Day 179: A double bill: Two courts for the price of one

It's another new month at the Montreal tobacco trials, and another stage in the trial has been reached. JTI-Macdonald (JTIM) becomes the third and last of the defendant tobacco companies to present its in-house "fact" witnesses.

JTI-Macdonald counsel,
Kevin LaRoche & Nancy El Sayegh

With the change in roles came a new round of musical chairs. Mr. Kevin Laroche moved up from the place usually reserved for JTIM counsel on the back row of the defence side. He took his seat on the front desk at Justice Riordan's left hand. Beside him sat a colleague from the same BLG law firm, Ms. Nancy El Sayegh.

The courtroom takes on a lighter mood when Mr. LaRoche is at the front. Watching today I appreciated some of the techniques he uses to lessen tension: reaching out to his opponents in the hallway before the doors were unlocked, prompting them to laugh at his joke in the moments before he began his examination of his company's first witness, maintaining always a congenial tone and non-aggressive body language. He makes it look easy, and perhaps for him it is.

There were others from JTIM's team in the room - notably Mr. Guy Pratte who watched the morning's session from the observers' seats behind the bar. He was flanked by a small group of students from Concordia University's school of journalism who had been assigned the task of preparing a 500 word report on the morning's events. Good luck with that!

One trial regular is obvious not with her presence, but with her increasingly prolonged absence. It is now six weeks since the hard-to-overlook wagon master of Imperial Tobacco's team has been seen in this courtroom. Nothing has been said about Ms. Glendinning's current whereabouts, but I am likely not the only one who is wondering whether we should be sending flowers or just looking for sudden developments in some other courtroom.

Mr. Howie's return appearance

More than a year has passed since Mr. Raymond Howie last testified at this trial. Not quite enough time to entirely forget his still-thick Northern Irish accent or his idiosyncratic views on health issues. But long enough, Mr. LaRoche may have thought, to give this witness a second chance at a first impression. Certainly the first rounds of questions he put to his witness allowed us to see Mr. Howie in a more personable light.

Perhaps as a warm up question, Mr. Howie was asked to describe his former boss, Derek Crawford. An old fashioned man. Very straight. Very honest. A workaholic. A perfectionist. A gold medal Olympic writer - no doubt about it. He spoke of his nervousness when having a go at buying tobacco through the Dutch Auction system. "The company was lucky it wasn’t my job!" 

When he spoke of tobacco blending he sounded like a vintner talking about terroire.  The importance of knowing the farmers' reputation, The balance between the "notes" of tobacco taken from different parts of the plant. The "good smoke" that results when there is a long hot summer.

Although these anecdotes were interesting to listen to -- a welcome quality these days - their connections to the issues before the trial seemed less clear. Nonetheless, they did seem to lighten the mood - and I noticed that Justice Riordan seemed to be enjoying them.

Soon the questions progressed to many of the same issues that had been discussed with Mr. Howie last year. But this time the overarching framing was not so much what the company was trying to do as what it was unable to do.  From the way the questions and answers flowed, it seemed that RJR/JTI-Macdonald did not have the know-how to do much of anything, let alone to do anything complicatedly wrong.

Mr. Howie confirmed many areas in which the company did no research at all. Not into the health consequences of smoking. Not on the effects of nicotine. Not on why people smoked. Not about why they quit. Not on how they smoked cigarettes or whether they 'compensated' for low deliveries. If Mr. LaRoche was trying to establish that his client met expectations for some level of diligent effort by manufacturers, he had an unusual way of doing it.

Instead, Mr. Howie testified that the company and its scientists relied on information produced by others -- most notably by the research department in the Bowman Gray building in Winston Salem. Their American owners provided them with direct research support, and also kept the up to date with other research findings (Exhibit 40352). 

It was a good arrangement, Mr. Howie said. "Right from the start it was an excellent relationship. They were well qualified, knowledgeable people. Good people. Great to visit. ... In my whole career it was one of my best relationships with any outside group." 

Yet research of any kind did not seem to figure very highly in the answers Mr. Howie gave today about the many issues where his company's views differ from those of the plaintiffs. It was his own experience and observations that were used to support his conclusions.

A former smoker (he quit 8 years ago), he recalled his motivation for smoking in ways that made no mention of any drug effect. It was instead "the ritual, the habit, the hobby," that kept him smoking."The ritual of going out and buying a pack of cigarettes. Bringing it home, opening up the cellophane and getting the first smell of the fresh tobacco." ...  "the climax of lighting the cigarette and taking the first puff." 

When he decided to quit (why? "Getting to a certain age, I thought that it was best to quit, given the link.) he had no difficulty in quitting cold-turkey. Oh yes, he had benefitted from lower tar brands by "weaning" himself down tar levels until quitting was not too much of an effort.

It was what he saw in the market place that suggested that nicotine is not the drug that drives smoking. "If that were true, all that people would need to do is to buy nicotine gum or the patch. They wouldn’t need to buy cigarettes any more. But it is the ritual of the cigarette and the combination of the tar and nicotine that gives a unique taste and flavour." 

He based his doubts about ongoing compensation on his own physical reaction to smoke. "You can tell [when you are compensataing] because the cilia hairs - when you are smoking a high tar cigarette you can tell those aren’t working and you get a lot of phlegm and are coughing a lot."

What's in a number?

For many years, cigarette packages displayed quantities of tar, nicotine and carbon monoxide on the side of the package. The accuracy of the numbers shown has been called into question in this trial -- but Mr. LaRoche introduced an even larger challenge to the usefulness of any numbers when he asked Mr. Howie to talk about a calibration exercise undertaken among tobacco laboratories in Canada. (Exhibit 40349).

