Thursday, 29 November 2012

Day 91: The 'common knowledge' defence takes a beating

There has been full house on the plaintiffs side of the courtroom this week during the testimony of historian Robert Proctor at the trial of the Quebec tobacco class action suits.

Several admirers of Mr. Proctor turned up to see their man in action (some of whom brought their copy of Golden Holocaust for signing). His fans, however, were outnumbered by visiting lawyers engaged in provincial lawsuits against the same tobacco companies. Talent scouts maybe?

It's always more fun to watch a game when the stands are full, and it was especially pleasurable this week to be surrounded by people who understand the law and 'the game' that is played out in court. Too bad they could not have left some of their insider insights behind after their short visit.

This knowledgeable audience seemed to have figured out by lunchtime yesterday (less than an hour after Mr. Potter started his cross examination) that the tobacco companies were doing themselves damage by prolonging this witnesses' time in the courtroom. It seemed to take the company lawyers another half day to figure this out.

But figure it out they did. This morning Mr. Potter announced that he had no more questions for the witness, although yesterday evening he had said he had a "number more" questions. He ceded the floor to his colleague from JTI-Macdonald, Mr. Doug Mitchell.

Like Simon Potter, Mr. Mitchell has decades of experience in tobacco cases in Canada, and has worked with many of the exhibits in this file during previous cases when his company was challenging federal laws banning tobacco advertising. Like Simon Potter, Mr. Mitchell is assigned the "bad cop" role on the defense team, and has the job of asking innuendo-laden questions and laying verbal traps.

(It is hard to describe in writing the particular contribution these lawyers bring to their questioning of this witness. The last person I knew who was able to say "Oh, I see" with the same blend of sneer, doubt and malice was my teenage sister. Surprisingly, she survived adolescence.)

I have no basis to know how these accomplished lawyers compare with industry standards, but this week they did not seem to measure up to the witness's ability to rise above the implied insults and step elegantly over any trip-wires.

Mr. Mitchell's first attempt to bolster his case was by selecting a footnote from Mr. Proctor's severed expert report (now Exhibit 1238), which was a document written by a man who until recently was a frequent visitor to this trial, Byron Rogers. His name does not appear on this document, "Policy Analysis of Tobacco Product Promotional Activity Restrictions", (Exhibit 990.26R, under reserve) because it is not customary for public servants to be named as primary authors of policy documents that are worked and reworked through government minsitries.  Nonetheless, Mr. Mitchell tried to make it sound like Mr. Proctor was a faulty researcher for not having identified the author or known the progeny of the document.

The contrast in the patient tone of Mr. Proctor's answers to the accusatory tone of the questions again served to strengthen the impression that the witness was a man you could put confidence in. He explained why the answer to Mr. Mitchell's question was irrelevant to the point in his report. (And he took advantage of the moment to provide a further short lesson on the role that industry sponsorship of cultural and sporting events played in undermining restrictions on traditional advertising.)

Mr. Mitchell tried a second time, this time with the American Historical Society's Statement on Standards of Professional Conduct. Mr. Proctor is a member of this society, and said he subscribes to its values - including those that Mr. Mitchell tried to imply were missing in his testimony and report. Mr. Mitchell implied that the witness was not respectful of "divergent points of view" and was too loose with use of material written by others for someone in a profession that practices zero tolerance of plagiarism. Mr. Proctor's calm answers made the questions sound more juvenile than they probably were.

Mr. Mitchell, who only yesterday had "two to three hours" of questions for the witness, announced after not much more time than a smoke-break that he was finished.

Likewise, Ms. Glendenning threw in the towel. Yesterday she had said that her questions for Mr. Proctor would extend beyond this week. "There are things that have come up in the evidence this morning that we're going to need some time to deal with, and so even if we get started tomorrow, we will not be finished [Thursday], in my view."  This morning she announced she had no questions for this witness.

A cross examination that had once been scheduled to last four days was over in about 3 hours. On reflection the defence team may think it was at least 2 hours too long!

Justice Brian Riordan's Crucial Question

Before allowing Bruce Johnston the opportunity to ask his witness further questions, Justice Riordan indicated he wished to speak with the witness. He spoke gingerly as he lead up to his question:  'It has come to my mind that much for the same reasons that you criticize the three expert, from my point of view as the adjudicator in this process, there is an omission in your testimony. I don’t fault you for that. I think it is a function of the questions you were asked to respond to." 

He spoke shortly about the discussion over the past days about survey results and then, unusually, began to read from his computer screen. This is his first question to a witness that has been so obviously prepared in advance. "In the decision I will have to make it would be helpful to have your view as American historiographer at what date if any can it be said that the average American knew or can reasonable be expected to know that the smoking of cigarettes caused [the four lung diseases that are the subject of one of the two class action suits]." He elaborated that he wanted to know "when the average American knew or reasonably should have known. "

Robert Proctor qualified some limitations to his answer and then provided his view that in the 70s and 80s, survey results show that the average American was "more likely than not" to answer a question that they knew about such harms. "There is a scientific consensus in the 50s, an administrative consensus in the 60s .... the third stage is a journalistic or popular consensus." He said he could not be more precise than the "70s and definitely the 80s."

Good-bye, Mr. Proctor

There was a good feeling on the plaintiffs' side of the room as Robert Proctor stepped down from the stand shortly after 10:00 a.m.  Lawyers from various government and class action suits mingled in the corridor afterwards and talked shop. For their common interests, it had been an interesting few days watching what one lawyer described as "the plaintiffs playing chess, while the defence played checkers."

There was no one but us chickens left to watch the afternoon session. A few more exhibits were put on the record (concerning the response of the industry to Health Canada's 1995 report on nicotine levels and Export A advertising). The witness schedule was given a few tweaks. Imperial Tobacco's attempt to lay a subpoena for documents on the next witness, Jeffrey Wigand, was slapped down. 

Perhaps the most noteworthy event of the afternoon was Justice Riordan putting the industry on notice that they were to present their schedule for defence by December 12th.

The trial will adjourn until December 10th. When it comes back, Jeffrey Wigand will testify for the first half of the week, after which motions to allow documents to be filed under Article 2870 will be heard. 

Wednesday, 28 November 2012

Day 90: Prof. Proctor's guest lecture continues

Before leaving the Palais de Justice yesterday evening, the lawyers defending three "big tobacco" companies in the trial of the Quebec class action suits held a prolonged and unusual corridor huddle.

With Justice Riordan's decisions on two key questions in the air, and with the plaintiffs seemingly able to change their strategy daily, they had a lot to ponder. When the trial re-opened this morning, it was clear that some midnight oil had been burned.

More certainty, but no satisfaction for the defense

The first item of business happened out of court. The plaintiffs had indeed decided to withdraw the part of Mr. Proctor's report under review, and avoid the risk of Justice Riordan ruling to exclude it. (I will never know whether I would have been able to collect on the bottle of wine that was riding on his decision).

The second item of business was a renewed attempt by Suzanne Coté (on behalf of BAT/Imperial Tobacco Canada) to persuade Justice Riordan to block Mr. Proctor from adding any testimony to the trial record that went beyond his written report. (She failed to persuade him, although he gave her the courtesy of leaving the room for a short while before saying so).

So it was not until after 10:00 a.m. that Mr. Proctor was sworn in and Bruce Johnston began his last set of questions for his star witness.

A talking tour of tobacco history

Yesterday, Mr. Johnston had shown that the constraints put on Mr. Proctor's testimony (i.e. being limited to the expert reports of the industry historians) was not a real impediment to getting a wide-ranging perspective from this witness. Today he continued to use questions technically directed at Mr. Proctor's opinions about the industry's expert historians, but actually reviewing key themes in his claims against the companies.

