Day 132: Dependence

If you are reading this blog, it is likely that over your lifetime you have taken part in or witnessed heated discussions about the use of the word "addiction" when talking about cigarettes and smoking.

If so, you can imagine what today's hearing was like at the Montreal tobacco trials, as lawyers for the defendant tobacco companies completed their cross examination of the plaintiffs' expert witness in addiction, Dr. Juan Negrete.

There was very little new ground gone over today. A lot of time was spent on similar points to those raised  in the initial rounds of the cross-examination last week, i.e. - tobacco is addictive only because the definition of addiction was changed, the clinical evaluation of tobacco addiction is suspect, most smokers can quit and therefore should not really be considered addictive, etc. etc.

The lawyers seeking to get Dr. Negrete's agreement to their point of view today were Sonia Bjorkquist (for Imperial Tobacco) and Guy Pratte (for JTI-Macdonald).

Dr. Negrete had little apparent patience for their questions, their framing of events or their characterization of the issues - and he frequently let his impatience show. The lawyers' also showed their impatience with the witness' answers, frequently chastising the nature of his replies. ("Wait for me to finish my question," "You did not give me an answer.")

On neither style nor content was it a pleasant day. 

A sketchy tour of dependence/addiction

Ms. Bjorquist arrived at this trial only last week, and today was her first substantive intervention. Like most of the younger lawyers on the defence teams, she is well mannered and overtly deferential. 

It was in a somewhat mannered way that she worked her way through a binder full of questions, checking items off with a purple pen as she went along, pausing on a topic seemingly to make sure she had received the answer she felt she was due from the witness.

She spent much of her time tracing the evolution of terms to describe what is commonly referred to as addiction, and the application of those concepts to tobacco or nicotine.

She started with a document that was likely written before her mother was born -- a 1950 World Health Organization report of an Exert Committee "Drugs Liable to Produce Addiction". (Exhibit 1470.7), and worked her way through a 1964 report of a similar WHO committee (Exhibit 1470.8), the U.S. Surgeon-General's Reports of 1964 (Exhibit 601-1964), the 1964 report of Health and Welfare Canada on "The Cigarette Smoking Habit" (Exhibit 20060) - and even the LeDain Commission report on on the non-medical use of drugs.

1964 US Surgeon General Report

But there was no history of science to this presentation -- nor any insights into the overlap of these varying statements of scientific consensus or the back story to some events. 

Had everyone forgotten that only a few months ago Robert Proctor had written in his expert report (Exhibit  1238): "The chapter characterizing smoking as a "habit" rather than an "addiction" in the 1964 Surgeon General's report was written by Maurice Seevers, a pharmacologist who had earlier worked as a consultant for the American Tobacco Company, makers of  Lucky Strike cigarettes. It was Seevers who managed to have the Surgeon General's Advisory Committee adopt this weaker notion of cigarette smoking as merely as a "habit" ..."

(A readable explanation of events can be found in a paper by Sara Mars and Pam Ling).

Eventually, Ms. Bjorquist worked her way up to 1988, and the Surgeon General's report on addiction.

It was only one of several ironies of the day to see the conclusions of the 1988 report flashed on the screens around the courtroom. The statements that the industry once disavowed - that nicotine was an addiction like heroine or cocaine - were being presented by the industry lawyers in their defense against a suit based on addiction. Go figure.

1988 US Surgeon General's Report

 "This was the first report from a major organization to use the term addiction," she stated - asking Dr. Negrete to agree. He struggled to communicate that the word "addiction" and "dependence" were used interchangeably in this report and that those terms were a distinction without a difference. No matter how often he said it, she appeared not to understand.

(Had his testimony been in French, as it was originally proposed, the conversation would have sounded much different - as the terms dépendance, tabagisme and nicotinisme have had a separate evolution).

As she moved through her final set of questions, I began to wonder if she perhaps had never known a smoker. "Smokers can decide to work and go outside... they can decide to quit…. to succeed in smoking a smoker has to decide they no longer want to smoke, right?"

Dr. Negrete did not respond to her repeated reference to "decisions" and "willpower", but instead added a counterpoint to her perspective. "Of all the drug dependencies, it is the one that is the most available and accessible to the consumer." ''People quit smoking every day based on their own circumstances yes. and they relapse too."