The results suggested that there was a 20% variance in the results among only 6 labs. While a control cigarette produced an average tar value of 9.6 mg across the laboratories, the variation of 1.9 meant that on some machines it was reading as high as 11.5.

Mr. Howie said that it was ever thus. "These numbers don’t surprise me. There is tremendous variation when you get laboratories together - even without considering the variableness of the cigarette."  

Safer cigarettes eclipsed by ad ban

RJReynolds was the pioneer of innovative cigarettes, like Premier and Eclipse. Previously questions on these products have been ruled out of order, but Mr. LaRoche was able to ask Mr. Howie to talk about why these products had never been marketed in Canada, even though that had once been the plan.

He said that Premier had been an unsuccessful product. "They found it difficult to communicate to consumer what all this was about. One of the biggest things was that it didn’t diminish like a cigarette .. after 10 puffs you are looking at the cigarette it is the same size."

It wasn't only the concept that made smokers reject Premier. "It was the taste. They wanted the real taste of a cigarette. [The company] had to go back to the drawing board, and that's when they came out with Eclipse." 

Mr. Howie was one of the few users of that brand. He said he had smoked Eclipse cigarettes for about 3 months when he lived in Geneva. "I got used to it, but it wasn’t really a good smoke."

He said the reason they were not ever introduced in Canada was because there were "two big walls to climb - a bad product and no advertising."  He said it was "unfortunate" that the Eclipse cigarette was dropped. 

What I meant to say

Mr. LaRoche spent some time asking Mr. Howie to testify again on several documents that had been shown to him last year by the plaintiffs. These involved the tendency of smokers to block the ventilation holes of JTIM brands (Exhibit 623, 623A, 623B, 629), and the use of additives (636A, 630).  

Mr. Howie repeated his view from last year that the study which measured hole-blocking was flawed, and that his own re-calculation (which he never showed the court) lead him to believe that instead of 75% hole blocking the number was more likely 40 to 50, or even 10% to 15%. This year he provided additional methodological reasons for his conclusions, and added a postscript to the issue: the ventilation holes had been moved in 1989 when when the new ISO measurement method was adopted in Canada.

He put a stronger emphasis on the lack of guidance from the Canadian government about the use of additives, and the company's reliance on the UK Hunter Committee, which he described as "working their way through all the additives" to assess toxicity of each one. He said that all of the additives used in Canadian cigarettes were in conformity with that list or had been tested in Winston Salem and found safe for use. (Exhibit 636A).

Although Mr. Howie had been scheduled to testify for two days, Mr. LaRoche may have decided that it was better a good time than a long time. By early afternoon he had asked his last question.

The cross-examination

The collegial mood continued through the afternoon as the plaintiff lawyers put their questions to this witness. (Mr. André Lespérance and Mr. Philippe Trudel customarily cloak their hard questions in a gentle voice). 

Mr. Lespérance began his questions with a focus on what had happened since Mr. Howie last testified. 

Mr. Howie's answer sounded frank. He said that "they" - by which I think he meant himself and the lawyers - had reviewed the transcript from last year and considered "the sort of message that we wanted to get across that we did not get across a year ago." "There were certain areas that needed to be emphasized."  "There are one or two areas where my answer today would be different."

He had not, however, changed his mind about causation. Despite his admission that the "statistical epidemiology is beyond reproach" he was not able to quantify the magnitude of the risks of smoking. When pressed, he said that the risks of smoking were "low to medium.". It was "probably true" that at least one Canadian died as a result of smoking last year, but he said he had "no idea" whether as many as a thousand might have. 

By this point, Mr. Howie sounded much more like the man who had testified for 4 days last year. And Justice Riordan's brow was beginning to furrow in a familiar way.

Mr. Lespérance showed documents that had a competing view to Mr. Howie's. Among these were Dr. Crawford's recommendations to downplay the Hunter additive list and to withhold information on some process ingredients from government. (Exhibit 630B). 

Contradicting Mr. Howie's opinion that all the chemicals on the Hunter list had been tested for toxicity were the veiws of his boss and Health Canada that said chemicals which had been "used for many years" could be included without further evaluation. (Exhibit 802B, 1620, 1620A).

Mr. Lespérance asked Mr. Howie about a report he had received from RJR additive specialist, Dr. Suber. This extract from the 1979 US Surgeon General's report (Exhibit 601-1979A - not yet available) noted that glycerol (an additive used by RJR-Macdonald), when burned, produced harmful compounds. 

Mr. Howie bristled. "I disagree with this ... There is no harm that can come from the use of glycerol. ...  I don’t know why we have to go through this additive diatribe because it is not right. We took all of our additives out, whether they were process enhancers or whether they were flavours or flavourants, we took them all out. But even though they were in there we made damn sure they were not causing any harm!"

Another additive used by the company - sorbitol - was found to produce benzopyrene, Mr. Lespérance pointed out. This admission was on the very same toxicity sheet that Mr. Howie had used to support his view that sorbitol was safe (Exhibit 40350). Mr. Howie irritation level increased. "In this air we are breathing there is more benzopyrene. In a barbeque! You are clutching at straws in all of this. We have been given a simple and succinct answer from Dr. Suber" 

More numbers

Exhibit 366 - pH levels of
Canadian cigarettes

Perhaps the most vulnerable moment in Mr. Howie's testimony was when he was asked to explain how it was that Export A cigarettes produced a pH value of over 6 on the "benchmark" study prepared by the companies when his own testimony had been that such levels allowed for the release of "free nicotine". (Exhibit 366)

Like me, Justice Riordan and André Lespérance seemed to have difficulty understanding how the "lab to lab variation" could explain this away. Mr. Howie stood firm. "You really don’t get this. These are from another laboratory!"  As I eventually understood it, he said that a much higher pH value from other labs would be required for it to be assumed that free nicotine could be produced by Export A cigarettes - -maybe 6.5 to 7.