As Mr. Proctor gave a concise review of 60 years' of tobacco industry history, Justice Riordan listened intently. So did the visitors and fans of Mr. Proctor who filled up the seating area located behind the plaintiff's benches. (Today was the first day that lawyers suing tobacco companies outnumbered the lawyers defending tobacco companies in the public gallery.)

From the Plaza Hotel to the Royal Montreal Golf Club

The 1953 meeting of tobacco industry CEOs at New York's Plaza Hotel is a starting point for many students of tobacco industry, but Justice Riordan listened to Robert Proctor's explanation of that meeting as if he was hearing it for the first time. He heard the witness explain this as the beginning of the "formal conspiracy" and the launch of Hill and Knowlton's campaign to push back against the scientific knowledge that smoking caused lung cancer.

Almost three months have passed since the record of a similar Canadian meeting was filed in this case (Exhibit 550). It was at the Royal Montreal Golf Club in August 1963, that Carl Thomson of Hill and Knowlton and TV Hartnett ("chair of the 'we need more research' part of the conspiracy) met with Imperial Tobacco executives to discuss how they would manage the upcoming Conference on Smoking and Health convened by then Minister of Health, Judy LaMarsh. The parallels between this meeting and the the New York Plaza meeting were starkly drawn. "I view this document and statement in this document as evidence of the extension of the American conspiracy into Canada."

Spreading doubt and false beliefs

Robert Proctor explained  how the industry's fears - fear of fewer smokers, fear of falling stock values, fear of litigation - drove their decision-making. He outlined their efforts to spread doubt, and to disseminate denialist publications. He revealed that the industry had found allies in organizations like the American Medical Association, which supported the industry's "we need more  research" message in return for support to suppress medicare and medicaid.

The industry was able to influence the work of other health agencies, Mr. Proctor explained. Some of the scientists who contributed to the 1981 Surgeon General's misguided recommendation on low-tar products "later said they were sorry that they recommended low tar cigarettes because they felt they had been misled."

Not quite True
Exhibit 1237
In January 1968, the men's magazine True had carried an article titled "To smoke or not to smoke: That is still the question." (Exhibit 1237).

Robert Proctor explained this "deeply dishonest" article (which also appeared in National Enquirer) was published without the public knowing about the involvement of the tobacco industry in its development. All but one of the opinions cited in the article were from people who had worked for the tobacco industry.

Curiously this article did not appear on the list of articles assembled on behalf of the tobacco companies by historian David Flaherty. Bruce Johnston noted that it was, however, included in that historian's report prepared for the companies in 1988. The status of that document in this trial will be reviewed by the Court of Appeal in mid-December.

What's a defense counsel to do?

The companies struggled throughout the day to find an effective way of interrupting the testimony.  

Bruce Johnston continued to ask questions within the limits set for him -- "What use could a historian mandated in this file have made of this?" - but the answers from the witness vaulted over such boundaries.

The industry lawyers soon found that their objections to such answers only gave the witness a platform to expand on his replies. Nonetheless, they continued to jump up to make objections that (almost always) went nowhere, and often each company lodged separate objections. (Or, as Justice Riordan wryly put it, "jamais deux sans trois"). 

Doug Mitchell: "This is just not right. This is just asking him to adjectivize the conduct of the tobacco companies." 

Cross Examination 

Late morning, Bruce Johnston asked his last question and Simon Potter (who represents Philip Morris International's Canadian subsidiary) was the first to cross-examine Mr. Proctor.

Mr. Potter is an experienced lawyer, with long experience on the tobacco file (he has represented both Imperial Tobacco and Rothmans, Benson & Hedges). I am told he can be a very effective cross-examiner, and I presume that he knows exactly what he is doing.

But I can't figure out how the answers he drew from Mr. Proctor are helpful to his client. 

In many ways, Mr. Proctor seemed to continue under cross-examination the story that he had begun earlier in the day. He explained why the 'back story' to news was important to an historical perspective, how the industry had recruited historians, and why "common knowledge" was a defective approach to understanding the spread of information. He pointed out the importance of tobacco advertising to the understanding of the harms from smoking.

He shared stories and anecdotes to illustrate his points. He revealed that the Gallup foundation had been appalled by the use of its polling data by the tobacco industry to defend its actions. He used his class-room experiences to describe the different results that come from three different questions - is smoking harmful? - does smoking cause cancer? - are you convinced that smoking is the major cause of cancer? 

Mr. Proctor was able to elaborate on the problems he had with the industry experts, and to point out discrepancies between the secret report produced by David Flaherty for the industry in 1988 and that presented in this trial as his expert opinion. ("Mr. Flaherty says in 1988 that a historian needs to look at history of understanding. There is a big disparity in the two reports.") He criticized their exclusion of addiction and the political power of the industry. "They essentially vanish the industry. It does not appear as an historical agent in their account."

Unlike Monday, when Doug Mitchell's mud-slinging had seemed part of an unpleasant exercise, the occasionally accusatory tone of Mr. Potter's questions seemed to rebound. He tried to suggest that Mr. Proctor had made errors in fact and in judgement in his report on tobacco industry witnesses "Everyone knew but no one had proof: tobacco industry use of medical history expertise in US courts, 1990–2002", but his questions only gave Mr. Proctor the opportunity to explain further the need for transparency and accountability in humanities research, and to expound on the influence of the industry on academe.

Mr. Potter asked Mr. Proctor to reveal his payment as an expert witness, but the witness expressed no concern in providing this financial information. The room was full of very highly paid people (including Mr. Proctor!) but I think this witness was the first person to have been asked to reveal his income from participating in this trial. Given the efforts of the company lawyers to maintain confidentiality of their company's finances in this trial (and their legal struggle to not reveal their lawyers' fees even to their insurers), it seemed a little ironic.

Shortly before the usual ending time, Mr. Potter looked at his list of questions, and asked to quit a little early.

Tomorrow the cross-examination of Mr. Proctor will continue.

Tuesday, 27 November 2012

Day 89: Mr. Proctor shows he can not only walk a fine line, he can dance on one

For information on accessing documents, see note at the end of this post

I would bet that the tobacco industry lawyers felt well prepared as they entered  Montreal's Palais de Justice this morning, ready to defend their clients against the criticisms of Robert Proctor, the historian who is the first expert witness to testify at the Montreal tobacco trial.

Yesterday, they had been given the opportunity to challenge Mr. Proctor's qualifications, which they took as license to assault his reputation, mock his knowledge of Canadian geography and deride his research. From the laughter and verbal backslapping from their cafeteria table at lunch yesterday, it was clear that after a half day of courtroom pugilism, they felt they had left their marks on this witness.

Some of that confidence may have spilled over into today. At the end of the yesterday, Justice Riordan had suggested he was sympathetic to their view that Robert Proctor's mandate to review reports written by their expert witnesses did not permit him to write a counter-narrative. (Until he had ruled on the issue, the judge limited the testimony to the second part of the report, which is a more traditional academic critique.)

The industry lawyers arrived in court this morning armed not only with their confidence, but with several boxes of documents. It looked like they were ready to defend their own expert witnesses against any pre-emptive strikes from Mr. Proctor. They seemed ready also to make good on their threat of last week to pounce on any comments that Mr. Proctor made that were not substantiated by a document already on the trial record. (As Deborah Glendinning told Justice Riordan last Wednesday "We're going to be asking you to disregard any parts of his report where the documents are not properly in evidence. And, quite frankly, we expect we're going to be successful on many of these documents.")

What they had not counted on was a change in game plan on the part of the plaintiffs.

Mr. Proctor's second day 

Yesterday,  Bruce Johnston had asked for Professor Proctor to be qualified in the history of science, in the history of scientific knowledge and controversy, and the history of the cigarette and the cigarette industry. This morning, Justice Riordan mostly agreed to that qualification, but amended the last area of expertise to be  'the American cigarette industry.'