The "Health Canada" defense 

Guy Pratte (for JTI-Macdonald) moved to the front desk and began asking questions well before lunch-time, and until close to the end of the day, he sustained an unusually forceful tone in his questions to Dr. Negrete. (This is a marked contrast to his style of questionning Jack Siemiatycki only two weeks ago).

He brought the federal government back into the trial, using several documents to suggest that the federal view and research was supportive of the industry's position. 

He pointed to Health Canada using the term "habit forming" some 20 years after Dr. Negrete said it had fallen out of use. He used federal government statistics to show that smoking rates among Quebecers had fallen from 30% to 20% between 1999 and 2005? "Hundreds of thousands of people have quit smoking," the lawyer asserted. 

He cited Health Canada's health promotion messages (You will be able to stop smoking for good!) and mandatory cigarette warning messages (You can quit. We can Help) as proof that all smokers can quit. 

When asked "Is that statement true or false?" Dr. Negrete again struggled to find an appropriate answer to a slippery question. "It is true as a general rule, but doesn’t take account of many things..the goal of the statement sit so encourage people to try."

"You can quit. We can help"  --  "Isn't that another affirmation that everyone can quit? Every one can quit! That’s what Health Canada tells smokers."

"In ideal circumstances, which do not exist for everyone," replied Dr. Negrete, pointing back to the web-site reference to "the right combination of practice, determination and support."

Over the afternoon, Mr. Pratte turned to the studies that had been used as a basis of Dr. Negrete's conclusions about the prevalence of dependence among smokers, and other studies looking at short and long term smoking rates. As Mr. Potter had done last week, he pushed the witness (mostly unsuccessfully) to admit that the studies he relied on were not based on the general population, but on people who were likely to be more dependent. 

The testiness between witness and lawyers which continued throughout the day made for a tiring and tiresome exercise. By the time Philippe Trudel had the opportunity to ask his final set of questions to the witness, I think everyone wanted to go home.

Mr. Trudel asked the psychiatrist a very short round of questions. He wanted to know how important it had been to do an examination of a patient before prescribing stop-smoking medications, and whether it was necessary to be a psychiatrist in order to be able to prescribe treatment for nicotine dependence. He asked the witness to reflect on the Health Canada smoking statistics that showed a stable proportion of smokers who reported smoking a cigarette within 30 minutes of waking. (Dr. Negrete had testified this was a marker of a more severe level of dependence)

At 4:15, Dr. Negrete was thanked and invited to step down. 

The discussion of nicotine addiction is far from over, however. The industry has several defense experts lined up and ready to testify. But when?

Tomorrow, Mr. Jacques LaRivière will be in the court "for the purposes of removing the 2M" designation from documents. 

Day 130: Quantifying Addiction

See note at the end of this post for information on accessing documents

Thursday's cross-examination by Philip Morris/RBH's lawyer of the plaintiff's expert on addiction, Dr. Juan Negrete, was the last day of hearings at the Montreal Trials before a 10-day break. The trial resumes on Tuesday, April 2. 

A ceasefire in the language wars

After Wednesday's ad-hoc experiment in simultaneous interpretation, it appears no-one was happy with the results.

The first item of business this morning was a discussion on how to find a better fix for future days. (Thursday's cross-examination was conducted in French by the fully bilingual Simon Potter.)

Philippe Trudel said that sequential interpretation would be less acceptable, as it would both lengthened the time required and also "break the rhythm." The option of installing a translation booth for a day met strong resistance from Justice Riordan, who said it was a "very, very, very difficult" arrangement.

Instead of finding a suitable way for interpretation, Justice Riordan leaned on the plaintiff's to stop standing on this point of principal. He pointed out that Dr. Negrete was fully capable of testifying in English. "The problem I have is the following," he said as he gave Philippe Trudel the hairy-eyeball. "I'm looking now at Dr. Negrete's CV and all I see is University of Toronto and McGill, everywhere..."

But he did not ask the plaintiffs to make any further concessions on their language rights without offering them a symbolic victory.  "I can tell you one thing: this is the last time that I will tolerate accommodating a lawyer who cannot speak French. I'm saying it with no reproach, but this is Quebec and we have laws here and we have practices here, and I will not tolerate it again. I did it yesterday in extremis, but I won't do it again."