"We had no free nicotine in our brands."

Back to the farm

The story of industry programs to reduce nitrosamine levels in cigarettes by changing curing systems on Canadian tobacco farms was recently introduced to the trial. The necessary kiln conversion happened in 2001, a few years after the time period of this trial.

Mr. Trudel finished the cross-examination today by asking about a previous kiln conversion - one that happened during the trial period. He showed Mr. Howie reports by Agriculture Canada and Imperial Tobacco from the 1950s and 1960s (Exhibit 1621R and 1622R, not yet available) that described the traditional "flue curing" barns where heat was delivered to the freshly harvested tobacco through sealed pipes that snaked through the barn floor. Mr. Howie said he thought he had seen barns with the external chimneys, but could not recall the internal pipes.

The documents discussed the conversation of these kilns to a less expensive system using propane gas as a heat source. Exhaust from the propane flame was blown directly onto the tobacco. 

Mr. Trudel wanted to know whether the company had ever monitored the level of nitrosamines in their product. Mr. Howie said they had not had the capacity to do so. Nor did he think it reasonable for the company to have been expected to do so.

"We could have gone out and found a method – but what would have been our purpose?  ... We would be measuring 4,000 or 5,000 chemicals. is that what you are suggesting? That’s not practicable."

Across the street

Today, the action in this trial was not limited to the Superior Court. 

The Court of Appeal was the second ring in this always-fun circus.

There, Justice Yves Marie Morissette was presented this morning with a request from Imperial Tobacco for leave to appeal Justice Riordan's September 13th decision rejecting their request for medical records or other personal details of the smokers who may be selected to testify at the end of the trial. By agreement the timing of this ruling was designed to allow for the Appeal Court to make its own determination without imposing a delay on Justice Riordan's ruling.

Montreal's Court of Appeal as
seen from the 17th floor of
the Palais de Justice

You can't be two places at once -- I could see the Appeal Court from the corridor window during the morning break, but had to rely on my colleague, Pierre Croteau, for details on this morning's important event across the street. 

He tells me that Justice Yves-Marie Morissette spent about an hour listening to Ms. Suzanne Côté's explanation of how the circumstances are different than the three previous times that the Court of Appeal has declined the invitation to overturn Justice Riordan's rulings on the subject. (in 2009, 2010 and 2012) and to the reasons offered by Marc Beauchemin and Gordon Kugler why the same logic should apply. No decision was given today.

The trial continues on Tuesday afternoon with testimony from RJReynolds scientist Jeffrey Gentry. His testimony is expected to continue to the end of the week. 

Day 62: "Trying to put it into perspective"

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

After a testimony almost twice as long as originally planned, Mr. Howie ended his fourth day at the Montreal tobacco class action trials today.

Over the past week, plaintiff lawyer André Lespérance has entered more than 60 exhibits pulled from the scientific archives of RJR-Macdonald. On most of these, Mr. Howie was asked for his knowledge about the events described in them, or about the findings of other researchers. (There was very little of his own research work presented, nor has much survived on the Legacy web-site. Even in the 'secret science' of the tobacco industry, he appears not to have been a very central researcher.)

The reason given for the additional days of testimony was that additional time was needed to introduce all the documents that the plaintiff's wanted as evidence for their case. Certainly Mr. Howie talked very  slo-o-o-wly and frequently offered explanations as he was "trying to put it into perspective."

But the extra days with the witness also allowed his testimony to wear a little thin. His key messages were something like this:

- His company was following the suggestions of the federal government and the scientific community in reducing the tar levels in cigarettes and in trying to increase the amount of nicotine relative to tar.
- The company's hands were tied with respect to further modifications to make cigarettes safer because smokers want to inhale both tar and nicotine.
-Federal government research that resulted in new varieties of tobacco plants made it easier to increase the amount of nicotine compared to tar, and the companies also found other ways of doing it.
-As a bench scientist he knew nothing about the policies of the company with respect to smoking and health, and has virtually no recall of any events that make the company look sketchy.

The witness reminded me at times of plumbers that have visited my house and have blamed their difficulties on the work of other tradesman. "This study here is flawed from the start...." he said of an internal report on smoker compensation.  "A prudent toxicologist should say nothing until he knows the fact" he said to dismiss a caution that adding sorbitol to cigarettes had the 'potential' to create cancer-causing benzo-a-pyrene.

Mr. Howie's memory was clear on points which sustained his key messages, but he had little recollection of whole programs of work that were not supportive to his employer, even though his name was attached to  memos and reports on those activities.  He was categoric that no cigarettes sold had ever been made with ammoniated tobacco sheet. But he could not remember the name of the AJAX factory where the tobacco sheet was made, nor details of any of the studies on the product that were conducted under his leadership in the science department.

The documents introduced today by Mr. Lespérance provide examples of several ways in which RJR-Macdonald wanted to succeeded in manipulating the nicotine levels in cigarettes:

* RJR-Macdonald science head (Derick Crawford) advised his president (RC Shropshire) on several lways to "increase nicotine yields whilst maintaining tar yields" (1976, Exhibit  644, 644B).