Justice Riordan's decisions had given the witness a broad qualification, but had limited his scope of comments to his views on the reports of Canadian historians David H. FlahertyRobert J. Perrins, and Jacques Lacoursière. (These gentlemen had been asked to provide reports on when awareness of health risks and addiction became part of the common knowledge of Quebecers, and the public health and government policies).

It soon became clear that Bruce Johnston was not interested in Mr. Proctor's views on what was in the industry's experts' reports, so much as he was interested in what was NOT in those reports. Mr. Proctor was given opportunity after opportunity to comment on the types of information that should have been considered by these historians, but which was not. Bruce Johnston seemed to have caught onto the perfect framework for his examination -- stay on the narrow path set by the judge, but use it to travel through some of the most interesting parts of the trial record and to provide them an historical context.

Mr. Proctor became the first witness to link exhibits from the trial to events in history. His decades of experience as a university lecturer were put to good use. Facing Justice Riordan, he concisely explained many key events in the public health catastrophe of tobacco use -- from the development of a cigarette whose smoke could be inhaled far into the lungs to the infiltration of public health authorities like the Surgeon General's reports by tobacco industry allies.

In his answers, Robert Proctor added details, context and colourful comments ("denialism", "conspiracy" "open controversy" "the cigarette is fraudulent by design") that were occasionally beyond the comfort zone of Justice Riordan and increasingly beyond the tolerance of the defence team. But he got his points across. It was the first time since the opening arguments that a narrative arch had emerged from the thousands of documents.

Doug Mitchell and Simon Potter are both highly theatrical lawyers, but today their outrage did not seem feigned. Their confidence from yesterday seemed to have evaporated. Doug Mitchell frequently got red in the face as he rose to object. "What is Mr. Proctor going to add other than his nice narrative flow and throw some more adjectives on the fire?" "He is just throwing stuff out there - he makes statements like I AM GOD!" 

But an even greater concern to the industry lawyers seemed to be that the work they had done to prepare to knock out the documents used by Mr. Proctor in his original report was for naught. Bruce Johnston had knocked them out himself by selecting an entirely different list of documents. The ones he used were already on the trial record.

The companies tried to make a 180 degree turn on their position that Proctor's sources were unusable. Last Wednesday, Deborah Glendinning had argued that Mr. Proctor could not testify on the documents he had identified in his report, as they had not been properly introduced in the trial.  "Most of the documents that he relies on are not in evidence, it's not proper procedure, it's not the way to go. ...We have a man who - right - wants to come and tell you a big long detailed historical story when none of the documents basically of import that he relies on in his report are properly in the evidence."

Today her protests went the other way. She wanted him to use those documents  "I have another objection for the record – this document was not in Mr. Proctor’s report .... We had 279 documents in his report. We are not even dealing with them." I guess there is no pleasing some people.

A highlight tour, with an expert guide

ITL's surveys on knowledge of harm
were ignored by industry expert witnesses
Exhibit 127
Each document presented to Mr. Proctor was a reminder of the history that had been neglected by the industry historians in their analysis. But it was also a tour around some of the most damaging evidence on the trial record. These included Imperial Tobacco's careful tracking of public understanding of the harms of smoking (Exhibit 127   987.41), its newsletters to employees promoting the benefits of smoking (Exhibit 126A), and its denial of health risks before parliamentary and government reviews (Exhibits 2, 729B).

Through these questions, Mr. Proctor was able to provide the context that he had written in the part of his expert report whose fate was still in the air. This fact was not lost on the industry lawyers, but it didn't seem to faze the judge.

Deborah Glendinning: All of these questions go to the first part of the report. 
Justice Riordan: We are really dealing with the moment of belief – I don’t see how this goes to that.

A late-in-the-day counter move

The defense team was so unprepared for the plaintiff's change in tactics that it took them most of the day to come up with a counter-strategy. At  3:45 p.m, Suzanne Coté asked for and received permission to present jurisprudence in support of limiting Robert Proctor's testimony to his written report. Justice Riordan agreed to hear her arguments, and dismissed Robert Proctor for the remaining half hour of the day.

But before she could present her case, Bruce Johnston revealed another tactical change. The plaintiffs' team was "evaluating the need to examine him on the first part of his report" (i.e. withdrawing the first half of the report) and was close to asking their final questions of this witness. The defense team should be ready for their cross examination tomorrow.

The court adjourned after Suzanne Coté presented her arguments for constraining expert witness testimony. A lot was in the air -- would the plaintiffs save Justice Riordan the effort of preparing a ruling on the first half of the report by their decision to withdraw it? (They promised to send word by 8:00 p.m.). If not, would Justice Riordan rule in favour or against the report?  Will there be further arguments on Suzanne Coté's argument that expert testimony cannot stray from expert reports?

And what surprises will tomorrow bring?

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.

Monday, 26 November 2012

Day 88: Industry tries hard, but fails to disqualify Robert Proctor

For information on accessing documents, see note at the end of this post

Version 1

Of the four days scheduled this week to hear the testimony of science historian, Robert Proctor, the entirety of the first day was spent in tobacco company efforts to persuade Justice Riordan to disqualify this witness.

Despite these efforts, Mr. Proctor will testify tomorrow. When the trial of the Quebec class actions against tobacco companies resumes, he will begin to present information from the second half (pp 75-107) of his expert report“A History of the Knowledge—and Ignorance—of Harms from Cigarettes in Canada, 1950-2000.”

The decision on whether he will be allowed to present the first half of his report has yet to come.

Version 2

The longer version of the day's events required a thick skin on the part of Professor Proctor, a willingness to play nasty on the part of the industry lawyers and an ability on the part of those in the unusually full observer section to sit and watch prolonged verbal attacks piled on a scholar. This is a rough sport.

The appearance of Mr. Proctor marks an important change in the trial. He is the first witness at this trial who is not a former tobacco industry employee, or otherwise a member of the 'tobacco family'. He is also the first expert witness and likely the shiniest 'star witness' the plaintiffs will produce. Mr. Proctor has a reputation, which means he has a reputation that could be destoyed.

The significance of the day was underscored by the presence in the audience of lawyers from litigation efforts underway in other jurisdictions, as well as an expanded cheering section for both plaintiffs and litigants.

If at first you don't succeed ....

This was the industry's second try at keeping Mr. Proctor out of the trial. The first time was argued in the early fall of 2011, many months before the open trial began. From his decision, it is clear that Justice Riordan was asked last year to consider many of the issues raised today (bias, foreignness, out of area of expertise, etc). Despite losing this first attempt to strike down Mr. Proctor's report, and despite failing to persuade the Court of Appeal to reconsider the ruling, the industry gave it an energetic second attempt again today.

The cart before the horse

One of the many peculiar things about this trial is the back-to-front way in which evidence is presented. One example of this is the fact that Mr. Proctor's mandate as an expert witness was to rebut the testimony of three historians hired by the tobacco companies:  David H. FlahertyRobert J. Perrins, and Jacques Lacoursière. Yet the contribution of those witnesses is some months off. 

Introducing Mr. Proctor

Robert Proctor
Immediately after the witness was sworn in, Mr. Bruce Johnston introduced  Professor Proctor by going through his curriculum vitae and highlighting his  many accomplishments.

Mr. Proctor explained that he decided to become a historian of science as it allowed him to not narrow his field of research when doing his graduate studies, but instead to retain broad interests. 

These varied interests are reflected in the books he has published in his 25 year career as a university-based researcher. (He is currently a professor at Stanford University in California). The titles are familiar to even casual followers of arts and letters - Racial Hygiene:  Medicine Under the Nazis; Value-Free Science? Purity and Power in Modern Knowledge; Cancer Wars:  How Politics Shapes What We Know and Don't Know About Cancer; and  The Nazi War on Cancer. 

