Monday, 30 September 2013

On the other side of the street...

When Justice Riordan granted the industry's request for an extra week's suspension in October, no mention was made that this was the week when the companies' lawyers were finalizing presentations for two different tobacco-related hearings.

A court room at the
Ernest Cormier Building,
Montreal's Court of Appeal
The first of these took place last Friday (September 27) in the beautiful Art-Deco Ernest Cormier building that lies kitty-corner to the court-house where the Montreal Tobacco Trials are being held.

It was in one of the smaller hearing rooms of Montreal's Court of Appeal that Justice Jacques Fournier spent three hours listening to why he should - or shouldn't - allow the foreign owners of Canada's tobacco companies to appeal a lower court decision which denied them a "get out of jail free card" in the Quebec government's suit.

The second hearing began this morning and will continue through this week at Quebec's Superior Court. Four years after the tobacco companies launched a constitutional challenge to the law which underpins the Quebec government tobacco lawsuit, the arguments are finally before Justice Robert Mongeon. -  More about this hearing in tomorrow's blog!

Tenth time lucky? 

Eight years have passed since a Vancouver court was first asked whether provincial governments could include the foreign parent-companies (i.e. British American Tobacco or Philip Morris) in their lawsuits to recover the costs of treating smoking-related diseases.

In the intervening years, the same question was asked in three other provinces. As in British Columbia (2005), courts in New Brunswick (2009), Ontario (2012) and now Quebec (2013) have all ruled that foreign owners may not be excused from these lawsuits.

Higher Courts have agreed. Although Appeal Courts in British Columbia, New Brunswick and then Ontario have permitted appeals to lower court rulings, they have upheld all of them. The Supreme Court of Canada has twice declined to hear further appeals (re British Columbia and New Brunswick), and may do so again when it decides the request for a review of the Ontario ruling.

Yet despite having - count 'em - NINE court decisions against them, BAT and Japan Tobacco nonetheless are trying their luck one more time. (Philip Morris has not participated in the appeal process to decisions subsequent to their loss in the B.C. rulings).

Shades of Grey

And so it was that last Friday morning a dozen tobacco industry lawyers crowded onto the hard benches in and waited for Justice Jacques Fournier to work his way though a handful of other cases before they could make their pitch that this time it was different.

There were some faces familiar from the Blais/CQTS-Létourneau trial, and some new ones. Among the lawyers involved in both cases were JTI-Macdonald's counsel, François Grondin and Guy Pratte, as well as Imperial Tobacco's counsel Sylvana Conté and BAT's Vancouver-based lawyer Dennis Craig.

There was no fancy dress for this occasion. Instead of identical black robes, the company lawyers wore nearly identically tailored grey suits. Justice Fournier's baby-blue woolen sweater, worn under his jacket, was a striking contrast.

Getting past the first gate

The first hurdle at the Court of Appeal is to get a single judge to agree that the issue is worth a second look.

To that end, the grey-suited contingent who faced Justice Fournier from the spectator's seats behind the industry's side of the room may have been designed to send a visual message that this was an important case. (A colleague reminds me that the "wall of flesh" is a standard tobacco courtroom tactic.)

Nonetheless, their case was presented as though they knew they had an uphill battle. They acknowledged the temptation to see this as a settled issue, and energetically provided Justice Fournier with a series of reasons to think that it was worth opening the door to the appeal.

Francois Grondin, who represented Japan Tobacco, presented the first and longest presentation and also fielded most of the judge's questions.

He focused quickly on the ways in which the law was different in Quebec, and why the ruling of the Quebec lower court did not deserve to stand unchallenged. He said that Justice Sansfaçon had "taken the wrong approach" and had made serious errors in the way he interpreted provisions of Quebec's Civil Code. Of particular concern to him was what he saw as a failure to recognize that the government action should be dealt with under the Code's rules for "personal actions of a patrimonial nature" (Article 3148).