* When under pressure from Health Canada, the company worked on an industry consensus to use only additives approved by the German or UK tobacco authorities. This consensus included two big loopholes -- additives to paper didn't have to be on the list, and neither did "natural extracts". (July 1983, Exhibit 642)

* RJR laboratories in Winston Salem conducted experiments on how to increase nicotine relative to tar, and reported three successful ways of doing so, including through the use of additives.  (1977, Exhibit  645)

* RJR-Macdonald's head of research reported that three of the company's brands were designed to deliver higher nicotine relative to tar (Vantage, Export A Lights and Cavalier). He knew that Philip Morris used ammoniation to boost nicotine, and laments that this is more difficult to do in Canadian cigarettes. (1978, Exhibit 647)

* RJR-Macdonald experimented repeatedly with using ammoniation to increase pH and thus increase 'free nicotine'). (1979-1984, Exhibit 648,  648A,  648B,  648C)

* RJR-Macdonald determined that paper additives would change the delivery of cigarettes (1982, Exhibit  649)

* The papers used in RJR-Macdonald cigarettes had ammonium phosphate added to them (Exhibit  641, 641A).

* RJR-Macdonald sought to increase the amount of nicotine in the tobacco used in its cigarettes (1983, Exhibit  650)

The cross examination

Mid-afternoon, Mr. Lespérance signalled that he had no more questions for the witness, and the opportunity for questions was open to others.

The first round went to the federal government lawyer, Maurice Regnier.

Mr. Howie had given long explanations of how the federal government had requested the companies to reduce the overall tar levels in cigarettes. Mr. Regnier asked Mr. Howie to confirm a fact that had not been volunteered to the court - that the federal government had also requested the industry to reduce levels of nicotine.

Mr. Howie was also asked to look at Mr. Regnier's calculations on the range of tar/nicotine ratios in Canadian cigarettes sold in the late 1980s (based on Exhibit 50017).
"If most of these cigarettes were manufactured from the same tobacco how can we see such differences in the tar to nicotine ratio? asked Mr. Regnier.
"The differences in these brands is being brought about by product development techniques, not by the tobacco," said Mr. Howie.
Point made. It was the industry, not the government, that made nicotine levels go up.

The next round went to Kevin LaRoche, JTI-Macdonald's counsel. He showed Mr. Howie a press release issued by the CTMC in 1994, after the use of additives had become a hot media topic in the United States (Exhibit 40017, also on Legacy).  Were any of the compounds used associated with ammoniation? "No" said Mr. Howie.

Mr. LaRoche also turned to yesterday's damaging testimony that showed Mr. Howie proposing a  12 mg label on a cigarette that gave a 13 mg tar result to the smoking machine (Exhibit 629). JTI's lawyer invited  Mr. Howie to describe these test results as highly variable, and then asked what tolerance in measurement the government regulations provided for. "Plus or minus 1 mg" answered Mr. Howie.


(Mr. LaRoche did not ask why the company downplayed perceived risk by using a 12 mg label for consumers instead of telling smokers that their cigarettes might give as much as 14 mgs of tar).

Ar this point, the cross examination got a little giddy, reminding me of the final round of a late-night card game as the courtroom players picked up the pace and extemporized. There are few moments in this trial that are not on a set game plan, and everyone seemed to enjoy the sport of a faster play.


Mr. Potter amusingly returned to the list of tar and nicotine levels that Mr. Regnier had produced and drew attention to the highest value on the list - Twenth-one milligrams. In his customary dramatic way - arms in the air - Mr. Potter asked what the highest value had been before the industry worked so hard to reduce tar levels - clearly expecting that this would be a much higher number.

"Eighteen milligrams" answered Mr. Howe. No one laughed openly at this answer that suggested the opposite of Mr. Potter's point - nor did anyone point out that Mr. Potter was on the wrong column, and had cited results for fine-cut tobacco.

In the last question Mr. Lespérance asked Mr. Howie to explain the wording in the CTMC press release that had been introduced by JTI's lawyer. What was meant  by the statement that reconstituted to tobacco had "naturally occurring" compounds added to it? Mr. Howie explained that an product that existed in nature would be considered naturally occurring in this context.

And as for the statement that "None of the manufacturers adds flavourants to tobacco and paper"? Well, the substances that were added weren't flavourants - they were there for other reasons.

Wasn't it misleading to suggest that there were no additives by saying there were no flavourants? asked Mr. Lespérance. "I don't think so" said Mr. Howie.

The whole truth is not a requirement for press releases, after all.

Tomorrow, a former marketing executive and president of RJR-Macdonald, Mr. Peter Hoult, will testify.

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

Day 61: The revisionist scientist

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

Monday's session at the trial of the Quebec class action suits against tobacco companies ended on a cliff-hanger. Would Justice Riordan stand by his decision earlier in the day to cut off the plaintiff's ability to produce evidence on diseases other than addiction and the four respiratory system diseases identified in their suits?

He had left the court without indicating how he would rule on the plaintiff's plea for reconsideration of this unexpected ruling. When the court reconvened this morning, his decision was top of everyone's mind.

Bootlegged on the contraband decision

Justice Riordan did not maintain any suspense. Within seconds of sitting down, he told the court he had decided to postpone his decision: "I will not rule on yesterday’s motion until at least after the Court of Appeal has taken a position on contraband." 

In a brief statement, he reflected on the potential philosophical connection between the issue and his previous ruling on contraband, whose appeal is being heard later this week. It will likely take months before the Court of Appeal gives its decision. Until then, Justice Riordan will continue to "take any proof on the issue under reserve of the ongoing objection of the companies."

Beneath the poker faces on the plaintiff's side, I discerned some relief.

Back to science

In very short order, the court returned to the business at hand - the examination of JTI-Macdonald's former chemist and one-time director of research, Ray Howie.