In the past decade, said Mr. Proctor, more than half of his work had addressed tobacco use and tobacco companies. Although his most recent book, Golden Holocaust:  Origins of the Cigarette Catastrophe and the Case for Abolition, was published last year, he was no Johnny-come-lately to the topic of tobacco. Although he had actively worked on the book for a decade, he said it reflected the "sorts of things I had been thinking about for two decades." 

[If you have the patience for a long download, you can access an electronic copy of Golden Holocaust here]

Mr. Proctor is not only an experienced researcher, he is a seasoned trial witness. He said he had testified about tobacco on 30 occasions, and had never failed to be qualified as an expert witness. 

Doug Mitchell's mud-throwing arm

I have observed earlier in this trial that the lawyers working for Japan Tobacco (a team seemingly headed by Guy Pratte from Borden Ladner Gervais) have been the most cordial and constructive among the defendants' legal teams. Today, JTI-Macdonald seemed to have issued a cease-fire in their charm offensive. 

Lawyers from JTI's other firm, Irving Mitchell Kalichman, moved to the front desk. It's not a pretty job, asking questions designed to make experts look inexpert and Mr. Doug Mitchell, who lead the industries' charge, did nothing to make it look any prettier than it is.

There was something schoolyard-like about the style with which Mr. Mitchell worked through a long list of items where he thought Mr. Proctor was vulnerable. Nonetheless, the calm and steady way in which Mr. Proctor replied to the lawyers' high-pitched and overly-modulated insinuations often made the witness sound like the one in control.

What we learned from Mr. Mitchell's questions was that Mr. Proctor was not an expert in many areas related to tobacco use (addiction, marketing, psychology, etc). We also learned that Mr. Proctor is not ashamed of having an "evidence-based bias" or of believing that "it is wrong for an industry to produce a product that kills millions of people."

Mr. Mitchell characterized Mr. Proctor  - "from California" - as a man with no authority to speak of events in Canada. He asked questions that successfully showed the witness' poor command of Canadian or Quebec political history. He also found flaws in the expert report, including referencing and spelling errors.   He showed that Mr. Proctor did not have a perfect memory of the report he wrote 18 months ago and was unable to rhyme off examples of specific events to support some of his statements.

Simon Potter was only one other industry lawyer who participated in the exercise of disqualifying Mr. Proctor. Like Mr. Mitchell, he is a remnant of the old guard of industry lawyers who fought the federal government on advertising restrictions in the 1980s and 1990s. Mr. Potter went over much of the same ground Mr. Mitchell had covered, emphasizing the documents that Mr. Proctor had not accessed (i.e. from government collections) and suggesting that his report, produced in two months, was a rushed job.

Mr. Proctor's resilience to mud

Justice Riordan gave the companies a wide scope in their attempts to discredit Mr. Proctor. While essentially agreeing with one of Mr. Johnston's very few objections that the questions had more to do with the report than the witness' qualifications, he nonetheless allowed the questions to continue. 

Mr. Proctor took the opportunity of hostile questions to put his own views more clearly on the record. Among these were his concerns with the improper historical approach taken by the companies' experts. Assembling news stories about tobacco and health and not giving those clipping collections any historical context was not good historical practice, he said. "You cannot take what someone is told as evidence of what they knew. He invited comparison of trying to measure the Russian experience under communism. "Look how often they were told communism was good" yet it would be wrong to conclude from press coverage in Pravda that the Russian people actually believed that communism was good.

He told the court that the frequent reporting of tobacco and health stories over past decades does not illustrate that the dangers were will known, but rather the opposite. Newspapers don’t often write stories about not "sticking a fork in your eye" because the dangers of doing so are well established, he pointed out "One reason that newspapers kept publishing stories about tobacco use was because the harms were NOT well known." 

He similarly pointed to the importance of the numerous surveys conducted by the industry to establish the actual level of awareness of the harms of smoking. Public knowledge was heterogenous - including "heterogeneity by person, topic, age and by many other things as well." 

Arguments and legal precedents

At 3:00 p.m., Mr. Proctor stepped down from the witness stand and moved to a seat that was located just behind the "bar" that divides lawyers from non-lawyers and was a little ahead of the walkway that demarcates observers from official participants in the trial.  This half-in/half-out position seemed to reflect the limbo of Mr. Proctor's status as he watched the lawyers argue for and against his qualifications. 

Bruce Johnston pointed out that it was "obvious that he is extremely qualified – perhaps uniquely qualified – to perform mandate given to him." He pointed out that the mandate given to Mr. Proctor was not to be an expert in Quebec law or history, but "to look at the work of three historians hired by the defendants in this case and to review that work on the basis of whether or not it was proper historical scholarly work." 

And as for the industry's complaints that the report had been done in only two months "[David] Flaherty had 20 years and never looked at documents."

Justice Riordan asked Mr. Johnston to respond to his cautions from last week,  "I feel he has written two reports – one is the mandate, and the other is something quite different." 

Bruce Johnston explained that the testimony of the industry witnesses provided a connection between the two parts. These historians "are part of a method to try to shutter historians to let them arrive at the conclusions [the industry wants]. They allow themselves to have shutters put on them." If they had consulted the industry documents and assembled a story such as that in the first part of the report "they would have found their own historicity."

Doug Mitchell came armed with a number of court-rulings, recent and not-so recent, that spoke to the value of expert witnesses and the rules that should guide their role in court. He acknowledged that it was unusual to disqualify a witness at this point, but asked that Justice Riordan either do that or as him "to go back and write a report within the scope of his expertise."

Mr. Potter stressed Mr. Proctor's 'bias' as a reason to disqualify him. The court was no place, he said "for people who clothe themselves as historians and allow themselves to talk about anything, or a place for rant and contentious diatribe..."

Justice Riordan's ambivalence?

Justice Riordan hinted at some of his concerns before calling a brief recess at the end of the day. It was possible to have issues with the expert report, but not necessarily with the expert witness, he said. "He is here on a particular role with a limited right and capacity to testify." Whether or not he was morally right, said the judge, was not relevant to the job at hand.

When Justice Riordan returned slightly before 5:00 p.m., he was carrying and reading a document that  looked like it could have been his ruling from last year. His decision was briefly stated and incomplete:

"The second part of the report is admissible. We have allowed testimony to be given on it as well as cross examination – I haven’t changed my mind on what I said on that point.  As for the first portion, back in 2011 I said that I needed to have more information on the 'voir dire.' I would like to think about it a bit."

He instructed the lawyers to prepare their questions to start with the second portion of the expert report and that he would give his decision on the first part later.

Robert Proctor will be on the stand again tomorrow


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.

Thursday, 22 November 2012

Day 87: From Zero to Two Hundred in Sixty Minutes

Today closed out one of the most efficient weeks in the joint Blais-CQTS and Letourneau tobacco class actions. In only half the number of usual sitting hours, the trial seemed to have covered more ground than any other week.

One speed record for the trial was set on Monday, when John Barnett, the president of Philip Morris International's Canadian subsidiary, provided the plaintiffs with key evidence in less than a day. (His unexpected candour resulted in the cancellation of Tuesday's scheduled court day).

A second speed record was set today, when a new method for introducing evidence was piloted. Over 200 exhibits were approved for filing in under an hour. This is a feat that would previously have taken a day or more of court time.

Knocking months off the trial

A speedy method was certainly needed - and soon. The plaintiffs are now at the stage of tidying up the loose ends of putting documents cited by their expert witnesses on the trial record. They are also adding other documents which, presumably, will be relied on in their later arguments. From the comments about the lists of documents that continue to be exchanged with the defendants, it would appear that there are hundreds of plaintiff exhibits yet to be introduced. Yet there are very few available days on the schedule before the plaintiffs are supposed to wind-up the presentation of their case in early March.

