Tuesday, 28 May 2013

Day 149: The rational decision to smoke

A Winnipeg-born political scientist who has spent much of his professional life examining how voters apply their economic self-interest to the ballot box appeared for the second day at the Montreal Tobacco trials.

Raymond Duch's task at this trial was to present, on behalf of two of the defendant tobacco companies,  his opinion on "the awareness of the Quebec (and Canada) population from 1950 to 1998 of the health risks associated with smoking and of the public's view that smoking can be difficult to quit." 

Yesterday he presented his 180 page report (Exhibit 40062.1) under friendly questions from JTI-Macdonald's lawyer, Doug Mitchell. On the basis of about 35 studies selected from about 300 he considered, Mr. Duch concluded that public awareness about reports linking smoking to disease were "exceptionally high" from the early 1960s, that public beliefs that smoking was harmful became equally high within a few years and that as long as there has been polling on the subject, Quebecers have known that smoking was habit forming.

Today Mr. Duch took his analysis one step further, and introduced a new concept to this trial - rational choice theory as applied to smoking. (A familiar defence framing in U.S. tobacco trials).

High levels of belief that tobacco is harmful means that "the smoking decision is not any less rational than voters' decisions  – they are informed decisions."  

Increasing the numerator makes the numbers fit

Mr. Bourque interpreted these results as
indicating 6 in 10 smokers thought cigarettes
were dangerous, but Mr. Duch said it
meant that 91% were.
Mr. Duch is the second polling specialist to testify as an expert in this trial, and he spared little effort in slagging the efforts of the first, Mr. Christian Bourque of Léger Marketing.

(Mr. Bourque had reviewed results from the private CMA surveys conducted by Imperial Tobacco and produced a much lower estimate of the level of belief that smoking was harmful.)

Today Mr. Duch offered his reinterpretation of Mr. Bourques results to show that they were not so very different from his own. He suggested that all smokers who shared any belief that cigarette smoking was harmful should be grouped together as those who believe and not, as Mr. Bourque had done, to group together all those who thought that some level of smoking was not dangerous as those who don't believe.

Similarly, Mr. Duch felt that smokers' responses to CMA questions about how many cigarettes one could smoke could be reinterpreted to support his conclusions that health hazards were well known.

The cross examination

All but an hour of today was spent in the cross-examination of Mr. Duch -- first by Mr. André Lespérance and later by Mr. Bruce Johnston.

Mr. Lespérance's cross-examination style looks nothing like the TV shows. He has a very gentle affect, and a very calm manner. Even with his arms crossed and staring intently at the witness, as he was today, his voice maintains a kind tone and his questions are phrased in a positive way.

So it was somewhat surprising to see Mr. Duch respond with anger to questions so politely presented and whose content must surely have been expected (and rehearsed) by the ever well-prepared Doug Mitchell. This is the first expert witness that Justice Riordan has had to counsel to "calm down a minute and take a breath."

A view from above

There is a fine balance between a display of expertise that makes a person sound learned, and one that makes them seem unreliably out of touch. Mr. Lespérance successfully invited the witness to cross that line.

With more than a whiff of Faculty Club invective, Mr. Duch had made it clear that he found Mr. Bourque's work did not pass muster. "A classic example of spurious regression ..." "Mr. Bourque is being extremely misleading..." "A careful analyst would simply not do this."  

Mr. Lespérance returned to a few of the areas in Mr. Bourque's report that had drawn criticism. In doing so, he was able to show that the criticisms were misplaced, or blown out of proportion.

One of these was Mr. Bourque choice to replicate a 20-year chart from an Imperial Tobacco report (Exhibit 63) to illustrate the company's own knowledge of its CMA data instead of drawing from the semi-annual survey results.

Mr. Duch criticized the use of
secondary data in Mr. Bourque's report
as an "incomplete analysis"
Mr. Duch said this was not good enough, and contrasted it with his own higher standards.  "There were 34 studies -- not only the [20] identified here. I went back and got every one of the 34 studies -- Why didn't he get all 34 studies?!" ... "I would argue that for example that it is an incomplete analysis of the data that was available." 

Even when Mr. Lespérance forced the witness to agree that all of the years covered by the CMA were covered by this table, and that it had indeed produced the same trend line as his own analysis of public polling data Mr. Duch did not seem to see any wisdom in climbing down from ivory tower. ("I am simply saying that if I were evaluating ..."if I were reviewing this article for a journal...")

"But you do the same exercise and come to the same conclusion," Mr. Lespérance reminded him. "Yes," he admitted "but I conclude much more precisely!"  

Missing studies, Missing data

Most of the studies cited by Mr. Duch in his report were multiple choice (closed ended) questions put to Canadians about whether they had heard that tobacco was linked to lung cancer or whether they believed that cigarette smoking was a health hazard.

Missing from his report were references to any studies that asked smokers to say without prompting (open ended) what they thought the health consequences of smoking were, or to qualify their perceptions of the risk by comparing these with other aspects of daily life.

Some of those studies were among the JTI-Macdonald documents that were shared with the plaintiffs but not, apparently, with their own witness even though he testified he had asked for all relevant material.

One was a 1990 Environics survey of Ontarians, which found that although lung cancer was the most frequently identified health hazard from smoking, it was identified by only 44% of smokers. Only 20% mentioned emphysema or heart disease. (Exhibit 1547.1 and 1547.2) (Mr. Duch said that unprompted questions were "Absolutely not!" a more accurate measure of knowledge.)

Another was a Gallup study commissioned by the Canadian Cancer Society which can be found on the court record of the constitutional challenges to Canada's tobacco laws (in which Mr. Mitchell and his law firm were central players). It shows that as late as 1988, most Canadians though that traffic accidents were responsible for most preventable deaths in Canada. (Exhibit 1548)

Even within the studies which Mr. Duch used for his report there were questions relevant to health beliefs that were not included in his findings.