A rhythm was quickly set for the day. André Lespérance would steadily introduce documents from the research operations at the time that the company was wholly owned by RJR-Macdonald. Mr. Howie would provide answers of varying length that often added little content. About 40 exhibits were entered in this fashion.

The steady and unmodulating speech patterns of both men were in contrast to the drama of the stories told by the documents.

These stories involved three broad themes. The first was the policy and practice of Canadian tobacco companies in funding research by independent scientists. The second was the design of RJR-Macdonald's cigarettes to overcome smoking machine measurements. The third was the secretive use of additives in Canadian cigarettes.

Mobilizing friendly scientists

As it had in other countries, the Canadian tobacco industry collaborated to fund scientists whose work was considered helpful. They did not follow the U.S. example and establish a Council for Tobacco Research (disbanded as a result of litigation), but they did work through the Canadian Tobacco Manufacturers Council.

The records which became public today show that the companies frequently struggled with differing philosophies on funding. The companies with U.S.-based owners (RJR-Macdonald and Benson & Hedges), for example, took a dim view of funding research on children's brain waves to find out whch ones would become smokers. They foresaw "traumatic consequences" if the funding became public knowledge. On the other hand, the UK/South African based companies (Imperial and Rothmans) wanted Verner Knott to continue as a favoured researcher for the industry. (Exhibit 618)

The documents suggest that Derick Crawford, who was head of  RJR-Macdonald's research branch, acted a middle manager between the scientists and lawyers at the head office in Winston-Salem head office and his CTMC colleagues who sought a unified position on industry financing as they did on regulatory issues.

Squeezed in the middle, he sold the positions of his colleagues to his head office (i.e. exhibit 618), as he represented the head-office position to his Canadian colleagues (i.e.exhibit 615, 616).

By the end of the 1980s, Mr. Howie testified, the entirety of the CTMC research funds were focused on proving that regulations on second hand smoke were undesirable or unnecessary. In 1987, as Parliament was considering legislation to protect workers from second hand smoke, the industry was looking at ways to set up a Canadian equivalent of the Centre for Indoor Air Research at Concordia university (Exhibit 612B)

Related exhibits:  611, 612, 612A, 612B, 613, 613AR/Legacy, 614R, 614A, 615, 616, 616A, 617, 618, 619, 620, 621)

Revising science 

Ray Howie had more to say about the second theme of documents - the adjustments to the tar and nicotine deliveries of RJR-Macdonald's cigarettes in the 1970s and 1980s.

A snapshot of the issue as seen by the company at the time is in an 1978 exchange of documents between a new marketer (Alan Mew) and the head scientist (Derick Crawford) (Exhibit  622, 622A). Mr. Crawford reports that the company is working hard to come up with a product with more nicotine compared with tar by year's end  and he details the variables that they are exploring to get there: "blend selection, filter design, special paper, the use of dilution, the possibility of certain additives etc., etc." Mr. Howie cheerfully explained how these various design elements could be engaged to "push in the nicotine direction".

But it was the next series of documents that introduced to this trial a new testimonial tactic. The documents involved RJR-Macdonald's response to studies into how the holes in their cigarette filters were being blocked by smokers lips, thereby delivering more tar and nicotine than indicated on the package.

The first knowledge of hole blocking (one way of over-riding the design of low-tar cigarettes to inhale more smoke) seems to have come from  RJR's 1983 in-house studies (Exhibit 623, 623A,624, 624A). In response to this knowledge, the company decided to do nothing, "unless a major issue came of it" in which case they would plead prior ignorance.

Thirty-years later, when asked to testify on these documents, Mr. Howie did not confirm what the documents clearly detailed. Instead, he reversed the opinion reflected in the corporate records, including memos he had written.  Over this past summer, in preparation for this trial, he had re-analyzed the data, and is now of the view that the company was wrong in 1983 to assume that smokers compensated in this way.

The original report was "not reliable" he testified today, and was "methodologically flawed."  His recent review convinced him that smokers did not block holes or compensate as much as the original company research concluded.  Instead of blocking 75% of the holes, only 40% to 50% would have been blocked.

To revisionist history we can now add revisionist science.

Management resistance

However reassured Mr. Howie was today, the memo written by his (now deceased) former boss, Derick Crawford suggests that the head of research and development had ongoing concerns about the placement of ventilation holes so close to the end of the filter that they would be almost unavoidably blocked during smoking, either by a machine or by a human.

In 1988, Mr. Crawford wrote a review of the situation (Exhibit 626) lamenting that he "was unable to change the attitude of Senior Management, to a lengthening of the filter and moving the holes further away from the mouth end to prevent lip coverage of the first or even the first and second line of holes."  The next year, in preparation for his retirement, he wrote a farewell note to a colleague. In it, he identified a number of steps he thought the company should take, including moving "tipping perforation holes away from being covered by the lips." (Exhibit  627 )

A narrow insertion depth in smoking machines hides
the effect of smokers covering ventilation holes with their lips

In the mid 1980s, the industry was facing pressure from Health Canada to change the parameters by which cigarette smoke deliveries were measured and Mr. Howie was tasked with coordinating efforts at the CTMC. A stumbling block between companies was the amount of cigarette that should be put in the smoking machine: RJR wanted a narrow insertion, as that would not block the holes in Export A Light cigarettes. (Exhibit 626,  628).

