professional guidelines or principles that prohibited collaboration with the industry.

Back by popular demand

So detailed were Mr. Duplessis' explanations that his testimony ran a half day longer than originally anticipated. Ms. Côté put her last question very close to the end of the day, leaving Mr. Lespérance only a few minutes to begin his cross-examination. As a result, Mr. Duplessis will return at a later - yet unscheduled - date.

A judicial squeeze on the calendar.

Justice Riordan appears to be stepping up his pressure to speed things up.

Over the past few days there have been more than a few signals from the bench that this judge has heard enough on some subjects. ("If someone starts explaining compensation to me one more time I am going to hit my head on the desk." "Not taking too much time, but it's a question of taking time unnecessarily." "I have had a lot of testimony on 'recon': I know the issues." ... and my favourite - "I understand what irritation is!" )

This morning he put it clearly to Imperial Tobacco's counsel that their next witness - Dr. Michael Dixon - should not be expected to testify at length. He forced the hand of that team to provide documents that would allow for negotiations on admissions.

And he repeated that the companies needed a "plan B" to provide "back-up" witnesses for those occasions when the schedule runs under time.  "If we run out of witnesses, you might have to start pleading your case," he teased/warned them.

From May 2013 to the end of September, there will have been 30 sitting days for the trial - but 13 fewer than originally scheduled for this period. (2 lost in May, 5 in June, 2 in August and 4 in September). Not surprising then that holes in the schedule are beginning to draw fire.

Tomorrow another expert witness will testify for Imperial Tobacco. Mr. Michael Dixon is employed by BAT and will speak about compensation. 

Day 166: The weight of evidence

"You can see the changing thinking as the weight of evidence is becoming more and more substantive over time."

Earlier this week, BAT's management scientist, Graham Read, referred to an increased "weight of evidence" as the reason that BAT changed its public stance from a position of casting doubt on the link between smoking and lung cancer and eventually acknowledging it in 2000.

Now in his fourth day of testimony - and second day of cross-examination - Mr. Read became the vehicle through which the plaintiffs added to their own "weight of evidence" of BAT trying to veil its scientific findings from any litigation efforts.

And by the contrast between his answers and these documents, Mr. Read made his own contributions to the "weight of evidence" against his being found a credible witness.

A very civil roughing up

In a studiously polite voice, Mr. Lespérance showed the witness a series of documents that suggested that BAT maintained a sustained effort to prevent their scientific research from becoming evidence in trials like this one.

The first of these was a memo written in the fall of 1988, just as Imperial Tobacco was preparing for a legal battle with the federal government over the constitutionality of a law banning tobacco advertising. The science department was taking steps to ensure a copy of its science database would not be held in Canada. Otherwise, "this could have serious implications in terms of discovering exercises on material held by ITL." (Exhibit 1575). (A year later, when the trial judge excluded scientific reports from discovery  - Exhibit 68, 70 -  Imperial Tobacco's legal team rejoiced at this "major victory.")

Mr. Read denied that the discovery referred to in the memo would have anything to do with litigation -- a view he repeated even though Mr. Lespérance showed him an accompanying analysis (Exhibit 1576) that cautioned: "Imperial's involvement in court proceedings would immediately implicate us should the lawyers discover that computer tapes had been received." 

The contrast between Mr. Read's version of history and the documentary record became even more dramatic when Mr. Lespérance recalled the response of Imperial Tobacco's head of science, Patrick Dunn. (Mr. Dunn has become a significant posthumous figure in this trial!)

When testifying at the U.S. Department of Justice trial, Mr. Read had been asked about document retention, and had been shown a document written by BAT's lawyers that complained "The problem is largely Pat Dunn and Roger Ackman's inability to control him." (Exhibit 1577).  Eight years later, Mr. Read seemed to have forgotten this testimony. He could not recall the document, and said he had been unaware of Pat Dunn's opposition to the policy "prior to seeing this document".

But Mr. Lespérance had additional documents which directly challenged Mr. Read's suggestions that he was unaware of Mr. Dunn's concerns. These records suggested the witness had been brought in to help resolve the disagreement between the companies (Exhibit 1578, 1579, 1580).

This is not the only Quebec court where Mr. Read has denied BAT's role in imposing rules on the science that was funded by its branch plants. Earlier this year, he prepared an affadavit for the Quebec cost recovery suit in which he said "I am not aware of any document retention policies of Imperial that may have been implemented by Imperial with respect to its R&D-related documents." (Exhibit 1581)

The two continents may indeed be divided by a common language. Mr. Read responded that his statement had nothing to do with the BAT-wide document retention policy. "You have to read the English as it is written." Apparently the "ITS" in "Its R&D-related documents" referred to documents generated within Imperial Tobacco's research department, and not those sent from BAT to Imperial.

Like the lawyers and witness before him, Justice Riordan gave no indication that Mr. Read seemed painted into a very tight corner. A jury trial would be so much more obvious in its drama!

Remember the date: 1958

At this stage of the trial, Justice Riordan frequently asks each witness a question at the very end of their testimony. His question for Mr. Read was to get a specific date at which BAT scientists adopted the working hypothesis that smoking caused cancer.

Mr. Read replied that "it was just after 1958"  and that this working hypothesis "would include Imperial from 1958."

This trial was assigned the question " Did the defendants know and were they presumed to have known about the risks and dangers associated with the use of their products?" It seemed this morning like the date 1958 had been put against the answer "yes."

Admissions

A lot of court time can be saved when lawyers concede elements of their opponent's case by way of admissions, and allow documents, affadavits or other forms of evidence to become part of the trial record without the need for a live witness.

In recent weeks, the plaintiffs have repeated their willingness to "make admissions" concerning the activities of Agriculture Canada, and to consequently cut the time of the trial by about a month. (Mr. Gaetan Duplessis was the first witness to appear on this subject. A report on his testimony, which began this afternoon, will be included in Monday's report).

But the "admissions" that were being discussed this week were those for another witness - Mr. Jean-Louis Mercier. It seems that Imperial Tobacco is no longer interested in this former president being recalled to testify. (They didn't say why they had suddenly changed their mind, but given Mr. Mercier's colourful testimony last year, some eyebrows likely went up on the plaintiff's side. )

Justice Riordan was clearly leaning on the plaintiffs to agree to substitute an admission for the two-day testimony that had been scheduled for later this month. This agreement would cancel the hearings scheduled for the week of September 23rd.

The trial resumes on Monday. Mr. Gaetan Duplessis will continue his testimony on events connected with Agriculture Canada and its development of new types of tobacco.