These included part of an Environics study (Exhibit 40064.24) that compared smoking with other risks but found "Adult Canadians are quite divided and unsure as to whether or not 'smoking is no worse than a lot of other things around us, like chemicals in food and car exhaust fumes.” 

Mr. Duch again appealed to his high methodological standards as a reason for rejecting this data that did not seem to fit his conclusions. "The question wording is inconsistent with all other questions I used."  Besides, he added  "this is a leading question - a badly worded question."

He had similarly not included another response in a study he cited (Exhibit 40064.6), one which asked Canadians to agree to questions like "Air pollution causes more lung disease than cigarette smoking” (70% said it did) or “some cigarettes are safe to smoke” (84% said they were).

Another question he overlooked was in a Goldfarb study he reviewed (Exhibit 40064.51), which asked whether people thought smokers died earlier. (Only 47% said this was true, and 31% said it was false). Again, Mr. Duch appealed to methodological concerns. "I am reluctant to accept that this particular question in and of itself should be the basis for me concluding something about peoples' concerns about smoking and death – only because it is one question." 

Even a study done for the CTMC (by Goldfarb in 1990) which reported on seemingly low levels of unprompted knowledge of health effects drew severe criticisms from Mr. Duch. "People can't orient themselves" with open ended questions, he said. "This does not conform to the conventional format for asking the question." .. They're wrong.” "This is someone who doesn’t know how to analyze data." 

Unanswered questions

By mid afternoon, a pattern of responses by the witness had set in. Survey questions that did not match the binary believe/don't believe pattern of his trend line were discarded. The additional information they might provide was not reliable, or he was not prepared to comment without further study.

He would not engage on many of the issues related to people's knowledge of health harms - like the storied "controversy", the engagement of third party messengers to overcome credibility issues, or the segmentation of the cigarette market according to health concerns.

Mr. Duch had said yesterday that the reason he agreed to undertake this research was his interest in people making decisions that "at least on the face of it, seemed to be irrational." Mr. Johnston wanted to know whether addiction had featured into his "conceptual methodology" for smoking, but Mr. Duch would not go beyond saying that he had found that people knew about addiction.

At the end of the day, Mr. Johnston asked Mr. Duch to reflect on a response from employees at Gallup to the use of their data by defence witnesses in U.S. tobacco litigation. (Exhibit 1239) The pollsters' concerns included the industry's selective use of data, and its view that responses to polling questions about "harm" could be consistently interpreted over a long span of years during which the public understanding of harms was changing.

Mr. Duch seemed unimpressed by their critique. Their paper was "presented in a conference and never peer reviewed or published," he sniffed. "Its authority is limited." 

Information short-cuts

The last question put to the witness came from his own lawyer (the 're-direct'), who invited him to explain why public misconception about the relative death toll from tobacco accidents did not affect his conclusion.

Mr. Duch explained people make decisions about a variety of things in life "using information short cuts. ... we know that people do not engage in exhaustive or complete collection of information."

"People for example do not know all of the information on toxicity of cigarettes in making a decision on smoking or not smoking. The notion that people sit down and assess the specific risks of automobiles or getting in a plane accident or assessing the precise probability of dying from smoking is absurd."

"Once people know that smoking leads to lung cancer – adding specific bits of information is not going to change their decision making calculus."

The trial does not sit next week. When the trial resumes on June 10th, the tobacco companies will call their first witness from Health Canada, Mr. Denis Choinière. The following week, the former Minister of Health, Mr. Marc Lalonde, is expected to testify.

Monday, 27 May 2013

Day 148: Raymond Duch and public polling

As the Montreal tobacco trials entered the third week of the "defence proof," a third expert witness was called in to speak to what is seen as the industry's main line of defence - smokers' awareness of the dangers of using their products.

Over the past two weeks, the trial has been presented with a "deluge" of old press clippings and other reports of information presented to Quebecers during the second half of the 20th century. These came in the form of reports by two historians, Jacques Lacoursière (for Rothmans, Benson and Hedges) and David H. Flaherty (for Imperial Tobacco) as well as the literally thousands of published reports that were the basis of their analyses.

Raymond Duch
Today's witness, Raymond Duch, is not an historian, but is instead a numbers man. As a quantitative political scientist, he focuses most of his research efforts on economic voting. (As he explained it to the court this morning, it would appear that our voting decisions are not driven by altruism or political philosophy. Sigh.)

Although he originally hails from The Peg, Mr. Duch's current home address is in Oxford, England where he is a fellow at Neuffield College. From his careful and sometimes hesitant answers, my guess is that he is not often called on to explain math at a court-room or non-Oxford level. He did well at what must be a primary objective: he kept Justice Riordan attentive and engaged.

Mr. Duch's mandate from JTI-Macdonald was to focus not on what information Quebecers were exposed to through the media, as the historians had done, but rather to review polling results to assess what the public remembered hearing and what they believed as a result.

His Report on Public Attitudes Associated with Smoking: Quebec and Canada was filed today under Exhibit 40062. (The source material will be filed under Exhibit 40064).

His is another contribution to the hefty research library assembled courtesy of these first tobacco industry witnesses. Now to find a way to make it available!

The 'Read-in' Rule

The practice adopted in this trial has been to accept the reports of expert witnesses "as read," which is to say that they do not need to be formally presented. The implementation of this practice has varied considerably, but in today's instance it meant that Mr. Duch presented the highlights of his findings to Justice Riordan in response to the questions fed to him by one of JTI-Macdonald's counsel, Doug Mitchell.

(It has been some weeks since we have seen Doug Mitchell in this court. With his convivial questions and occasional bon mot today, he seemed far more at ease today than earlier in the trial when he was handed the job of trying to knock the stuffing out of the plaintiff's witnesses and their testimony.)