There was only one document entered into evidence today that was written by Mr. Howie in 1989. In it, he admits that Export A Light "had ventilation holes positioned 8 mm from the mouth end of the cigarette. When the consumer smokes this cigarette, he covers the holes, resulting in a stronger smoke." He notes that the new test method mandated by the government will require that the holes be moved a little further down the cigarette. Although his tests show that the new design delivered 13 mg of tar, he recommended labelling it as a 12 mg cigarette. (Exhibit 629)

Related exhibits:  622, 622A, 623, 623A, 623B, 624, 624A, 625, 625A, 626, 627, 628, 629,

Additives

The last series of documents introduced today involved the use of additives in RJR-Macdonald cigarettes until at least the late 1980s.

Last week, Mr. Howie had testified that all of the additives they used were on the list approved by the (UK tobacco advisory) Hunter Committee. "We strictly used that Hunter Committee list, and if it wasn't on the Hunter Committee list we would not use it."

It turns out today that this is not entirely the case. In a list of additives used (Exhibit 630R, under reserve), the company also relied on the GRAS (generally regarded as safe) list of ingredients approved for food. As André Lespérance pointed out to the witness, the GRAS list was not for substances that were burned or inhaled.

In the 1980s, the Canadian government put pressure on the companies over the use of additives, (Exhibit  632, 633), raising safety concerns. RJR-Macdonald relied on their US-headquarters for analysis of additives, and received a worried message that one of the ingredients used in Canada (sorbitol) "increased Benz-a-pyrene yields." Mr. Howie could not say today whether this information had been shared with the Canadian government or with the Hunter Committee.

On behalf of RJR-Macdonald, the Winston-Salem laboratories tested tobacco that had been treated with nicotine-enhancing ammonium phosphate dibasic, to see if it was more harmful. The test results showed that on one cancer-related test the results were 70% higher for the treated tobacco. The company was not advised against using the blend, only to reduce the amount it used.

Mr. Lespérance asked Mr. Howie whether he remembered whether RJR-Macdonald ever stated publicly that it was not using additives. "I don't recall" said Mr. Howie. Nor did he remember whether the CTMC made a similar statement.
"Because that would be untrue?" asked Mr. Lespérance.
"Yes, because we still had additives. We were in the process of removing them, but we had not removed them all."

Related exhibits: 630, 630R 631, 632, 633, 634, 635, 636, 637, 638, 639, 640

As is often the case in this trial, at the end of the day the plaintiffs still had more questions for the witness. Mr. Howie will return tomorrow, and Mr. Hoult is scheduled for Thursday.

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

Day 60: A bolt from the blue

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

My guess is that each of the six legal teams involved in the Quebec tobacco class action suits spent hours this weekend reviewing scenarios for the scheduled testimony today of RJR/JTI-Macdonald's chemical analyst, Ray Howie.

If so, they may wish they had just gone to the movies or played with their children. What happened today threw over everyone's game plan for the day, and may even change the course of this trial.

The day started routinely enough. André Lespérance unhurriedly introduced documents and asked questions, which Ray Howie calmly answered.

For about an hour the focus was on the company's efforts in the early 1980s to allay concerns about (and avoid regulations over) carbon monoxide in cigarette smoke. It was a perfectly interesting story and a juicy example of the industry's willingness to sidestep health concerns (see below).

Mid-morning Kevin LaRoche, who represents JTI during Mr. Howie's testimony, tried to put some brakes on the damage to his client. He told Justice Riordan that he was concerned that the discussion of the company's actions related to the effect of their cigarettes on fetal weight and cardiovascular disease was wandering away from the "class diseases" of lung disease and addiction.

André Lespérance, likely thinking that this was no different from scores of objections on relevance that are quickly dismissed, briefly responded that their claim included the companies' failure to warn and therefore questions about informing smokers of the risks of carbon monoxide to heart disease and fetal weight was relevant.

Kevin Laroche pressed his case, saying that the scope needed to be limited “otherwise it becomes a Royal Commission of Inquiry into the behaviour of the industry which is one thing it can't be if we want it to finish in this century."

Justice Riordan dropped a bombshell:  I maintain the objection.  Unexpectedly, the plaintiff's case lay on the chopping block. Swaths of evidence presented and planned was suddenly ruled not relevant to the trial.

Immediately Bruce Johnston and Philippe Trudel were on their feet. Bruce Johnston pointed out that the Letourneau claim on addiction in particular relied on allegations that the companies lied, which they needed the opportunity to prove. It's a stunning, STUNNING objection, he exclaimed. Indeed they all looked quite stunned.

Justice Riordon then made a second surprising statement, inviting the plaintiffs to refer the decision he just made to the Court of Appeal. He went further to say that he would welcome that higher court's clarification. This sudden desire for a higher court's view is very different than his usual more biting references to the frequency with which the tobacco companies try to appeal his decisions.

Philippe Trudel recovered quickly enough to request the opportunity to present a motion for reconsideration in the afternoon, which was agreed to.

So, six months into the trial, what was that cause of action again?

And so it was that in the afternoon Mr. Howie was sent home and Justice Riordan was presented with some quickly developed arguments for and against a mid-trial change in the scope of examinations.

It was up to Philippe Trudel to make the arguments for the plaintiffs. He pointed to the numerous clauses in motion to institute proceedings that specifically refer to the company's failure to warn, and the detailing of 31 diseases caused by smoking. Among those claims is the allegation that "Mrs. Létourneau is addicted to nicotine, a toxic product and her addiction exposes her to an increased risk to get one or many of the diseases associated with cigarette use, as well as expecting a reduced lifespan." [unofficial translation]

He also referred to the decision of Justice Jasmin when certifying the class action, and the questions that were set to guide the joint proceedings: [unofficial translation]

* Did the defendants have knowledge of, or could be presumed to know about the risks and dangers associated with their products

* Did the defendants put in place systematic policies of non-disclosure of these risks and dangers

* Did the defendants trivialize or deny these risks and dangers?