It was no surprise when Mr. Philippe Trudel announced a few hours later that the plaintiffs had decided that the last day of Dr. Negrete's testimony would be in English. (His hands - which seldom stopped moving throughout the day - will likely continue to speak in Spanish!).

Being addicted does not mean you can't quit.

Simon Potter's cross-examination of Dr. Negrete touched on some of the industry's positions on addiction that are beginning to sound familiar in this court. Their core message boils down to 'Smoking may meet the medical definition of addiction, but the definition is itself suspect, and in any event people can quit if they want to.'

Mr. Potter's first round of questions invited Dr. Negrete to confirm many aspects of the industry's position, such as:

* the lack of physical measures for degree of addiction. 

"If I understand, there are tests where, theoretically, measures could be taken but for most cases you take the patient at their word [on the strength of their cravings]?" 

"On their word for it, essentially."

* the ability of smokers to quit without treatment

"Do you agree that in the past few decades there are more and more smokers who have quit?" 

"This is true."
"Do you agree that the majority of these people did not come to your clinic?"
"Yes. If I may add, your honour, it is the same thing with all other forms of drug dependence."

* addiction does not mean you cannot quit

" The fact of being diagnosed as being dependent does not mean that a person cannot quit."
" No."
"In fact, I expect that you do not tell people who present themselves to your clinic: "You are unable to quit."
"No. We hope that they are not."

RBH's counsel also asked Dr. Negrete to confirm that the many Quebecers who have successfully quit smoking would have been considered 'dependent' according to the criteria he established in his report, and also that there are no reliable criteria to predict who can or cannot quit.

Simon Potter asked Dr. Negrete to confirm that in the course of his practice he would make an individual assessment for each patient, and would need to see the patient to do so. (He has asked the same question of every medical practitioner who has testified). The psychiatrists' response was a little more nuanced that some previous witnesses - he pointed out that there were occasions when he would made a medical decision without seeing a patient. When replying to request for an admission to detox, for example, he would only need to know that the person was a constant user -  "I would not need any more information to be able to say - 'yes, I will admit them for treatment.'"

If you don't like the measure - attack the yardstick

In Dr. Negrete's expert report (Exhibit 1470.1, English translation and 1470.2, English translation), the psychiatrist had concluded that "practically any person (95%) who smokes daily" is dependent on nicotine and that "more than one third (1/3) of all the people who have ever smoked tobacco any time in their lives become dependent on it."

Potter's second round of questions seemed aimed at throwing some doubt on the reliability of the studies on which Dr. Negrete had based these conclusions. (Exhibits 1470.5 and 1470.6). He metaphorically held each table of results up to the light for close examination.

Were the ages of the people in the study group representative? Did they not have other co-morbidities like schizophrenia or alcohol use? Institutionalized populations? Residential populations? Were the results comparable with other countries? Why use these results and not those from other studies? Did the ICD categorization not lend lower estimates? 

Dr. Negrete handled the questions as one might expect from someone who has passed several professional exams in his life - he calmly defended his conclusions and the methods on which the studies were based. He frequently corrected suggestions that were contained in Simon Potter's questions.

Over the afternoon, Mr. Potter put on record other estimates of lifetime prevalence for nicotine dependence. (Exhibit 30020, 30021, 30022, 30023, 30024).

Hooked on Nicotine Checklist

In the many decades that are covered by this lawsuit, there were several changes in the medical understanding of, measurement of and treatment of tobacco use and nicotine dependency.

Mr. Potter's questions ended up with one of the more recent medical frameworks for the issues -- the Hooked on Nicotine Checklist (HONC) proposed by Joseph DiFranza. (Exhibit 30027)

DiFranza's approach was used as the basis of a well-circulated study of young people's first use of tobacco. The study included Quebec youngsters, and was co-authored by a local epidemiologist, Jennifer O'loughlin (Exhibit 1471).  It was also reviewed by Justice Riordan when he was called upon to decide whether Dr. DiFranza could be a second expert witness on addiction for the plaintiffs. (He said no.)