For most of the day, the lawyer and witness simply followed the outline of the report. This allowed Mr. Duch to put on the record his views that:

* there were "remarkably high" levels of awareness of reports that smoking can cause cancer among Quebecers - even as early as 1954. "88% for Canada and 82% for Quebec - those are essentially everyone in the population. You don’t often get numbers that high." (Beyond 85%, he said, means "you really have the whole population".)

* although in early years Quebecers had lower levels of awareness than other Canadians, those differences disappeared by the mid 1980s.

* reports linking smoking and lung cancer were treated seriously, in part because of people's fears of cancer and also because the information came from highly credible sources. "The message will be listened to and will resonate – it will catch the attention of listeners."

* by the mid 1980s, Quebecers and Canadians were telling pollsters that they believed the link between smoking and lung cancer and other health problems.

* the trend in public acceptance of the health consequences showed a steady and consistent growth until the late 1990s when it neared 100%

* around 85% of Canadians reported their belief tobacco use was habit forming or hard to quit in the early 1980s, and that a decade later they agreed that it was "addictive."
Mr. Duch observed a steady increase over time in
agreement that smoking is a cause of lung cancer

Inside jobs and Outside jobs

By now the failure of industry witnesses to examine internal documents is a well-established pattern. We did not have to wait for the cross-examination to have the issue put to Mr. Duch, who is the third witness in a row to overlook the rich vein of research material that has now become part of the court record.

The examination had barely begun before Justice Riordan asked the witness why he had limited his inquiry to public polls.

Like those before him, Mr. Duch said the decision had been his to make. "I made an early decision to only include what I call publicly available data or survey data referenced in peer reviewed journals. I decided not to include survey data gathered by interested parties." 

"You don’t give credence to what was done by the companies? ... were [the polling companies] reputable firms?" Justice Riordan asked.

The companies were perfectly reputable, Mr. Duch said, but he "felt would undermine the credibility of the report" if he used their results. "Maybe it was a wrong call on my part, but I felt that it was the right call." 

The best defence is a good offence

Mr. Duch's report is the second expert survey report to be filed with the court. The first was by the plaintiff's witness, Christian Bourque, who testified in January and March.

The sources used by the two men for their reports are mutually exclusive. In yet another irony,  Mr. Duch, who works for the industry, looked only at public polling. Mr. Bourque, who is a public pollster (with Leger Marketing), looked only at the industry's private data.

Nor are their findings compatible. Mr. Duch found an "exceptionally high level" of awareness and indications of perceptions of risk.  Mr. Bourque found that "a good number" did not perceive smoking to be dangerous, and that even by 1990, one smoker in 5 did not clearly understand that smoking was dangerous for everyone.

It's not possible to square these two perspectives - and this afternoon Mr. Duch was invited to square off against the plaintiff's expert who was sitting at the back of the room listening, just as he had sat to observe Mr. Bourque's testimony.

"I don't want to personalize this," Mr. Duch began before launching into a review that was in many ways the mirror of the criticisms levelled against his work and that of other industry witnesses.

Mr. Bourque erred, he said, because he only looked at the industry records and was "innattentive to the large body of existing public opinion research" that "should have been addressed or referenced in the report." As a result, "his conclusion is an order of magnitude different to what the publicly available data suggests."

He criticized the questions that were used by Canadian Facts during its much-repeated survey, saying that they were too ambiguous, or "conflated" issues by combining ideas. "The data that comes from the survey is entirely unreliable." The presentation of results was also flawed, he said, as Mr. Bourque had improperly interpreted answers to what he saw as a factual question about smokers' views on how many cigarettes could be smoked before incurring health risks.

The whole exercise was so flawed, in his view, that Mr. Duch charged the plaintiff's witness with "misleading the court" and taking an "indefensible position."  Ouch!

The plaintiffs continued to maintain a calm silence throughout the day -- it was Justice Riordan who sounded like he was defending the plaintiff's witness when he pointed out that Mr. Bourque's mandate had been limited to the industry's internal polling.

Pre-emptive strikes

The first two historians to testify for the industry had suggested that the tobacco companies had little credibility, and that there denials of health risk would therefore have had little impact. Although Mr. Duch did not review any public polling data on this, he was asked to comment on an internal poll conducted by Imperial Tobacco that at first blush - and without the explanatory tables - might suggest that half of Canadians thought the industry was credible. (See "52%" figure circled in red from Exhibit 987.21).

Perhaps fearful that this information would be misunderstood if presented by the plaintiffs on cross-examination, Doug Mitchell invited Mr. Duch to explain that the question had only been asked of those who said "yes" to the question of whether the industry could make a case to refute health concerns.

The arithmetic was presented (52% x 31% = 16%) showing that only 16% of Canadians thought the industry was credible (about 1 in 6 people).

Mr. Duch was not asked to comment on the fact that among smokers (circled in yellow), one-quarter of smokers found the industry credible. (61% x 41% = 25%).

By today's 1.5 million Quebec smokers, that would be 375,000 individuals, almost the population of Quebec's third largest city, Laval.

A short week

With virtually no interruptions from the plaintiffs, and a witness who seemed to explain his work concisely and clearly, Mr. Mitchell had almost finished by the end of the day. The cross-examination will likely start early tomorrow and be finished by the end of the day.

If so, a short week will have become even shorter -- as the tobacco companies have still not provided any back up witnesses to fill the holes in the schedule should Wednesday now be an empty day.

Which brings us to the next installment in the saga of Justice Riordan's case management decision.

Yes, abusive. But process, not people.

An enhanced politesse has entered the discussions between Justice Riordan and the defence counsel following their objections  to his decision to limit their proof to 175 days (their schedule, which has not been made public, identified 300 more trial days).

The lawyers' speeches were prepared in advanced, and read in the most moderate tones. And so was Justice Riordan's response when it was provided at the beginning of the day.