It was not only the plaintiffs that thought these issues were part of the trial, Mr. Trudel pointed out, but also the defendants. He referred to the company's filings and the plans to have expert witnesses rebut allegations about many diseases.

Earlier attempts to strike down the parts of their claim that included other diseases, he reminded Justice Riordan, had been rejected by Justice Julian in a 2006 ruling. Justice Riordan himself, in a 2001 decision had rejected a request by Health Canada to limit questions to their witness, Denis Choiniere. At the time he had said that such information was relevant "in light of the claim for punitive damages." 

A decision to prevent the introduction of evidence to support their allegations was just another way of striking those allegations out of the claim, he pointed out. 

Both Mr. Trudel and his colleague Bruce Johnston tried to explain why industry actions to minimalize disease risks was part and parcel of their cause of action and their theory of the case.

Mr. Pratte, who led the industry's positions took a different approach in presenting his arguments, ignoring any pleadings or case materials. He acknowledged that the plaintiffs had met the necessary test of showing that these diseases were included in the pleadings. But this was not sufficient to allow these issues to remain part of the case, he said. He relied on case law and legal analyses which he shared with the other lawyers, but did not display on the screens.

Mr. Potter seemed to respond to hints dropped by Justice Riordan of a desire to rein in the trial. He reminded the judge of his decision in June to rule questions regarding 'firesafe' cigarettes irrelevant. He suggested that Justice Jasmin's foundational questions were not always relevant. 

For Imperial Tobacco, Craig Lockwood made a very short comment to the effect that there "needs tie back of common issues and class definition. There needs to be a substantive hook into the damages." For the federal government, Maurice Regnier said nothing.

We're awake now

Last week, Justice Riordan complained that Bruce Johnston's questions might be intended to "wake up the judge." His ruling today has certainly shaken up the plaintiffs.

Justice Riordan adjourned the day without ruling on the motion for reconsideration. 

Back to Ray Howie and Carbon Monoxide

Before this dramatic turn, Ray Howie had continued his testimony about events at the company. He continued to maintain that he had little involvement in 'smoking and health' issues and was mostly unaware of the engagement of boss, Derick Crawford, on this file.

His ability to make this sound credible took a bit of a beating when André Lespérance asked him to read aloud a handwritten note received from his boss at the end of 1981. In it, Derick Crawford brought him up to speed on the threat of government action on carbon monoxide and the plans of the CTMC "to put together an industry document comprising input from all four companies trying to refute the alleged dangers of CO." Mr. Howie's proposed task was to quickly write up "two pages of facts on why we feel there is no justifiable evidence at this time to associate CO with any health disorder."

The problem identified in the memo and in Ray Howie's testimony was that the evidence wasn't all on their side - particularly with respect to the effect of carbon monoxide on fetal weight which "does not look too good." (Exhibit 600C, see also Exhibits 600, 600A, 600B)

The 30-year old memo seemed much more compelling after being read aloud in his Irish accent than if just flashed on the screen. Mr. Howie said the as events turned out, he had not written the paper requested. The government eventually "backed off" and had not regulated carbon monoxide levels until the passage of C-51 in 1988. 

Mr. Howie will continue his testimony tomorrow. Former RJR-Macdonald President, Peter Hoult, is expected to testify on Wednesday and Thursday.

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

Day 59: The bench scientist before the bench

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

On Thursday September 20th, the plaintiffs in the Montreal tobacco class actions called their second witness from Japan Tobacco's Canadian subsidiary, JTI-Macdonald.

His name is Ray Howie, and he is an analytical chemist who joined the company shortly after it was acquired by RJ Reynolds Tobacco International in the early 1970s. He came with seven years' experience working for Gallaher, a UK-based tobacco multinational which, like RJR-Macdonald, was eventually acquired by Japan Tobacco.

Mr. Howie eventually rose to the director of RJR-Macdonald's research unit (in 1989), and later was promoted even higher to become regional research director at the international headquarters in Geneva. He retired in 2001.

It may have been the Gallaher connection which made me think his still-thick accent is Northern Irish. He certainly had a celtic look -- slender, not tall, fair and with thick curly hair that would once have been black. His brilliant lavender tie stood out against the black and white wardrobe of the court.

A pleasant atmosphere

The trial is still adjusting to the change in players. Today a new member of the JTI legal team was introduced - Mr. Keven LaRoche from the firm of Borden Ladner Gervais. Like others on that company's defense team, he tried hard to set a cordial - even amiable - tone.  He is another Ontario-based lawyer who prefers to speak in English.

On the plaintiffs' side, it was the always-gracious Mr. Lespérance who put questions to Mr. Howie. With these men in the lead, and with a witness who offered no resistance to questions, the day passed at a steady but relaxed clip.

(Oh yes, it might have helped that Mr. Howie was well prepared for this session -- he said he had spent 20 days with JTI's lawyers preparing for this testimony.)

Montreal is a long way from Winston Salem

Mr. Howie arrived at RJR-Macdonald in 1974, shortly after his boss Derek Crawford had also been engaged to head the new research unit. It was a period of rapid expansion - going from a staff of 4 in early 1974 to a staff of 18 by the end of the year (Exhibit 581). Within two years, Mr. Howie was supervising ten technicians (Exhibit 582), and by the end of the decade the number of staff in the R&D department was over 30 (Exhibit 584, 584A). Mr. Howie became head of the department in 1989 (Exhibit 589) but by 1995 the research staff had been reduced to 18 (Exhibit 591).