BAT's twin subsidiaries, BAT Investments and BAT Industries, each had their own representatives. Both of them offered Justice Fournier additional novel questions that the Appeal Court should weigh in.   Are we dealing with "prejudice" or "cost" and aren't these different? What if the fault is not committed in Quebec? How then can there be a prejudice in Quebec? What about subrogation? Can a voluntarily assumed obligation be a damage?. 

Perhaps they were hoping to incite the institutional vanity of the Appeal Court. They frequently stressed the unique legal framework in Quebec, and pointed to the intellectual juiciness of the new legal issues that might surface if their appeal were granted.

André Fauteux, the government lawyer who is directing Quebec's tobacco litigation efforts, was tasked with giving Justice Fournier the reasons to reject the appeal. If the other side had offered the temptation of novel legal questions, Mr. Fauteux presented the business case for not wasting court time on an issue that had been thoroughly gone over.

Similar questions about similar laws had been raised in similar courts by the same plaintiffs in different provinces, Mr. Fauteux pointed out. No more time should be spent re-hashing arguments that have been heard and dismissed elsewhere. "You don't need 3 judges to reach the same conclusion."

Around 1:00 p.m., Justice Fournier gathered his books and prepared to leave, commenting on the ease of the decision that lay before him. The extent to which that comment was ironic might be reflected in how long it takes him to make a formal decision.

Postscript: On October 4th, 2013, Justice Fournier turned down the industry's requests for leave to appeal. He said that the appeals would not likely succeed and that he had not been convinced that it was in the interests of justice to allow the appeal.

During the rest of this week, the trial of the industry's constitutional challenge to Quebec's Tobacco-related Damages and Health Care Costs Recovery Act continues in Room 16.03 of the Palais de Justice.

The Blais/CQTS-Létourneau action resumes next Monday, October 7th. 

Wednesday, 25 September 2013

How are they doing? Ahead of schedule!

A now familiar exchange between Justice Riordan and the lawyers representing the five parties to the Montreal Tobacco Trials involves progress against the schedule. "How are you doing?" asks the judge when he wants to know whether the scheduled time for a witness will be enough - or maybe too much.

Thirty sitting days into the "defence proof" and it is beginning to look like the three tobacco companies will not be needing all of the time that they so energetically argued for earlier this year, or even as much time as the 175 days Justice Riordan confined them to in his ruling last May.

We are only one-sixth of the way into the 175 day outer limit of the trial, so it's early days yet. Nonetheless, the defense portion of the trial looks like it will be taking less time than originally scheduled.

A dwindling witness list

This week we learned that several witnesses are being dropped from October's schedule.

Imperial Tobacco has decided not to recall former president, Jean Louis Mercier. Even though the plaintiffs have rejected their request for "admissions", they have decided that they do not want him to testify again.

An expert witness has also been struck off Imperial Tobacco's list. In a 2011 ruling which rejected their request to interview members of the class, Justice Riordan had permitted "a survey throughout the general population that would include Registered Members" as long as it was not "a disguised discovery." The decision to not take advantage of that opportunity was announced only last week. The suspicious part of me wonders how many waves of polling it took for them to discover the results weren't helpful!

There are now six to eight fact witnesses for Imperil Tobacco who have not yet testified. During the week of October 7th, Tony Kalhok and Ed Ricard will make return appearances. Later that month former president, Benjamin Kemball, marketer Neil Blanche and production staff Karl Hirtle and Jim Sinclair will testify. The final decision of whether Lyndon Barnes and Simon Potter will testify on the subject of document destruction has not been discussed in court, but my sense is that these two lawyers will not appear as witnesses.

A snapshot of the evolution of Imperial Tobacco's list of expert witnesses and fact witnesses drawn from their employees or consultants is shown in the table below.

Rothmans, Benson and Hedges counsel, Simon Potter, also announced the cutting of some fact witnesses from their plans. They had originally planned to call 5 witnesses, but are now calling only 1 - Mr. Steve Chapman. From a scant 6 days of testimony, they are down to only 2.