The judge said he had reflected on the complaints, and clarified that his use of the word abusive "is in relation to excessive and unreasonable" schedule that was proposed. He said he had made no allusions to improper behaviour by individual lawyers.

He acknowledged that is ruling was an "unusual step." While he did not step down from his decision to impose a time limit, he said he would "welcome" the offer of modifications that the companies had made "should they materialize."

He specified that his concern with respect to class members was that the Imperial Tobacco would ask for individual medical histories and records, which he has previously refused. Appeals of future decisions to deny access to these records "could add months to the trial." He said it was not appropriate for him to put any objections under reserve (i.e. force the class members to divulge their histories and then strike them from the record later).

He suggested either holding one week of hearings on class members (to get objections on the record) or having a test case identified earlier. "This would allow the appeal case to proceed."

He responded to the comments about his impartiality by stating that there was no basis to see his ruling as suggesting he had made any decisions on the case. "Pieces of the puzzles are still being laid out on the table and I do not intend to start assembling them until the end."

Justice Riordan's ruling compelled the companies to produce a new schedule for May 31st that "will respect a total of 175 days of hearing". An interesting way to observe World No Tobacco Day.

Mr. Duch's testimony will continue tomorrow.

Thursday, 23 May 2013

Day 147. History will be kind to them, for they intend to write it

This morning, when the retired history professor, David Flaherty, resumed his presentation to the court where the Montreal tobacco trials are being heard, there was very little remaining in his expert report to be discussed.

His clients' lawyer, Neil Paris, lead him through the last whistle-stop in his 5-decade review of the history of tobacco and health in Quebec as told through newspaper and magazine reports. The period discussed today was the 5 years leading up to the launch of the two class actions, in 1998.

There were lots of Big Events during this period, and Mr. Flaherty briefly touched on them all: the narrowly split decision of the Supreme Court of Canada to strike down the Tobacco Products Control Act, the development of its replacement legislation and the public debates over whether Formula 1 and other sponsored events should continue, the emergence of new tobacco control organizations in Quebec and the enactment of Quebec's own tobacco law.

His review ended in 1998. After slightly more than two days' testimony, Imperial Tobacco's lawyer and expert witness had arrived at the end of their road. Mr. Paris invited his witness to "sum up" and the conclusion of his report (para 173 of Exhibit 20063) was read into the record.
"The evidence is incontrovertible that the overwhelming message communicated to the Quebec population was that smoking caused lung cancer, as well as a multitude of additional adverse health consequences."
Before releasing his witness to the plaintiffs' team for cross-examination, Mr. Paris turned to the issue that had hung over the report since the appearance of the plaintiff's rebuttal witness last December -- the stinging criticism of Mr. Flaherty's methods by Stanford history professor, Robert Proctor. (Exhibit 1238)

Mr. Paris asked whether Mr. Flaherty had read the rebuttal report, and invited the witness to contrast his own research approach with that of Mr. Proctor.  At this point that the tone of Mr. Flaherty's remarks shifted and the affable history guide gave way to thin-skinned academic.

"Simply put, it is my judgement as a professional historian that in the report he wrote and in the book The Golden Holocaust he is writing what a British reviewer called advocacy history...

I am disappointed, to say the least, that he seemed to pay no attention to the work that I did but had the temerity to dismiss it as a largely clerical exercise. ... I am surprised he found his way to Canada, he knows so little about [it]. 

"He has an idée fixe on the American industry which he has transported onto the Canadian industry."  .. There is no evidence he actual read [my evidence] because he never quotes it. I say again that this is not how professional historians work."

The cross-examination

In the large legal teams that are on both sides of these lawsuits, there are certain lawyers who are selected for the most adversarial cross-examinations. For the plaintiff's side today, this was Bruce Johnston.

The transcripts capture the words (way better than I was able to do this week, with a soft-spoken, fast-talking witness and an uncooperative sound system), but they do not record the body language, tone of voice, facial gestures and other means by which lawyers can increase the impact and intimidation of their questions. (I think the black robes add considerably to the intimidation factor!).

Although they share some of the same tactics (beginning by pointing out small errors - even inconsequential ones - seems to be a favoured way to try to tip a researcher's equilibrium) each of the lawyers has their own style. Bruce Johnston today chose to put a few central questions to Mr. Flaherty and to squeeze down on them, vice-like, to force out answers. He kept hammering at the key points until they were firmly nailed in.

This week, Mr. Flaherty presented himself as not just a bona fide professional historian, but also a good one.  Although much of his work is in non-academic fields, he clearly remains proud of his academic accomplishments and was defensive of suggestions that he had made research errors.

Mr. Johnston focused his questions on the fault line between Mr. Flaherty's pride as a professional historian and his contractual role as a consultant. Not good enough to measure this expert report against the mandate provided by the tobacco companies - it should be tested against the standards of good historical research.

As a good historian, why had he measured what people had been told, but failed to explore what they believed? Why had he ignored so much primary source material? Failed to build on the work of other historians in the field?

And why had he allowed the tobacco companies to shape his research over two decades and turn him into a cookie-cutter industry witness?

Historical Standards

During his cross-examination of Robert Proctor, JTI-Macdonald counsel Doug Mitchell had shown the the "Statement of Standards" of American Historical Association (Exhibit 40024) to try to illustrate what he saw as a gap between Mr. Proctor's research approach and the norms of historical practice.

Mr. Flaherty seemed unaware of this previous exchange, and the poetry of Mr. Johnston using it in his own examination of a defence witness was lost on him.

Surprisingly, perhaps, he was completely unfamiliar with the document itself or any of its earlier versions. Perhaps conduct codes are not as common for historians as they are for other professions.

He bristled sarcastically when asked to agree with some of the passages. "I'm enjoying this lesson in integrity and ethics! It should happen to every elderly historian."