Mr. Howie explained that the work of the unit was entirely devoted to product development and process development - making better cigarettes and making cigarettes more cheaply. They did nothing on fundamental research on tobacco and disease.

By the time he arrived in Canada, Mr. Howie explained, "the feeling was the best thing we could do as a tobacco company would be to reduce tar, because reducing tar meant reducing all the specific compounds that were carcinogenic." It was possible to remove specific compounds that were especially harmful, but for commercial reasons it wasn't done: "it doesn’t make sense because you have to have a sellable product." (See R&D Strategy in Exhibits 585, 586, 587, 588).

One of the priorities of the Montreal research firm was implementing cost-savings measures. "We found that the cigarettes that were being manufactured in 1974 by Macdonald tobacco were, shall we say, not the best cigarettes that you could make. They were throwing away a lot of tobacco that should have been used." The research unit was tasked with looking for ways to eliminating waste, reduce the density of tobacco and increase the length of the filter (Exhibit 584).

Although no work on smoking and health was done in Montreal, there was a sizeable research capacity at the headquarters of its owners, RJ Reynolds. At Winston Salem "they had 400 to 500 people qualified to do those jobs."

Adding stuff to the cigarette

Mr. Howie was asked what safety evaluation was conducted on new cigarette designs. Some new components were analysed, he said, but the company relied on third-party approval. "There was a committee called the Hunter committee that put out a list of additives that were perfectly okay from a safety point of view to add to cigarettes. We strictly used the Hunter committee list.  If it wasn’t on the Hunter list, we wouldn’t use it."

He said that by the 1990s, the company had stopped using most flavourings, although other additives were used.
"There still would be menthol in menthol brand. We would be adding water – those were our 2 big additives. There were certain additives to the cigarette paper because without the additives you can't have cigarette paper, it falls apart. We would have additives in our reconstituted sheet which would be put in by the manufacturers of the reconstituted. You can't have reconstituted sheet without additives, it falls apart." Glycerol was also used. Although he had not seen any safety sheet of the impact of burned glycerol, he was not concerned because it was on the Hunter list so "from a toxicological point of view it is fine."

Manipulating nicotine levels

There was no hesitation in Mr. Howie's explanation that research was intended to increase "nicotine impact" and to reduce tar, which he said was supported by the scientific community at the time. Among the work done to "give a little more of the nicotine impact and a little bit less of the tar" was the work of the government's Delhi research station to "really push the strains of tobacco in the nicotine direction."

But RJR-Macdonald had its own research agenda to increase nicotine delivery. Mr. Howie described the work of his colleague, John Hood to add ammonia to tobacco. "Canadian Virginia flue cured tobacco is very acidic. He was trying to get the pH up .. what that does is it gives you free nicotine which theoretically is more easily absorbed through the membranes."  (Exhibit 585) (John Hood is scheduled to testify in October.)

Making cigarette smoke easier to inhale was also an area of research. The company was trying to "get less of the vapour phase which contains compounds which are known to be irritating, like acids and aldehydes," because this would make "a smoother more acceptable product for our consumers." 

Mr. Howie was obviously proud of the work that was done by his company to reduce the tar in cigarettes, boasting of the reduction of the Sales Weighted Average Tar of cigarettes manufactured by the company from 18 mg of tar per cigarette in 1975 to 9 in 1990.

So does smoking cause cancer?

When asked whether cigarette smoke contained compounds known to cause cancer, Mr. Howie comfortably answered that it did. "Lets say there are 4000 compounds in tobacco smoke ...anything from 30 to 40 to 50 are carcinogenic." But when it came to the big question of whether tobacco caused disease, he hesitated.

Q. Do you remember what the company was stating with respect to tobacco and disease?

A. I don’t remember.

Q. Did it acknowledge that tobacco caused disease?

A. I don’t know.

Q. You were head of the research Department starting in 1988?

A. Yes.

Q. As the head of the research department you can't inform the court what was the position of RJR-Macdonald on the issue of whether tobacco caused disease?

A. I repeat. I can give my position but I can't give the company position.

Justice Riordan: You don’t even know if there was a company position?

A. That’s correct.

His own view, offered somewhat after this exchange was that the statistical link did not prove causality, agreeing that "no satisfactory mechanism has been described for any disease."
Many of the exhibits presented today show that Derek Crawford (Mr. Howie's predecessor as head of R&D) was quite involved in "smoking and health". (Exhibit 212A, 212B, 593, 594, 595, 596, 597)  Mr. Crawford is now dead, and today's witness stressed that he was never engaged in this type of discussion or work. "I had my white coat on and was in the laboratory," he repeated.

Defending formaldehyde from government attack

At the end of the day, however, he revealed his own actions in trying to counter government education campaigns on the harms of smoking.  In 1998, the British Columbia government had widely distributed a poster on the chemicals found in smoke. Mr Howie was working on a response (Exhibit 599)

British Columbia Health Campaign

Q. Why did you nmeed to provide a response?
A. They had billboards scattered around B.C. showing for example formaldehyde - it would show a bottle with a frog in it and the frog was dead... 

To me it was a little bit biased. The actual levels of benzpyrene, formaldehyde etcetera  the ones that are often cited as cauasing diseases are ..so small that it really doesn’t harm anyone ...

Q. Did you deny that tobacco smoke was harmful?
A. That wasn’t the point. They were aiming these ads at specific compounds within tobacco smoke and we were addressing  - we were redressing – their comments..

Mr. Howie will continue his testimony next Monday, September 24th, and is expected to finish the following day.


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