Dr. Negrete declined Simon Potter's invitations to distance himself from the HONC approach and expressed no concern about the adoption of a single indicator for dependence in this study compared with the requirement for a greater number of criteria in the DSM-IV or ICD approaches. "If the person feels cravings, a compulsive need to smoke, if the person is upset when trying to quit smoking, if the person trying to quit has difficulty doing so, then I think that is a reflection of the process the person finds himself in."

Rothmans, Benson and Hedges draws from its stable of funded researchers.

Simon Potter may have been assisted today by RBH's own expert witness in addiction, Kieran O'Connor, whom I believe I saw in the court his week. Mr. O'Connor now works at the Institute universitaire en santé mentale de Montréal. Although his expert report (drafted, but not yet accepted as evidence) mentions that he completed his studies under Hans Eysenck, it does not mention that his early research was funded by Philip Morris and other U.S. firms.

Who's got the road-map for the rest of this trial?

The regular one-week-a-month suspension in the hearings has been stretched slightly to accommodate the Easter Holidays - but there may be an even longer break come mid-April. 

The plaintiffs will wrap up their case on  April 2, 3 and 4th.  After that, there is much that is cloaked in uncertainty. It appears likely the court will be dark for the three middle weeks of April, resuming only on April 29th for the two-day hearing on the defendants' motion to dismiss the case. (The details of their argument will not be known until the April 18th deadline for it to be communicated with the plaintiffs and the judge).

The one thing that might bring everyone back to courtroom mid-April is the desire of Justice Riordan to do some "gestion" (management) on the the industry's witness list. An updated and more annotated version of the "preliminary, partial" list provided in early January must be provided to Justice Riordan by April 9th. He has promised to help them whittle it down.

Justice Riordan has given anything but comfort to the companies with respect to their upcoming requests to knock-out some or all of the charges against them and has several times indicated his resistance to this delaying the trial in any substantive way. On Thursday he underlined this message by instructing the companies' counsel that "there is a chance that we will be starting the defendants' proof on May 6th."

The trial is suspended during a scheduled break until April 2, when it will resume for the last week in the "plaintiff's proof". During that week, two witnesses are scheduled. The cross-examination of Dr. Negrete will be completed on Wednesday, April 3 and Mr. Jacques LaRivière will testify on Thursday, April 4.

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 129: Dispatches from a new front line in the Language Wars

It would not be quite accurate to say that a language war broke out this morning in the penthouse courtroom of Montreal's "Palais de Justice" where the Montreal tobacco trials have been in session for over a year.

More true perhaps to say that the francophone plaintiffs in the case forcibly renegotiated the terms of linguistic surrender that have been gradually imposed on them in this trial by a British tobacco multinational and its Ontario-based lawyers.

The catalyst

Sonia Bjorkquist

It began today at 9:30, when Suzanne Côté (the senior Quebec-based counsel for Imperial Tobacco) rose to introduce yet another partner from Osler's Toronto office. "I told you that there was one more team member," she told Justice Riordan, before introducing Sonia Bjorkquist.

Why Imperial Tobacco's legal team needed yet another substitute on their benches was not explained, nor was any reason given why one of the 60 lawyers working at Osler's Montreal office were not available to represent the company during today's testimony by expert witness on addiction, Dr. Juan Negrete.

What was communicated was that Ms. Bjorkquist had been assigned to manage today's testimony and that she did not speak French.

The fuel

As I have previously reflected (see post from September 4, 2012) this important trial has been conducted predominantly in English. This has resulted in some handicapping to the plaintiff lawyers, most of whom have French as a mother tongue, and who are consequently required to work in their second language.

Several factors may have led to the questionable circumstance where the claims of Quebec smokers are being discussed and decided in a language most of them do not understand.

One reason is that the former company employees who were called to testify mostly came from the senior ranks, which meant that they were more likely than not to be English-speaking. (Welcome to Quebec).

Even the francophone employees who testified mostly elected to testify in English. This is their right - but the suspicion has remained that this right was exercised not out of sincere desire, but after being persuaded during lengthy pre-trial preparations with the companies' lawyers.

Other contributing factors are less unique to this case, such as the inherent gravitational pull towards a common language. All the lawyers speak English, but not all the lawyers speak French. Justice Riordan, despite his impressive eloquence in both languages, tends to default to his mother-tongue, English.