Another compelling reason for an efficient method was made clear last week, when Justice Riordan elicited from the tobacco companies that they intend to put some 20,000 documents on the trial record, of which 11,000 were newspaper clippings. At its speediest, the conventional method required about two minutes per document, suggesting more than 9 trial months would be required just to file defense exhibits.

The "Riordan" method

Last week Justice Riordan suggested that proposed exhibits be given pre-assigned exhibit numbers, and that these documents be exchanged to allow the opportunity for objections or concerns to be identified.

Today his suggested method was test-driven. Ms. Gabrielle Gagné presented a CD with a covering list of some 240 documents already reviewed by the companies' lawyers. Justice Riordan listened to and ruled individually on the small number of objections that were over and above the "standing objections" to documents filed under the scope of his May 2nd ruling. No one seemed too upset at the prospect of holes in the sequencing of exhibit numbers that occurs when he agrees with an objection and the document is not allowed into the trial record (as happened a handful of times today).

It took an hour to work out the kinks in this new approach, and another hour to work through all the objections. By lunch-time, the court adjourned for the weekend with over 200 new exhibits ready to be filed.

So close and yet so far

The down-side to this efficiency is that documents are identified tantalizingly on the screens in the courtroom, but not available for some days later.  The marketing-related documents that were reviewed last week and provisionally given exhibit numbers (989.1 to 989.77) were filed in court today. Hopefully these will soon be available on the plaintiffs' database. Those discussed today look similarly delicious...

From Monday through Thursday next week is the first round of the much anticipated testimony of Robert Proctor.  

Wednesday, 21 November 2012

Day 86: Twenty-Eight Seventy (2870)

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

More surprises were in store today at the trial of the Quebec class action suits against the three Canadian branches of the multinational tobacco companies BAT, Philip Morris International and Japan Tobacco.

The witness who had long been scheduled to testify at the trial, David Sweanor, was no where to be seen. His appearance was cancelled yesterday, with no explanation made public.

The unexpected hole in the trial schedule became an opportunity for a case management discussion that took the entire morning. This allowed for a continued discussion on issues raised last week, but not resolved. These included Justice Riordan's still unsuccessful attempts to get signals from the tobacco companies on how they intended to present their defence, as well as the plaintiff's attempts to cross all the 't's and dot all the 'i's in the next three months of the trial.

The numbers game

As a young child, I used to listen to my mother and grandmother playing the cardgame cribbage. I heard their recitation of the mysterious numbers  - "fifteen two," "fifteen four," "fifteen six," -  as a clear signal of their elevated status. Only by knowing what these numbers meant could I ever be let in on the game! But how to find out?

I never really learned to play cribbage, but I have not forgotten the allure of the chanting of mysterious numbers. Over the past months I have frequently experienced the same bewildered wonderment when numbers with clearly-special meaning are tossed around the court room.

One number much bandied this month has been 2870 (pronounced by Quebec lawyers as vingt-huit soixante-dix, and by come-from-aways as twenty-eight seventy). The number refers to the section of Quebec's Civil Code that establishes rules for admitting unconventional evidence into trial.
2870. A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.
The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.
The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.
This provision of the code took on an even greater importance this month as Justice Riordan persuaded the plaintiffs to abandon their plans to introduce documents from the Legacy site through a witness from that library. Instead of trying to set a precedent, the judge had recommended, it was better to take a "catholic"  approach. When André Lespérance informed the court last week that they would instead use the provisions of 2870 for these documents (but bene esse), Justice Riordan smiled broadly.

Much more on this process in this trial will be revealed. Four days of hearings in December (the 13, 14, 19, 20) have been assigned to looking at the use of this provision to put additional documents (including 160 documents from Legacy) onto the trial record.

As Justice Riordan put it today, this route is "not ideal, but is not illegal."

A ruling that hints that 2870 might be accommodating?

Last Monday, Justice Riordan had been asked to rule on whether David Schechter's testimony at a previous trial could be admitted to this process under - you've got it - article 2870. Last Wednesday, he had ruled that it could, and this week he issued his reasons.

To this untutored eye (any occupation with 2870 rules is way too intimidating!), the ruling seems to encourage the view that a lot of information could come in through this process. Justice Riordan did not buy the arguments proposed by Imperial Tobacco that a necessity test should apply. He ruled that Mr. Schechter's testimony was both admissable and reliable. (He even offered another section of the Code that could have been used to justify admitting this testimony).

Justice Riordan's ruling also criticized Imperial Tobacco's argument for having "nearly led [the court] into error" Today, Suzanne Coté politely but firmly defended the argument prepared by her colleagues. She elicited a respectful acknowledgement from Justice Riordan that his words may have gone further than he intended.

Preparing for Robert Proctor - never too early to throw a little mud

Again today, tobacco industry lawyers did a little chest pounding about the appearance next week of noted science historian, Robert Proctor.

Doug Mitchell was blunt. "We have a problem with Mr. Proctor testifying at all. That will be debated."  Pressed by Justice Riordan, he outlined some of the arguments that the companies will be forwarding on Monday to try to disqualify Mr. Proctor and his testimony. These will be presented during the 'voir dire' that will precede his testimony. The companies say they need a whole day to challenge Mr. Proctor's qualifications.

Mr. Mitchell didn't look the least uncomfortable as he took a few early swings at Mr. Proctor's character. “I bet he is going to say he is an expert in a lot of things I would not think he is an expert in. He’s a prolific man. He’s been on [CBC Radio's programme] Q! Will he recognize he’s not an expert in law, despite the fact that he makes several legal conclusions? ... We’ll see!" 

Simon Potter used a similarly sneering tone to express his concern that "we have a man who wants to come and tell you a big long detailed story where none of the documents are properly in the evidence."

Justice Riordan said he had read Mr. Proctor's expert report twice, and expressed sympathy for some of the industry's concerns, including the scope of Mr. Proctor's report and the evidentiary support for his conclusions. He noted that latter part of the report was more focused on his mandate to "evaluate and comment on three expert reports submitted by historians hired by Canadian tobacco manufacturers" David H. Flaherty, Robert J. Perrins, and Jacques Lacoursière), but that the opening section "goes well beyond"  context setting for this mandate.

Bruce Johnston offered his assurance that the testimony would not stray beyond the mandate, and that the historical context was key to the witness' conclusions.

For those missing Don Cherry's hyperbole and the pugilism of Hockey Night in Canada, next Monday's attempt by Simon Potter, Deborah Glendinning and Doug Mitchell to take down Robert Proctor may be the next best thing. Seating is free.

Bigger Battles Ahead

Last week, Deborah Glendinning had signalled that ITL wanted this case to be thrown out without the company's having to present any defense. Today, she repeated that there would be "very significant motions to have part of the allegations dismissed for lack of proof" and that there were "a whole series of motions that we are in the process of preparing and considering."  If nothing else, the companies want more time. "We want some clarity before we begin our defense. Will be asking for delay before we present that defense."

Justice Riordan did not look impressed. He said wryly that he "was looking forward to reading" the motions, but that they were not customary and he would "have to be convinced." He repeated his request from last week that Imperial Tobacco start its defense by presenting its expert witnesses. After Deborah Glendinning informed him this was not their intent, he warned "I want to see the motions as soon as possible. Don’t assume that there will be a break between the two sets of proof." 

A bigger bowl from which to cherry-pick. 

The Montreal Gazette reported this week that the number of registered class members had reached 8,000. Last year, when the number was only 2,000, Justice Riordan had required the plaintiffs to provide the names and addresses of these class members to the tobacco companies. Last month, the Court of Appeal upheld his provisions that the companies could not contact those individuals nor access their medical records.