JTI-Macdonald has not yet adjusted their list of witnesses, but did express concern this week about the timing of their proof.

Their fact witnesses are scheduled for November, but it turns out that a parallel hearing has been scheduled for the week of November 11 before Justice Robert Mongeon. (The exact nature of this subsidiary dispute between JTI-Macdonald and the plaintiffs has not been made clear - "Confidential!" - but by inference it involves the adequacy of the financial records that were shared with the plaintiffs subsequent to Justice Riordan's ruling last summer.)

"I can't put boots on the ground" for both hearings, explained Kevin LaRoche, who this month has been a regular if quiet presence for JTI-Macdonald.

If Kevin LaRoche was hinting for a week's suspension in November, Justice Riordan did not give him much comfort. "You've got experts you can bring in - it's still two months away. We'll fill it up." 

The evolution of Imperial Tobacco's witness list: 

May - October 2013

 Date of prediction  
January  2013*
As currently Scheduled

Expert witnesses

Flaherty, D
Durand, C
Dixon, M
Consumer Survey Expert

Fact witnesses

Barnes, L
Blanche, N
Boswall, A
Chan, A
Crawford, P
Possible Affidavit
Duplessis, G
Hirtle, J
Kalhok, A
Kemball, B
Lalonde, M
Massey. S
Mercier, JL
Porter, A
Potter, S
Read, G
Richard, E
Sinclair, J

Total days identified
* Including cross-examination
§ Not identified on witness list
** Identified on list, but no time estimate given

The trial resumes on October 7th, with the return of one-time head of marketing for Imperial Tobacco, Anthony Kalhok. 

Thursday, 19 September 2013

Day 170: If Michael Dixon is right, a whole lot of people are wrong

This morning the plaintiffs in Montreal's Tobacco Trials resumed their cross-examination of BAT's expert witness, Michael Dixon.

Their goal seemed to be to show that Mr. Dixon's views on the benefits of low-tar cigarettes are not only inconsistent with mainstream scientific opinion, they are inconsistent with the stated positions of the defendants. When pushed, the only researchers Mr. Dixon cited to support his view were those with established connections to the tobacco industry.

Pierre Boivin began the day by filing a quick succession of scientific studies that he established mr. Dixon had been familiar with and which were written by "respected experts" but which had, nonetheless, been excluded from his review. He left unstated the implication that an expert to the court should have at least made mention of these alternative views.

Among those presented today were the 2005 conclusions of Stephen Hecht and colleagues that "there would be no decreased risk" associated with low-tar brands (Exhibit 1592), and the 2004 findings of Michael Thun and others that lung cancer cases in the 1980s were as high for those who smoked low-tar brands (Exhibit 1593).

Soon the questioning was handed over to Bruce Johnston.

Is disagreeing with the boss easier when you don't know who she is?

Imperial Tobacco Canada
President, Marie Polet
Mr. Johnston pointed out that Dixon's views were not only at odds with independent scientists, they also contradicted the testimony of his client's President and CEO, Marie Polet.

(Marie Polet and Mr. Dixon both started working for BAT in the early 1980s, but Mr. Dixon seemed entirely unfamiliar with her, and did not even know that she was the current head of Imperial Tobacco.)

Last year, Ms. Polet told this trial "There is no evidence today, Your Honour, that lower tar cigarettes or, indeed, any type of cigarettes are in any way safer than high tar cigarettes; there's absolutely no proven evidence of that at all."

She had testified that for such reasons "it would be very wrong ... to claim any health benefits."

Hearing these views today, Mr. Dixon disagreed with Ms. Polet. He said that a large number of studies ("maybe 30 to 35" in number) had shown "some risk reduction, particularly for lung cancer."

"Whom should the Court believe? You or Madame Polet?"
Mr. Dixon would not bite. "That's for Mr. Justice to answer." 