These principles -- the standards of what constitutes good  history -- were the foundation for most of the Mr. Johnston's questions over the day. Highlighted was the assertion that historical interpretation should evolve in response to the growth of secondary literature that "places those documents in a larger context." 

Primary sources ignored

Mr. Flaherty opened himself up to focused questions on the primary sources he ignored (his report only looked at the publication record) when he spoke of a "fascination" with former Imperial Tobacco president, Paul Paré. "I wanted to be able to report on how his views on smoking and health evolved over time."

If that is so, then why did he not look into memos, letters and other primary sources to "understand him better." The witness stressed that as a consultant he did not go beyond his mandate given to him in litigation, and rattled off a number of legal files he had been involved in where he had also kept to the narrow scope of his contract.*

It was not even that he would have had to ask Imperial Tobacco for records on the object of his fascination, as there are hundreds available on the Legacy site. But although he was aware of the Legacy site and had used it, he had not looked for any internal industry documents. "I primarily used Legacy to read the work of Robert Proctor."

Also conspicuous in its absence from his report was any reference to tobacco advertising. (It was, he reported, included in his late 1980s original research plan, but after discussion with his clients it had been dropped).

He said today that "the probative effect of the information" added nothing. Even quantifying the number of that people saw the health warnings in ads was not relevant, he said, as it only contributes to knowledge in a "in a repetitive way." 

As with the Legacy documents, he would not have had to go far out of his way to put his hands on advertisements. Many had been collected by the students who "spun" the microfilmed records and produced the photocopies that were sent to Mr. Flaherty. But when he reviewed these documents, Mr. Flaherty "got rid of them" as he wanted to get "to the meat and potatoes."

It was not, he agreed, that he thought advertising was not relevant. In fact he gave a shout out to the plaintiff's marketing expert, Richard Pollay, whose understanding would "be much more informed, must more learned, because he's a specialist in history of advertising."  

Secondary sources 

Perhaps because Mr. Flaherty was so strong in his views against Robert Proctor, that Mr. Johnston focused instead on the work of three other American historians who had studied the tobacco industry.

Their publications were among the material that Mr. Flaherty said he collected and that "as a good historian" he read. He said he received help from another historian in keeping track of new publications in tobacco issues and had collected"hundreds of articles" and books on smoking and health and.  "I have read a lot." 

He singled out Richard Kluger (who wrote Ashes to Ashes) for praise. "He is an example of a remarkable journalist, a non-professional historian who writes terrific work. He's really on top of the primary materials and I respect his judgement."

Mr. Johnston showed him Richard Kluger's conclusion that the industry used its power and money to generate a scientific controversy.  Mr. Flaherty did not contest his conclusion with regards to the U.S. industry, but felt it did not apply to the Canadian companies, which, he said, took more "supportable positions." 

For many minutes, he was pressed by Bruce Johnston to produce an example of a more "supportable position." Mr. Flaherty offered a range of replies, some of which were strikingly odd. He likened the situation to the Catholic church, which has views "that we all know are a bit odd" but nonetheless "stick to their guns." I could not see how his tobacco examples -- like a report on Rothmans' president saying that most smokers do not get lung cancer - helped his point.

Another historian respected by Mr. Flaherty is Harvard professor, Alan Brandt, who wrote "The Cigarette Century" and who testified in the DOJ/RICO case. Mr. Johnston drew attention to Mr. Brandt's similar conclusion that tobacco companies sustained an artificial scientific controversy, and that they did so in order to keep people smoking.

Why was this idea not reflected in Mr. Flaherty's research - not even as a hypothesis? After all, much of what Canadians were told about tobacco came from the American companies and their trade associations, according to Mr. Flaherty's report.

It wasn't relevant, Mr. Flaherty suggested. Canadian readers would have distinguished between American and Canadian spokespeople when they were reading these news stories.

It was the third historian introduced during the day that caused Mr. Flaherty the most discomfort.

A parade of near identical defence historians.

Towards the end of the afternoon, Mr. Johnston asked Mr. Flaherty about an analysis prepared by American historian Louis Kyriakoudes (Exhibit 1546) of the historians who had testified on behalf of tobacco companies in the United States.

Mr. Flaherty had read the paper, and was clearly not comfortable with its conclusions. He spoke scornfully about the author -- "This author is casting aspersions on a lot of talented people with much more important reputations in American history than Louis Kyriakoudes who teaches at the Department of History at the University of Southern Mississippi." (His tone emphasized that there was something highly undesirable about the University of Southern Mississippi).

Nonetheless, this paper was the basis for a prolonged exchange between Mr. Johnston and Mr. Flaherty. When the witness resisted providing clear answers, Mr. Johnston brought in additional texts to push home some points.

By the end of the discussion, Mr. Johnston had established that Mr. Flaherty's testimony was a close fit with the pattern of U.S. industry witnesses.

* Received assistance and support by the Special Trial Issues Committee /Allen Purvis and Jan Johnson. Check
* Recruited without prior expertise in the history of science or medicine. Check.
* Testified using a definition of common knowledge as something that is cumulative over time. Check. 
* Used an idiosyncratic definition of common knowledge, not one supported by literature. Check.
* Excluded industry documents that are available on line (i.e. Legacy). Check.
* Used surveys like the Gallup Poll, but avoid industry survey research. Check.
* Used primary material provided to them by the industry. Check.
* Focused in their testimony on news coverage between 1950 and 1964. Check 
* Described events during this period as "deluge" of information. Check.
* Minimized industry's role in fueling the controversy. Check.
* Claimed the industry's voice was weak and inconsequential. Check.

By the end, even the witness acknowledged the obvious.

Mr. Flaherty. There's a lot of coincidences here, aren't there?
Mr. Johnston. There are, yes
Mr. Flaherty. Yes.
Mr. Johnston. I would say.
Mr. Flaherty. Mine are totally accidental, may I say.
Mr. Johnston. Okay.