Today, the companies asked Justice Riordan to require the additional names to be provided and that they be allowed to use the larger list to draw potential witnesses. George Hendy presented the request: "You denied access to the medical files, just as the Court of Appeals did. You said that the survey expert had to be careful. That hasn’t change. All we know now is that there are 8000 and not 2000... The more information that we have, that you already said was compellable, then the better off we are going to be in preparing our case."

Justice Riordan agreed, and gave the plaintiffs a week to provide the additional names. But he emphasized the constraints on the use of that information, and pressed the companies to say when they would be issuing subpoenas. Again, they gave no clues as to their plans, except to say that they were "at least a year away" from calling these witnesses.

Will that be separate bills?

Justice Riordan repeated his request to the companies to provide him with historic market share information, only to be told that this was "controversial" and "very complex." After ITL and Rothmans had essentially rejected this request, the judge reminded them "If there is a finding of liability, then one of the aspects I am going to have to look at is how to assign it. One of the ways to look at it would be to look at market share. It seems to me to base it on tailor made cigarettes and not sticks."

Even at this, the companies volunteered only that there would be "factual and legal arguments" to establishing market shares. Justice Riordan reminded them that "If I can't get an agreement from you, it will be a gap in the proof and I will have to decide how to deal with it," and that his preferred approach was to get the information from the companies.

(As Justice Riordan talked about basing any damages on market share of tailored cigarettes, I wondered if Deborah Glendinning now regrets getting Justice Riordan to exclude fine-cut from the case, as without fine-cut her client has a much bigger share of the market).

Lots more to come!

A few more adjustments to the schedule were agreed to. Pending confirmation, the road ahead is:

November 26 - 29: Expert witness Robert Proctor (4 days)
December 10 - 13:  Fact witness Jeffrey Wigand, (2-3 days) and discussion of 2780 documents
December 17 - 20:  Expert witness Robert Proctor (2-3 days) and discussion of 2780 documents
January 14 - 17:  Fact witness P. Cadieux (2 days) and expert witness Christian Bourque (2 days)
January 21 - 24:  Expert witness Richard Pollay (2 days)
February 4 - 7:  Expert witnesses Alain Desjardins (2 days) and André Castonguay (2 days)
February 11 - 14:  Expert witness Louis Guertin (2 days) and fact witness Frank Lane (2 days)
February 18-21: Expert witness Jack Siemiatycki (4 days)
March 4 - 7: Juan Negrete (4 days)
(During the interim weeks not identified in this list, the court will not be sitting.)

Tomorrow there will be no witnesses. The time will be used to produce more documents on the trial record.


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.
 

Monday, 19 November 2012

Day 85: Mr. Barnett's surprising testimony

For information on accessing documents, see note at the end of this post

John Barnett is possibly the last of a long parade of tobacco industry witnesses to be called by the plaintiffs to testify at the Montreal tobacco class actions lawsuits. Like the last float on a good Santa Claus parade, the 14 year president of Rothmans, Benson and Hedges today tossed goodies to the crowd (or at least to those standing on the plaintiff's side).

The day started with no indication that there would be anything different than the usual practiced responses of experienced tobacco executives to questions that had been asked dozens of times before. No special measures had been taken by either side, either in the form of notifying the media (as the plaintiffs had done with other company presidents) and there were fewer flashy legal handlers than Philip Morris had brought in for other witnesses.

Soon there were reasons to wonder if this witness had been under- or over- estimated. His testimony was so rich that by early afternoon both sides had decided the risks of continued testimony outweighed the benefits. Mr. Barnett's appearance at the trial ended a day and a half earlier than expected and tomorrow's session has been cancelled.  

Introducing Mr. Barnett

John Barnett
Last week I thought it was the tobacco companies that were working on new courtroom tactics, but today the plaintiffs showed that they too could switch-up their approach when they brought Mr. Kugler in to lead the questions.

Mr. Kugler is one of the most seasoned litigators on the plaintiffs side, but is an uncommon presence in the court. His very slow, very dry and very authoritative style still feels somewhat fresh - even after 8 months of trial.

Whereas other witnesses have been given open-ended questions to present their background or involvement in the company, Mr. Barnett was given little option but to say "yes" or "no" to a long series of closed-questions. Nor did Mr. Kruger give Mr. Potter many opportunities to intervene to protect his witness and client.

(Mr. Barnett was not given a chance to say much about himself. There is more about the background of this chartered accountant and beer-and-cigarette career man on the web-site of Mobilicity than was provided to the court.)

The slow questions seemed to lull Mr. Barnett into a rhythm of providing simple "yes/no" answers. This is one witness who failed to escape to the blurry middle ground which has attracted so many other industry executives.

Go ahead. Google yourself. You never know what you might find out. 

During last month's testimony of Patrick Fennell, Mr. Kugler had introduced the RBH web-page from the web-site of the parent company, Philip Morris International. He had asked the former president about the company's current admissions that "All tobacco products, including cigarettes, are dangerous and addictive," and "There is overwhelming medical and scientific evidence that smoking causes lung cancer, heart disease, emphysema, and other serious diseases."  (A print out was introduced as Exhibit 834)

Mr. Potter, seemingly surprised by the document at the time, had tried to distinguish that the website belonged to the parent company, Philip Morris International (which is not a party to this lawsuit.) and not to Rothmans, Benson and Hedges. 

He tried again today to ward off the threats in this web-site by qualifying it as  "a Phillip Morris International website," but Mr. Barnett undercut his lawyer by accepting the information on the site as if it spoke for the company. He did this even though the web-site was a recent surprise to him.

I never saw this page until a week ago preparing for this testimony,"  he said. "I went to Google, put in 'Rothmans, Benson and Hedges' and this page came up."

"Did it surprise you that there was website that contained statements on smoking and health that were never provided to you?"
"I was surprised at the content, but not surprised that it was not submitted to me." 
"You were not surprised!?'"
"No. We are a wholly owned affiliate of Philip Morris International." 

"When you saw this web-site, did you attempt to find out who was responsible?"
"No I did not. I read the content. I know with respect to issues, what is stated here is consistent with what is on the PMI website. I just didn’t know we had the Canadian section." 

What's a president to do? Say the parent company is wrong?

Mr. Barnett did not get more cautious in his answers. Mr. Potter frequently glared at his desk as his client left a trail of damaging replies about what the company knew, when it knew it, and what it told its customers.
"The website states 'tobacco products are dangerous and addictive' – would you agree with me that this is the first time that this statement appeared on any RBH web-site?"
"Yes."

"It says on your website that cigarettes are dangerous. Do you have any reasons to believe that cigarettes are less dangerous or less addictive than they were in the 1960s?"
"I don’t know a basis to say that they were less dangerous or less addictive than they were in the 60s, no." 

"It says 'there is overwhelming medical and scientific evidence that smoking cause lung cancer.' Do you have any reason to believe that smoking which causes lung cancer today did not cause lung cancer in the 1960s?
"No, I don't."

"Would your answer be the same with respect to the overwhelming medial and scientific evidence that smoking causes heart disease, emphysema and other serious diseases? Would it have been the same in the 60s?"
"Yes."

"Can you refer the court to a single statement that you made or any document that you have seen emanating from RBH that states categorically that there is overwhelming medical and scientific evidence that smoking causes lung cancer?'"
"The only one that comes to mind - and I became aware preparing for this testimony – is an ad that Rothmans published on some Cancer Congress – It was done by Patrick O’Neil-Dunne before the 60s."

"Apart from that, has there ever been a statement from RBH [to this effect]?
"Not to my knowledge. When I joined the company it made the decision that it was best to let Health Canada be the primary communicator and reinforceer of knowledge about the hazards of smoking – rather than being accused of confusing the issue, we left the responsibility to that competent authority."