Peter N. Lee: the backstory

On more than one occasion this week, Mike Dixon has cited the work of Peter Lee and Geoffrey Kabat as support for his view "that there are proven health benefits of lower tar cigarettes."

He is not the first witness to cite this British researcher as a reliable source - but his frequent repetition of the name has finally put this controversial figure in the spotlight. This allowed Mr. Johnston to use Mr. Dixon's presence to put the relationship between BAT and Peter Lee more clearly on the record.

In a long exchange, Mr. Johnston showed Mr. Dixon examples of the private views of Mr. Lee being different than his public positions on whether smoking caused cancer. (See, for example, Exhibits 1273 and 15C.)

Mr. Lee's relationship with BAT was neither casual nor fleeting. A report on BAT-funded research which Mr. Johnston showed to Mike Dixon (Exhibit 1598r) suggests that Mr. Lee was the go-to-boy when BAT wanted a sympathetic scientific publication. About half of the 216 publications commissioned by BAT were written by this one scientist.

Although it was written after this list was prepared, the study cited by Mike Dixon to support his views on low-tar cigarettes was another BAT-commissioned work authored by Lee. (Exhibit 1599)
102 of 216 BAT-funded research studies were
authored by PN Lee. Exhibit 1598r.

The re-direct

During her second opportunity to question her witness, Ms. Glendinning's enthusiasm to get certain answers on the record earned a rebuke from Justice Riordan.  

"When a lawyer examines his or her own witness in a very leading way, it tends to undermine the credibility of the witness or the probative value of the witness' testimony. And I've found your questions very leading with this witness."  He noted that there had been no objections from the plaintiffs, but that "I should have warned you of this earlier."  (To my recollection, this is the first time in this trial that Justice Riordan has made such a comment).

Nonetheless, Ms. Glendinning was able to present Mr. Dixon with the opportunity to criticize the methodologies of those scientists who came to different conclusions than he did, and to comment disparagingly on the credibility of those appointed in 2001 to provide advice to Health Canada on low-tar cigarettes.

Perhaps the clearest illustration of the gulf between the views of Mr. Dixon and the public health researchers he disdained came with his answer to a question about the 16% of Canadian smokers who told Statistics Canada surveyors that they thought "light" and "mild" cigarettes were less harmful.

"The claim [by health groups] is that substantial numbers of these smokers believe this allegation. Is that your understanding?
"No, certainly not! 16 per cent is not a substantial number."

Sixteen per cent may not sound that high - but as a percentage of the 6 million Canadians who were smokers in 2001,  it nonetheless represented 1 million Canadians.  Not substantial!?

Justice Riordan's closing question

Despite his protests last week about more discussion about compensation, Justice Riordan returned to the core issue when he put his question to Mr. Dixon at the end of the day. (Justice Riordan seems to prepare in advance for this last round of questions, reading notes from his computer screen as he does so).

He asked Mr. Dixon to re-affirm his expertise in compensation and his definitions of full and partial compensation before asking "Is full compensation a danger that should be associated with the use of low-yield cigarettes? Is there a risk or danger associated with the use of low-yield cigarettes?"

Mr Dixon explained once again that these products were no more harmful, even if there were full compensation, and that with partial compensation "then you are seeing a reduction in exposure which, hopefully, would be reflected ultimately in a risk reduction for certain diseases."

"But it wouldn't eliminate the risk."
"It certainly wouldn't eliminate the risk, no."


The trial has now suspended for two weeks, and will resume on October 7. 

Wednesday, 18 September 2013

Day 169: Dixon the Iconoclast

It is not often in Montreal tobacco trials that the legal counsel are asked to connect-the-dots of their evidence. One of those rare moments came this morning when Justice Riordan pressed Imperial Tobacco's counsel for an explanation -  "why do I need to know about lip blocking?"

Deborah Glendinning pointed the judge to her destination. "The theory we have heard [from the plaintiffs] is that low tar cigarettes do not provide benefit because smokers compensate and as a result do not get a reduced delivery." 