Most of the francophone lawyers on the plaintiff side have not made a fuss about the situation, although it is the type of thing that would draw stern comment in other settings. Only Maurice Regnier, the counsel for the federal government while it was in this case, stuck to his linguistic guns.

The match

The last expert witness to appear for the plaintiffs is Dr. Juan C. Negrete, a psychiatrist who trained in Argentina, taught at McGill and practiced in Montreal for several decades. This is a man who has worked in four languages (Spanish, English, French and Portuguese).

Although Dr. Negrete wrote his expert report in French, his name had been included in a list of English-speaking witnesses provided early in the trial. He had also been deposed (interviewed) in English some years back.

On this basis of these events, Imperial's counsel felt that Mr. Negrete was legally obliged to testify in English, despite the signals this morning that he (or his lawyers!) desired to do so in French.  Ms. Côté asked Justice Riordan to insist that Dr. Negrete testify in English. She offered to show the "authorities" for such a ruling.

The blood pressure on the plaintiff's side of the room began to rise.

Their view was that the witness had a Charter right to testify in the language of his choice, and that his choice of language had been communicated to the defendants well before this morning.

Why had the time used to assemble legal authorities not been spent in communicating Imperial Tobacco's concerns? Bruce Johnston wanted to know. He was almost shouting as he expressed his teams' outrage at the general situation. "This is scandalous -- to force francophone witnesses to speak in English and our francophone counsel to cross examine in their second language!"

Justice Riordan called a pause and left the courtroom.

His departure gave an opportunity for the lawyers to share their heart-felt views of each other in ways not allowed when the court is in session.  It was the first time I have observed such an exchange. There was yelling. There were threats. It wasn't pretty.

The reaction

Some time elapsed before Justice Riordan returned to settle the matter - but even then he did not immediately reveal what he had decided to do.

Instead he canvassed the parties for their position.

* Philippe Trudel referred to the fine print of the legal contracts, pointing out that it confirmed that French was the official language and that it was the right of witnesses to speak in either French or English.

* Ms. Côté was invited by the judge to provide "her best case." (She cited from a Court of Appeal ruling that I was not fast enough to identify.)

* Simon Potter (representing Philip Morris' Canadian operation) said he "didn't take a position" but offered a view which supported his Imperial Tobacco colleagues. He said his expectation had been that the testimony would be in English.

* The remaining party in the case, JTI-Macdonald, remained silent. "You are smart enough to stay out of this one, Mr. Pratte," observed the judge.

For a man caught in a no-man's land in a language war, Justice Riordan looked surprisingly at ease. He leaned back in his chair, smiled gently, and invited the plaintiffs to suggest a solution. He may have hoped they would blink, but this time they didn't suck it up. Philippe Trudel proposed that Imperial Tobacco find an interpreter, and the session be suspended until after lunch.

With no option but to make a ruling, Justice Riordan then leaned forward and made it clear that there was a limit to the accommodation that could be made to lawyers visiting from unilingual jurisdictions. "This is a situation that is singular - that a witness who wishes to testify in French is being asked not to."

He threw the responsibility back at Imperial Tobacco's law team. "This is a situation that is not supposed to happen." He added that the justice system "requires lawyers to be comfortable in French. .. one of the rules of Quebec is that an advocate has to be able to get along in French." He pointed out that there were tests of French language proficiency for lawyers graduating from bar school. (As well as other bar requirements )

The afterburn

The rest of the day unfolded with everyone locked into their positions with respect to language. 

Suzanne Côté began to provide informal translation to Ms. Bjorkquist, a task managed by a professional interpreter in the afternoon. Dr. Negrete testified in French. Justice Riordan switched back and forth between languages, as did the video screen showing documents. The other teams - Simon Potter and Guy Pratte -  were even faster on their feet to make objections lest their colleague be caught in a translation-delay. The plaintiffs resisted the temptation or pressure to revert to English.

(The companies have engaged several experts to counter Dr. Negrete's testimony, some of whom were sitting in the courtroom. No one was providing translation for them.)

The distraction of a translator combined with the residual adrenalin from the morning's altercation may be why the afternoon was more tense and chaotic than usual. 