With that, the day's questions were over.

Mr. Flaherty's return will not be scheduled until after the Supreme Court has decided whether or not to hear an appeal related to a ruling of Justice Riordan that these early reports are not subject to privilege.

Next week, Raymond Duch will be the third industry witness to testify about public knowledge.

*(His revelation that he "regularly get[s]s mandates from Health Canada" might cause the government some embarrassment, given that they have a treaty obligation to avoid such conflicts of interest).

Wednesday, 22 May 2013

Day 146. A tale of two crises

A funny thing happened mid-morning during the second day of testimony by Imperial Tobacco's expert witness on "awareness" of the risks of smoking. A natural public health parable unfolded after the huissier (bailiff) approached the bench and whispered a message to the judge.

As Justice Riordan conveyed to the room that the water in the court water was not fit to drink, the huissier worked his way around the lawyers, removing from each desk the pitcher of water that is set there each morning.

In a room filled to with blackberries, ipads and computers, it didn't take long for everyone to be aware that the water was potentially unsafe, and for a common knowledge of the city-wide boil advisory to be established.

The courtroom
drinking fountain
lies covered
until water safety
can be assured.
Yet this did not prevent further action on the part of those who supplied the water or who had responsibility for the well-being of those inside the justice building.

To the contrary - soon there were signs on every water outlet in the building, and the drinking fountains were blocked by plastic covers. (What's more, no one was saying the risks were not proven, the controls were excessive, or the warnings took up too much space!...)

It was a modern John Snow moment. The pump handle was disabled without anyone actually getting ill.

While this public health response was unfolding, David Flaherty, professor emeritus of history and former Privacy Commissioner of British Columbia, continued his year-by-year review of the history of tobacco and health in Quebec since 1950.

By comparison, his telling was a story of non-response.

It took half an hour for the water-warnings to be erected. But it took more than a day and a half in Mr. Flaherty's chronology to get from the early 1950s "cancer by the carton" health scares to the 1971 agreement of the companies to print warnings on the packages. The day was almost over before Mr. Flaherty told the court about the development of Canada's first regulated health warnings, imposed at the end of the 1980s.

The scenic route

"Don't give me a roadmap - drive me!" Justice Riordan said yesterday to Neil Paris before this fresh face on Imperial Tobacco's large legal team began his extended dialogue with the historian.

With Mr. Paris at the wheel, the ride was smooth and steady, if somewhat slow. His extended itinerary passed by more than one hundred news reports, each of which was displayed on the overhead screens.

Dr. Flaherty's steady narration illustrated each stop on the way. And if all the road-stops began to look the same, and all the stories began to sound he same - well, that is the nature of packaged tours. As if to keep his passengers interested, Mr. Flaherty's comments often ranged beyond the facts in his report and revealed his own memories and perceptions of events.

His readable report (Exhibit 20063) is the guide for this historical road trip. Today we passed through the half decades 1965-1969 (20063.5), 1970-1974 (20063.6), 1975-1979 (20063.7), 1980-1984 (20063.8), 1985-1989 (20063.9); and 1990-1994 (20063.10).

The passengers on this occasion were every bit as well behaved as the tour leaders. The plaintiffs sat essentially silent, but for the scratching of their pens as they took occasional notes. There were no pit stops for objections! Justice Riordan was the only one who asked 'are we nearly there yet' - and he kept these inquiries or any suggestions to a minimum. Although he followed closely, he asked few questions and seemed to take few notes.

All in all it was an undramatic day on the road. It was, however, a long one. The effort was greatest on the witness, who commented mid day that it was like "giving three graduate lectures in a row." 

Hugging the middle of the road

Outside of the industry, I would think there are few Canadian scholars who have worked on tobacco issues as long as David Flaherty (his efforts date from 1988). But then again, maybe there are others like him, who have kept their work invisible from the public for decades, and who have not made themselves known in the multi-disciplinary academic networks of tobacco researchers.

For that reason, if no other, it was interesting to note how this researcher filtered the information he received, and how his understanding of developments in Canada compare with the views of other researchers who have worked in the same field over the same period of time.

As he spoke to the judge, the witness seemed to try to steer a middle road between the views of the companies for whom he has worked for two decades and what one might almost call common knowledge of the harmful behaviour of those companies over history, including the period of his contracts.

He spoke respectfully of many of the pioneers of tobacco control - like Dr. Norman Delarue, Barry Mather, Rachel Bureau, Marcel Boulanger. In positive terms, he described Gar Mahood and David Sweanor of the Non-Smokers Rights Association as activists in the style of the civil rights movements. He presented the adoption of tobacco control regulations as "progress."

He expressed no views against the measures eventually adopted by government. To the contrary, he derided the way airplanes were once divided down the aisle into smoking and non-smoking areas. He did not seem proud as a British Columbian that his province is the only one to allow cigarettes to be sold in pharmacies. He said that as "as president of an opera, I am glad we are not faced with that temptation [to accept tobacco industry sponsorship] in 2013" .

Colour commentary

Mr. Flaherty's oral testimony contained many personal insights that were not shared in his written report.

He identified the rise of smoking among women (which occurred during the period of increased awareness of health effects) as a matter of concern because "women should be smarter than males and should not be taking up the habit, or that women are better than men."

He noted that "feminist magazines like MS magazine were not paying attention to smoking issues," but did not refer to the long-established link between the presence of health stories in women's magazines with the volume of advertising placed in them.

He repeated his perception that governments and opinion leaders were concerned that reduction in smoking would cause difficulties to government budgets. "I cannot underestimate too much the amount the industry paid in taxes to pay for the total health establishment ...we are talking about significant money! Ministers of Finance were quite sensitive to the potential loss of income if people stopped smoking."