"All of the evidence is to the contrary. We went through the studies and the evidence that low tar produces a benefit to the population. All of this evidence is that people do not compensate in ways that negate the benefits of low-tar." 

Simon Potter (who in recent weeks has rarely attended the trial) added his own two-bits' worth. "It is one thing for the plaintiffs to say you hid all this information and the companies to reply that the information was shared and that such harm was not done. It is another thing to say there was a consequential damage. On that point is is also necessary to answer [that no damage was incurred]."

And so it was that BAT's scientific and litigation consultant, Michael Dixon, spent the morning burnishing his version of the nature of smokers' compensation.

Picking up from the day before, he cited research that had been conducted by BAT and other tobacco companies, or by scientists they funded, which concluded:
* smokers only partially compensate when they change types of cigarettes (Exhibits 40346.211B, 20280, 20281.1)
* they do so by increasing the "puff volume" of their inhalations (Exhibit 20282, 20276)
* they do not do so by increasing the number of cigarettes they buy
* they do not do so by smoking more of each cigarette (Exhibit 20281.2, 20281.3)
* they do not do so as a result of the way the cigarette is designed (i.e. filter ventilation) (Exhibit  202852028720290, 20288)
* smokers compensation is driven by the smokers' sensory responses to the inhalation of tar and not by any requirements for nicotine (Exhibit 20292, 2029320294)

He summed it up shortly before lunch. "People [who smoke reduced-yield products] are getting a reduced exposure. .. That reduction in exposure is likely to be reflected in some reduction in disease risk. ... "There has been a benefit in population terms in reduced exposure and potentially in reduced risk as well."

(Smokers apparently do not share the view that low-tar cigarettes are less harmful. Mr. Dixon cited Health Canada funded surveys showing "the vast majority" of Canadian smokers do not think reduced-yield products are less harmful and that these cigarettes are selected because of the "light taste and less irritation in the throat region.")

The proof of the proof is in the judgement 

Despite the reluctance he had expressed earlier in the week about hearing more evidence on compensation, Justice Riordan appeared to be quite interested in Mr. Dixon's testimony and recited some of the testimony in a tone that suggested he had no difficulty accepting it.

If so, he will have taken a very different view than at least one other judge who has heard this witness on the same points. In her 2006 Final Opinion, Justice Gladys Kessler sharply rejected Mr. Dixon's views on compensation:
To rebut the testimony of Drs. Benowitz, Burns, Henningfield, and Farone regardingsmoker compensation, Defendants relied upon tobacco industry scientist Michael Dixon, Ph.D., an employee of Defendant BATCo, to testify as an expert in "human smoking behavior." Dr. Dixon testified that compensation is not complete because smokers compensate for tar not nicotine. Dr. Dixon is neither a medical doctor nor an epidemiologist; he holds a Ph.D. in respiratory physiology. Dr. Dixon further admitted that nowhere in his written direct examination did he even mention the subject of nicotine addiction. He has not published any articles on the subject of nicotine addiction, and there is nothing in the record to suggest that he has published a single peer-reviewed publication on any subject. Without any expertise in nicotine addiction, Dr. Dixon's testimony as to whether nicotine addiction drives smokers to compensate is not credible, especially when compared to the totally contrary evidence of government experts Benowitz, Burns, and Henningfield, each of whom has enormous expertise in the fields of nicotine addiction and smoking and health, have written numerous peer reviewed articles on these subjects, and have participated in the rigorous process of writing different Surgeon General’s Reports on smoking and health.
The cross examination: Where to start!?

Plaintiff lawyer Pierre Boivin returned after lunch to begin a cross examination that will continue into tomorrow.

Much of his focus this afternoon was in demonstrating that - despite Ms. Glendinning's assurances that "all of the evidence" supported the benefits of low tar - most health authorities were of the opposite view.