"What about with heart disease, would it be the same answer?" 
"Yes."

"Emphysema? - the same answer?" 
"Yes."

"And the same answer with respect to other serious diseases?" 
"Yes."

"To your knowledge, there has not been a change or evolution in the state of knowledge that smoking causes lung cancer since you joined in 1998?"
"No."

"Nor any change in the state of knowledge that smoking causes heart diseases?" 
"No."

"Nor that it cause emphysema?" 
"No."

"Nor that it causes other serious diseases?" 
"No." ...

"Am I to understand that RBH made the decision to not make the statement identifying the precise health risks?"
"That’s correct. We made no statement other than when we were required to."

We care about youth smoking, but not enough to talk about it

Mr. Barnett was asked pointed questions about his company's policies and actions with respect to youth smoking. He tried to talk up the CTMC contribution of $18 million over 15 years to convince 24,000 retailers to card smokers, but Mr. Kugler focused instead on what more the company could have done, and why it had not entered into youth smoking prevention programs as other Philip Morris International companies have

Mr. Barnett testified that the board of RBH had never discussed ways to convince youth to not smoke, and had not taken note of programs run by Philip Morris in other countries. No smoking and health issues were discussed by the RBH board, he said.

Hammering in some few last nails

After an early morning break, Mr. Kugler had a few more high-powered questions for the witness.  

"Do you accept the statement that in the RBH family there is no such thing as a safer cigarette?"
"Yes I do."

"Does your your company advocate smoking in moderation?" 
"It makes no difference."

Mr. Barnett confirmed that the company did not conduct any smoking and health research (its 'world class' laboratory is used only to test its products against regulatory requirements). Nor did Mr. Barnett ever ask for any assistance on smoking and health research from the parent companies that had capacity to conduct such research. (Mr. Fennell, a previous RBH president, had made similar admissions). 

Mazel Tov

Only two hours had passed when Mr. Kugler announced he had no more questions for the witness. "Mazel Tov," said Justice Riordan. Ever conscious of the court schedule, the judge may have been thinking only of the efficiency of the questioning. From the back of the room it seemed like "congratulations" were deserved on other counts too.

The cross examination

Mr. Potter was visibly upset that the cross examination he had anticipated for Tuesday was suddenly required before Monday's lunch. He huffed about the time spent in preparing for documents that were not used. But he was again undermined by his client who laughingly agreed with Justice Riordan than rather than being upset, he was "delighted" at the prospect of being released early.

In questions before and after the lunch break, Mr. Potter asked Mr. Barnett to talk about the steady reduction in smoking over the past few decades, and to attribute the decline to an increase in quitting, a decline in starting and a reduction in the amount of cigarettes that smokers consume. He prompted the witness to speak of the reduction in sales-weighted tar levels, as well as the company's Tobacco Act Compliance Committee (TACC) through which marketing measures are assessed against legal and voluntary marketing restrictions.

The horse, however, was clearly out of the barn and didn't seem ready to go back in. Even in cross examination, Mr. Barnett continued to provide very different responses than he had during his depositions on 29 May 200830 May 2008 and 29 January 2009.

Soon Mr. Barnett was thanked for his time and sent home to Rosedale.

A breach of a common law?

The Quebec civil code does not seem to include the the provisions of Parkinson's law that "work expands so as to fill the time available."  Mr. Barnett's early departure left a gap in the schedule tomorrow which is not to be used to file documents or conduct other trial business. The court will not sit tomorrow (Tuesday).

Barring further surprises, Mr. David Sweanor will testify on Wednesday.

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.

Thursday, 15 November 2012

Day 84: Colonel Mustard in the Parlour with the Maryland Extract

Some people can read detective mystery novels without skipping to the end to find out "who dunnit" before enjoying the unveiling of the plot line.

Not being one of that tribe, I have been impatient  over the past few months with the many clues dropped by Philippe Trudel and his colleagues about the addition of flavourants or nicotine to Canadian cigarettes. Why would they ask virtually every witness at the Montreal tobacco trials to validate the common understanding that Canadian cigarettes, unlike their US counterparts, were 'additive-free'? Why give them all the opportunity to boast that while there may have been experiments with nicotine-fortified cigarettes, such products were never put on the marketplace?

These questions were leading somewhere, but as far as I knew, it was a dead end. The prevailing view has been that the nicotine levels in Canadian cigarettes were controlled through the selection of tobaccos and by the way the cigarette was designed to burn.

The mystery began to be revealed on Thursday when Mr. Pierre LeBlond was invited back to finish a testimony begun at the end of August. He is a chemical engineer who worked at Imperial Tobacco for almost 30 years and was once custodian of the company's top secret code book of flavours.

True to the mystery genre, the plot was revealed in a conversation that took place before the entire cast of characters - or at least those that remained after the federal government was airlifted out of the trial by the Court of Appeal the day before.

It may not have looked like an Agatha Christie drawing room, but it sure felt like one.

The case of the nicotine extract

Philippe Trudel began by exposing flaws in Mr. Leblond's previous testimony. In August, he had denied that he knew why phosphates or citrates were used in cigarette papers and did not know what pH of smoke was - an amazing gap in knowledge for someone with a 30 year career in cigarette design. Asked similar questions again Thursday, he suddenly did know the answer to these questions. Well, well, well. Nicely softened up.

Mr. Trudel then began a line of questions that has been asked of no other witness. He wanted to know about the physical layout of the Montreal factory where both fine-cut and tailor made cigarettes were manufactured.

How was the waste product collected in the Montreal factory? (It was sucked out through pneumatic piping throughout the factories)

What happened to the waste product? (It was sent off to be manufactured into reconstituted tobacco).

How much of this reconstituted tobacco made from waste tobacco was used in cigarettes? (oops! Mr. Leblond "stood corrected." His previous statement that it was only 3-5% was contradicted by evidence that it was twice as high). 

Mr. Trudel then began introducing documents whose secrets will likely never be fully revealed to the public, except through the admissions of Mr. Leblond. These are the "secret recipes" of Imperial Tobacco cigarettes that are on the court record, but protected behind confidential and redacted status. 

What was this LAC tobacco used in Players Special Blend? (Maryland tobacco)

Was Maryland tobacco treated with casing? (Mr. Leblond didn't think so, until shown a 1994 document - Exhibit 995CONF - that "refreshed his memory" that it had been. Oops! another 'memory lapse' exposed).

What was this "Maryland Extract" that was added to Players Special Blend? (An additive with a secret formula.)

And what about the measurement that Mr. Leblond made in 1994 (Exhibit 998) "to find out how much nicotine is added to Player's Special Blend?"  when Maryland Extract was added to the recipe. Well that looked pretty conclusive that Maryland Extract was used to increase the nicotine content of that brand of cigarettes.

With the evidence of Mr. Leblond's assessment of the addition of nicotine in his hand, Mr. Trudel asked the witness to confirm that "The nicotine content was increased by approximately 1.5% -  right?"
"I would answer yes."

And as for the amount of additional nicotine that was left on tobacco when nicotine-denatured alcohol had evaporated away? (Mr. Leblond had once calculated that 3.3% was left on the tobacco in the form of nicotine salts.)

Players Special Blend -
fortified with nicotine extract,
but not with pure nicotine
And yet ...Imperial Tobacco had issued a press release (Exhibit 40017) only a few weeks after the calculation that "Imperial Tobacco does not add nicotine to any of its products to enhance their nicotine levels. The nicotine content of cigarettes and fine cut tobacco products is exclusively determined by the blends
of tobacco in the product."


Pierre Leblond explained that this seeming contradiction was  explained by the distinction between 'natural' and  'chemical' nicotine.
"So your proposition is when you add nicotine extract you don't add nicotine?" 
"Yes."  Well, what was he going to say -- 'It's a fair cop?'