He perceived that "anti-smokers" were indeed against smokers. "The anti smoking activists, professional and otherwise, had decided that the only thing to do was to denormalize smoking by stigmatizing smokers and that became their goal."

He noted that in France lung cancer rates were lower than in Canada, but said it was "because they do not smoke the same kind of tobacco." (If this is common knowledge, it is not shared by those who have found the black tobacco formerly used in French cigarettes to be MORE dangerous, or who have concluded that the 20 year delay in high levels of tobacco use in  France compared with countries like Britain resulted in a time-lag in cancer rates.)

Mr. Flaherty suggested that he accepts that human frailties (not a term he used) may play a role in smoking. Yesterday, he attributed  the "gap between knowledge and belief" as a reason that "We all know you shouldn't talk in your cell phone while you're driving your car; some people do it." Today he explained that "people who engage in risky behaviour often look for a rationale for their behaviour."

Still in the news means it is still a problem.

Although his report is aimed at addressing the point in time when the health risks and addictiveness of smoking were common knowledge, in his presentation of events after the 1970s, Mr. Flaherty spoke more today of the social concern that this knowledge did not resolve the tobacco problem. He described a "great sense of frustration that somehow a solution had to be found to the smoking problem." 

It was the failure to resolve the problem, he said, that led to smoking getting so much media play. "From my point of view how could they give even more news coverage ... the fact that they do indicates how important the issue it is." 

A useful contribution

Close to the end of the day, looking nowhere near as tired as he would have been entitled to after more than six hours' concentrated effort, Mr. Flaherty revealed a researcher's pride in his 20-year effort. "I am pleased that this is going to be in the public record .... [I think it is] a useful contribution." 

Tomorrow, Mr. Flaherty's testimony will continue, including the cross-examination by the plaintiffs' counsel.

Tuesday, 21 May 2013

Day 145: Four Seasons later, David Flaherty returns

Fifty-three weeks -- a full four seasons -- have elapsed between historian David H. Flaherty's first appearance as a witness in the Montreal tobacco trials and his second appearance today as an expert witness for Imperial Tobacco Canada Ltd.

The long gestation of an expert report 

Some might think that a year is a long time to wait for a court appearance, but for Mr. Flaherty this is but a fraction of the 26 years that have passed since he began to prepare to testify in tobacco lawsuits.

It was his Western University school mate and RJR-Macdonald lawyer, Earl Cherniak, who recruited this University of Western Ontario history professor as far back as 1987.

"It took some winnowing down," Mr. Flaherty said today, "but gradually I learned that the three law-firms wanted to learn what Canadians had been told over time."  

For 20 of the next 26 years, Mr. Flaherty continued to be engaged in the research about "awareness" of tobacco's harms. (He downed tools between 1993 and 1999 when he held the position of Information and Privacy Commissioner of British Columbia).

He never once published his research findings outside of his reports to the tobacco companies.  He explained today that this was because "I knew that eventually I would get to be an expert witness." 

The Four Seasons Project

Although this trial has learned of the companies' early efforts to prepare against liability litigation (Exhibit 40),  one of the key documents -- an early report from Mr. Flaherty to the "Four Seasons Project" - has yet to become an exhibit.

It was in connection with this report that on Day 29 of the trial, Mr. Flaherty was asked to testify so that his report could be put on the trial record. Well, it turned out to be a little more complicated for that. First the plaintiffs had to overcome the companies' objections that the report was covered by various forms of legal privilege - a barrier overcome fairly quickly.

Two days later, Justice Riordan dismissed the objections of the companies, poetically comparing their concerns to the "falsely pious modesty" of Molière's hypocritical impostor, Tartuffe. He said it would be "absurd, and tend to make a mockery of the process" if he were not allowed to read the document "while everyone else in the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries," as a result of it being legally available on the Legacy web-site.

The second hurdle took a little longer. It took until last December before Quebec's Court of Appeal dismissed the companies' appeal of Justice Riordan's decision to dismiss the objections.

The third and final hurdle is yet to come. The companies have asked the Supreme Court of Canada for leave to appeal. At some point soon, a decision will be made to let the Appeal Court ruling stand or to allow a Supreme Court hearing on the issue. (You can follow developments here)

One hundred and four seasons later

Compared with his 1988 draft, the report prepared by Mr. Flaherty for this trial (Exhibit 20063) is an enormously expanded research effort which is tailored to the geography (Quebec) and time period (1950 to 1998) relevant to these class actions. From the original 45 pages, it has has ballooned into a 900 page effort which includes 10 appendices of summary text. It is based on a review of over 11,000 news reports.

The appendices include helpful timelines of key events, and summaries of news reports or other public material which are grouped by source.

Exhibit 20063.2 Part 2 Quebec Opinion 1950-54;
Exhibit 20063.3 Part 3 Quebec Opinion 1955-59;
Exhibit 20063.4 Part 4 Quebec Opinion 1960-64;
Exhibit 20063.5 Part 5 Quebec Opinion 1965-69;
Exhibit 20063.6 Part 6 Quebec Opinion 1970-74;
Exhibit 20063.7 Part 7 Quebec Opinion 1975-79;
Exhibit 20063.8 Part 8 Quebec Opinion 1980-84;
Exhibit 20063.9 Part 9 Quebec Opinion 1985-89;
Exhibit 2003.10 Part 10 Quebec Opinion 1990-94;
Exhibit 20063.11 Part 11 Quebec Opinion 1995-98

Same substance as last week ....

Mr. Flaherty's report is, like that of Mr. Lacoursière last week, essentially a a summary of news reports over almost five decades.

Some of his conclusions are also almost identical to those of last week's witness. By the late 1950s, he writes, "[I]t was almost impossible for an adult in Quebec, Francophone or Anglophone, Roman Catholic or Protestant or Jewish, urban or rural, not to be aware of the issues surrounding the health risks of smoking." And by the end of the 60s, "a resident of Quebec would have to have been living in isolation not to be aware that smoking cigarettes was a serious health risk."