One of the civilian casualties may have been Dr. Negrete's testimony. A few times during the day he needed reminding that his contribution was limited to providing direct answers to the questions put to him - no matter how provocative the question or the objections put to it. Surrounded by such hostility, it is very hard to remain neutral. 

Dr. Negrete's expert report

Juan C. Negrete

Juan C. Negrete retired from his post of professor of psychiatry at the Faculty of Medicine at McGill University in 2009. This was 42 years after he qualified in psychiatry at the same institution.

In the intervening years, he worked in addictions in a number of cities, and a number of positions, including for the World Health Organisation, CAMH and other important centres in addiction medicine. 

His resumé (Exhibit 1470.3) suggests a rich professional life in clinical practice, research and medical teaching. He was the founder of McGill's addiction unit, where he estimates he treated about 10,000 patients including hundreds of smokers.

His 27 page expert report (Exhibit 1470.1 - English translation also available) provides an layman's explanation of nicotine addiction and the factors that contribute to becoming addicted to smoking. 

His report reviews the scientific steps taken in accepting tobacco addiction, including changes to the mental health categories for disease (DSM) in 1964 and 1993, and later years. (The French language, in which his report is written, uses the term dependence for addiction, which is closer to the more current medical term of "substance dependence.")

In his report, he concludes: "Almost all daily smokers (95%) are dependent on tobacco to different degrees, but the problem is most severe among those who light a cigarette within 30 minutes of waking." During his testimony, he further explained how he arrived at that figure, and how bracketing it with lower confidence estimates would still result in 92% of daily smokers passing a clinical definition of dependency.

Tobacco, he concludes, recruits more addicts than do other substances. Using Canadian statistics, he finds that "more than one-third of people who have smoked cigarettes at any time in their life become dependent," and that this figure is twice as high as for other substances, like alcohol, cocaine and four times as high as for cannabis.

Commenting on the proof

Over energetic objections by the industry lawyers, Philippe Trudel offered Dr. Negrete the opportunity to reflect on some key quotes from exhibits that have been put on the trial record over the past year. 

This exercise not only allowed Mr. Trudel to remind the judge of some of the "hotter" evidence against the companies, but also resulted in Dr. Negrete's validation of some conclusions about these documents.

These documents included:

* Imperial Tobacco's study on youth, Project Plus/Minus, (Exhibit 305) which found that young people who started smoking felt they would not become addicted, but that they soon find "addiction does take place," and that their "desire to quit" is not fulfilled. Dr. Negrete pointed to a recent study of Quebec students that showed how quickly a starting smoker lost autonomy over cigarettes. (Exhibit 1471).

* Dr. Negrete was asked to comment on Philip Morris's 1997 position that nicotine had only "mild pharmacological effects" (Exhibit 981 E). The witness said he did not consider "mild" any drug which was as capable of driving a need for constant and prolonged use. 

*He was shown the same companies 1990 guidelines to staff on how to avoid the use of the word "addiction" in favour of habituation. (Exhibit 846) Dr. Negrete affirmed that within the medical community, the concept of habituation had not existed for some decades before those guidelines had been drafted (since 1964). 

*Other "hot docs" shown to Dr. Negrete included one of the famously destroyed documents -- a 1984 BAT study on nicotine receptors in rats' brains (Exhibit 58-7), and a 1972 acknowledgement by RJR that "The tobacco product is, in essence, a vehicle for the delivery of nicotine." (Exhibit 1407) 

The addiction psychiatrist was asked about some positions on tobacco use that have been adopted by the companies or their expert witnesses. He said that the claim that smoking has a benefit to smokers is a result of allostasis, that led to smokers seeming to function better when smoking. "The brain functions 'better'when an dependent person has that substance in their brain." 

Willpower was not the factor that determined successful quitting, he testified. "Motivation does not predict relapse. It is related to the severity of dependence."  He explained that the relapse rate for quitting smoking was about the same as for alcohol and cocaine in the short term, but that in the longer term, more smokers relapsed than did people who were dependent on these other substances.

At the end of the day, Philippe Trudel had finished his list of questions for this witness. Tomorrow, the witness will be cross-examined by Simon Potter. Imperial Tobacco is expected to take a break of a few days to allow for translation of his testimony before cross-examining this witness.

Dr. Negrete returns tomorrow.