By showing that Mr. Dixon had neglected to include any recent independent scientific findings on this subject, he likely aimed to cast doubt on the integrity of the expert report.

We seem to have crossed the time barrier

During the first year of this trial, a curtain had been firmly drawn over events that occurred after 1998, which is when the Blais and Létourneau claims were filed.

Any attempts by the plaintiffs to introduce more recent ideas or evidence were successfully objected to by the industry lawyers on the basis that these were outside "the class period."

The trial appears to have moved on. Over the past few weeks, industry witnesses like Mr. Dixon have cited more contemporary reports which allows the plaintiffs to similarly do so.

The result is that Justice Riordan is finally being allowed to get updated on important events in the past 15 years - when it comes to low-tar cigarettes, a lot has happened since 1998. Mr. Dixon's arguments might have been more persuasive had he stayed in the 20th century!

Not all of the evidence. Not even most of the evidence. 

'All of this evidence is that people do not compensate in ways that negate the benefits of low-tar," Ms. Glendinning said this morning.

Pierre Boivin set about to disprove this view, showing the judge that leading health authorities have concluded the opposite.

Mr. Dixon's frequent repetitions that he "did not agree" with the consensus view of important research bodies made him look more like a lonely voice than a leading expert.

Misrepresenting the view of the Royal College of Physicians

Mr. Dixon had cited in his report the 1971 view of the UK Royal College of Physicians that low-tar cigarettes might be a good idea.

But he had neglected to mention that the College had changed their view in 2000, and had renounced the benefits of low yield cigarettes as smokers "derive false health reassurance from them, as may have been intended by tobacco companies." ("Nicotine Addiction in Britain" - Exhibit 1586).

In his answer to Mr. Boivin's question about why his "expert" report did not mention the change of position Mr. Dixon referred back to Monograph 13 (Exhibit 40346.221), and the "sea change" that it had created. "Up to that point, all the data were supporting low-tar," he said. Apparently he liked the old sea, and said he had cited the 30-year old position of the College as his scientific reference because he felt it was the one that was still scientifically valid. "My expert opinion is that the conclusions of Monograph 13 are not supported by the science."

(Neither Mr. Boivin or Mr. Dixon seemed to notice that Nicotine Addiction in Britain was published the year BEFORE Monograph 13.)

Ignoring other landmarks

In the spring of 2000, Canadian Health Minister, Alan Rock, established an expert advisory body to guide him on the regulation of light and mild. In its report made public early in the next year, the panel found "There is no convincing evidence of a meaningful health benefit to either individuals nor to the whole population resulting from cigarettes marketed as light or mild."Putting an End to Deception, Exhibit TBA.)

Mr. Dixon did not agree with that finding.

The U.S. Surgeon General report from 2010 (Exhibit 601-2010) similarly found that "the evidence indicates that changing cigarette designs over the last five decades, including filtered, low-tar and light variations have not reduced overall disease risk among smokers."

Mr. Dixon did not agree with that finding either.

The World Health Organization's Scientific Advisory Committee on Tobacco Product Regulation found that cigarette designs "like the low tar cigarette do not result in reductions in exposure or risk."

Mr. Dixon did not agree with that finding either.

 Maleable qualifications

In answering Mr. Boivin's questions, Mr. Dixon was less confident of his expertise in concluding the health consequences of cigarette designs than he had been earlier in the day.

Although he had an opinion on low-tar cigarettes, he did not feel qualified to agree or disagree with the Surgeon General's 2010 conclusion that "one-half of all long term smokers, particularly those who began smoking in their adolescence, will eventually die from their use of tobacco."

But he spoke with greater confidence when pointing out the methodological flaws in research papers that came to different conclusions than his own. At one point he generalized his criticism: "The problem I have with a lot of articles in tobacco control .. is that you see a bold statement and then you go back to the sources and they don't support the statement."

Tomorrow, Mr. Boivin will have an opportunity to continue his cross-examination of Mr. Dixon.