And as for the tobacco waste that is sucked up and turnedinto processed leaf (PCL) that eventually makes up to 10% of all cigarettes, it would seem that all the waste is mixed together, including that from the parts of the plant that use additives and casings. No separate categories for additive-free PCL.

The mystery solved through a smouldering Maryland Extract, a spent denatured alcohol and a PCL footprint, the court adjourned for lunch.

Not a smoking gun?! Not a spent bullet!? .... 

I was not eye-witness to the afternoon session, but the record shows a plot twist, as Deborah Glendinning, who represents Imperial Tobacco in this case, used her cross examination to ask Mr. Leblond to agree that the calculations he made in 1994 (Exhibit 998) contained errors. The first was that Maryland Extract - a liquid - was "simply more tobacco, in a different form, that's being added as a flavourant." The second was that there was a decimal-point error in the 1.45% calculation, and that the figure should was actually one hundred times smaller.

Justice Riordan appears to have not agreed with her math, but he gave the witness an opportunity to say that the value was the "total amount" of nicotine in the cigarette, not the amount added. "So it looks like there are two mistakes in that document," concluded Mr. Leblond.

Watch for more plot twists in this continuing saga....

Gone but not forgotten

The Court of Appeal ruling that the federal government is not a co-defendant in the case has not apparently stopped the tobacco companies from bringing the government back into the case. In her cross-examination during the brief appearance of Rita Ayoung, Ms. Suzanne Coté asked the former librarian to confirm a number of BAT restricted reports that had been provided to Agriculture Canada and to scientists working with the federal government on tobacco agronomy. 

On Monday, the trial will hear from Mr. John Barnett, who is the current president of Rothmans, Benson and Hedges. He is the last of the three company executives to testify. Later in the week, the trial is also expected to hear from Mr. David Sweanor, formerly with the Non Smokers' Rights Association.

Wednesday, 14 November 2012

Day 83: Federal Government Released

Late in the afternoon of a tedious session at the Montreal trials of the Quebec class action suits, a buzz went through the classroom.  Simultaneously, lawyers from all sides (and also Justice Riordan) were reading their e-mails. The word had come down from the Quebec Court of Appeal - the federal government was being released from this case.

Justice Riordan looked up from his computer and said simply "Congratulations, Mr. Regnier."

"It's been a pleasure, monsieur le juge" replied the federal lawyer, who then closed his computer, picked up his briefcase and left the room with his government colleagues following behind.

For the first time in 6 months of trial, the back bench on the plaintiffs' side was empty. The courtroom, already hollowed out during the document exercise underway, suddenly felt diminished. Including judge, bailiff, stenographer, clerk and bloggers there were only 16 people left in the room.

This decision gives everyone a year or two back of their life, as the trial will now be considerably shorter. But was there any other good news for those left in the courtroom?

The tobacco companies have lost their hoped-for fall guy. The plaintiffs, who once entered into a formal agreement with the federal government, have lost the daily presence of  Maurice Regnier, an ally and a litigator with deep experience in dealing with tobacco companies. Justice Riordan has lost face, to the extent that one of his major decisions has been overturned. I am losing hope that this case might more forcefully prompt the federal government to review the sufficiency of its actions to "protect the health of Canadians."

The 40 page judgement (en francais, naturellement), was written by Justice Gascon on behalf of Jacques Leger and Jacques Fournier. In addition to supporting the federal view, it also awarded costs (although less than they were originally asking). I will leave to others the interpretation of the reasons.

Is this the end of the road for the federal government in this case? The companies aren't shy to knock on the door of higher courts, and there might be a bit of uncertainty until the Supreme Court rejects their leave to appeal. The ruling (para 159) sets the conditions for the companies to keep the federal government in the case during an appeal to the Supreme Court. But the end of the road for the federal government is clearly in sight.

It's hard to visualize the government effectively removed from the case. The tobacco companies will have even greater motive to invoke the federal role and to make claims about the instructions they received from Health Canada and Agriculture Canada officials. They will still be able to say "I was only following orders," but now there will be no one there to say "No you were not - and here is the proof." 

Taxpayers, however, do have reason to cheer. The federal government spent $15 million last year defending itself against third party tobacco suits. I am told they are still not dismissed from the Ontario government damage recovery suit, and are expected to be drawn into the Quebec government case.

Earlier in the day

This was the third day in a row that this trial was focused on procedural and management issues. Without witnesses, there has been no requirement for court robes. While black prevails, some of the lawyers have used the occasion to express their fashion creativity and unveil a wardrobe of astonishing ties. (If the Court of Appeal ruling makes Mr. Regnier think the pink floral concoction he wore today is his 'lucky tie,' then future clients should be warned.)

The lawyers' creativity was not confined to their wardrobes. In this transition phase of the trial, new tools were being worked on to defend against the testimony of the plaintiff's expert witnesses. New arguments. New framing. New objections. It didn't feel like sabre rattling so much as sword sharpening.

It looks like this phase will be a war on footnotes, with the companies individually challenging hundreds of documents used by the experts during the preparation of their reports. How this war will be fought is not yet clear. The prolonged discussion on these issues seemed to substitute for the "motion for directions" that had been filed but was not in the end debated.

The industry sound like they intend a series of skirmishes during the testimony of each witness. Bruce Johnston cautioned that the plaintiffs would consider it an abuse of process if the defendants interrupted the flow of witness testimony with a barrage of objections. Justice Riordan proposed that it was better to hold off disputes over the value of such evidence until much later in the trial.

Justice Riordan: "Wouldn’t it be sensible to wait until the written argument? In that argument plaintiffs will refer to documents and you will have a reasonable period of time to made your arguments."

Deborah Glendinning: "Absolutely not. We need to know what proof we need to make." 

One expert report clearly in the sites of the companies is the first one, that of Robert Proctor, who is scheduled to begin testifying on November 26.

Order some more bookshelves

Yesterday, Mr. Lespérance had referred to the physical challenge of introducing evidence document-by-document through witnesses and pointed to the 30,000 documents that the companies had identified in their "403" notices. Justice Riordan pushed for clarification from the defendants on the number they anticipated they would produce. There was some hesitation before showing their hands, but the lawyers for Imperial Tobacco indicated there would be 15,000 to 19,000 (of which 11,000 were newspaper articles). JTI-Macdonald and RBH volunteered they had about 3,000 additional documents between them.

Not being "overly inclined" to sit in court while thousands of documents were individually entered into evidence, Justice Riordan began proposing alternative methods, one of which was test-run this afternoon. A set of documents that will end up being footnotes to the expert reports of Richard Pollay was discussed, given tentative exhibit numbers and offered up for objections.

Clearly some imaginative thought had been given to finding new objections to knock out these footnotes. "Irrelevant!" said Simon Potter about many types of research documents that have already been put on the trial record (such as exploratory marketing research or focus groups on young persons outside Quebec). Against the Browne and Dunn rule! said Doug Mitchell about documents that could have been linked to witnesses who have come and gone.

As a result, many of the more than 100 documents reviewed were consequently marked with an "R" for reserve when they are produced in the coming days. This has to be balanced against the happy decision to remove the "confidential" status of survey records entered yesterday. When available, these sets of documents will be added to yesterday's blog.

Today began with Mr. Lespérance announcing that the plaintiffs were now planning to introduce documents from Legacy through conventional procedures.


David Schechter testifies posthumously

Justice Riordan will be providing reasons later for his decision, announced today, to permit the evidence of David Schechter before the DOJ case as though presented in this trial.

Tomorrow two witnesses will make their final appearances at this trial -- Ms. Rita Ayoung and Mr. Pierre-Francis Leblond. Next week, Mr. John Barnett, the current CEO of Rothmans, Benson and Hedges, will testify during the first days of the week.