But Mr. Flaherty goes one step further, finding that Canadians were likely to be the most informed of any in much of the western world. "In my view, Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds. Canada's unique makeup meant that health warnings and related information came from British, American, French, and Canadian sources."

Like Mr. Lacoursière, Mr. Flaherty included the public statements of the industry and others who objected to conclusions that smoking caused disease. These two expert historians also made the same decision to cite advertisements for stop-smoking medications as support for the idea that smoking was known to be addictive or habit forming.

Mr. Flaherty, too, decided to exclude most tobacco advertising from his review. Although it was in his initial proposal, he said it "was something debated back and forth with the lawyer clients."  He suggested that Canadian ads were less relevant than their U.S. counterparts.  "In Canada what I found was relatively boring advertising with the name of the product, the name of the company, a pretty picture of some sort."

... but very different style

Although the scope, structure and conclusions of Mr. Flaherty's report seem very much an English version of Mr. Lacoursière's, the differences between their courtroom appearances are vast.

ITL's latest
courtroom addition,
 Neil Paris
Some of the differences is apparent in the lawyers asking the questions. There was (another!) new face on the Osler/Imperial Tobacco bench this morning, Mr. Neil Paris.

Mr. Paris' steady flow of straight-up questions was matched by Mr. Flaherty's steady and straight-up answers.  Unlike the situation last week, the two men looked comfortable with each other and with the material they were discussing.

The reports of Mr. Flaherty and Mr. Lacoursière go beyond mere team-work. They drew on the efforts of historians like Professor José Igartua, who had once occupied the office next to him at the University of Western Ontario and who remains his friend. In addition to the graduate students hired by Mr. Igartua, there was Mr. Flaherty's own graduate student from long ago, John Swainger. (He now teaches at the University of Northern British Columbia.

In addition to the reports "spun" from microfiche and collected by this team, many of the clippings came from Imperial Tobacco's files and those of the CTMC.

Despite the work being spread to so many people over so many years, Mr. Flaherty exhibited his own command of the material in the report.

By the end of the day, it felt like 18 years had passed

It would appear that Mr. Flaherty will be asked to comment on all - or nearly all - of the 200 news reports which were selected as "highlights" from the material which formed the basis of his report. This is a slow process that verged at times today on the tedious.

With scarcely an interruption from the plaintiffs or a question from the judge - and no indication that they would pick up on cues to speed things up a little bit - the lawyer and witness began at the 1950 beginning and methodically worked down the list.

Although this was not a lively presentation and went over material that is by now well known, there was some information that was new to the trial, and some interesting perspectives put on record.

Mr. Flaherty spoke, for instance, of the political mindsets of some of the major figures, like Alton Ochsner (highly conservative) and Richard Doll ("at least a socialist"). he said that until the 1960s, many of those who raised the subject of tobacco's health effects were relegated to the fringe. "Most physician member of the establishment were smokers. They were reluctant to accept these theories that smoking caused lung cancer."

His presentation relied heavily on the Readers' Digest and its Quebec equivalent, Sélection as well as the brief news reports in Time Magazine's medicine column.

He showed the French version of the famous "cancer by the carton" story of 1952, as well as a series of reports by Lois Mattox Miller and James Monahan. He stressed that the large circulation of this magazine in that era, its inexpensive reprints, its editorial position against tobacco and its wide availability in barber shops and waiting rooms would have meant there was a high impact by these stories on public knowledge.

"They were on the side of the good guys as it turns out," he said of Reader's Digest in the 1950s. I wonder how the other guys felt about that comment....

It was in the 1960s, he said that Canadians received a "deluge of information" as reports on the Royal College of Physicians conclusions and the Canadian Veterans study were circulated. Government was changing its approach and in 1963 Judy LaMarsh became the first Minister of Health to initiate a government response to the tobacco problem.

But it was the U.S. Surgeon General's report in January 1964 that Mr. Flaherty said received an intensity of press coverage on tobacco and health that has not been seen before or since. "That's why I regard it as a seminal report for awareness of smoking in Quebec. By the mid 1960s it is everywhere. It is impossible for people in Quebec not to be aware, in one way or another."

And as for the industry denials contained in those reports? Mr. Flaherty said that these comments were "drowned out" by others' perspectives.

He also provided insights that were not included in his report. He said that "one of the great fears of the elite was that there would be a dramatic reduction in excise tax" if people stopped smoking. He said the Canadian tobacco companies "sat back" and "took a much less activist role" than the American industry, and that they were "listened to with respect" by government as a result of their contributions to government coffers. Who knew?!

As the day drew to a close, Mr. Flaherty's chronology was coming up to the end of the 1960s. Perhaps tomorrow we will pick up with events from the 70s that are only 40 years old.

After a weekend's serene reflection

As promised, Mr. Guy Pratte returned with additional concerns to express in response to Justice Riordan's case management decision last week that limited the defence proof to 175 trial days and disallowed the  scheduling of class members at the end of the trial.

Mr. Pratte was overtly deferential in tone in asking Justice Riordan to reconsider his decision today, as he had been on Friday. But the substance of his arguments - to my ears - had a threatening undertone, iin suggestions that Justice Riordan had erred and had displayed partiality.

He said that last week's ruling was "premature." There had been inadequate notice to the parties and a failure to hear the parties in respect that there had been abuse in the past and might be in the future. He stressed that as each defendant is being sued separately, and will be ruled on separately, each of these "fierce competitors" required the ability to set their own case. The court should not interfere in the manner or sequence of defence witnesses, he said.

He pointed to the fact that the plaintiffs had not been limited, and had extended the time they took to present their case from its original 87 days to over 135 days and had made mid-trial adjustments to their witness list. In case this point was lost, he later returned to the judge's "duty of impartiality."  (The court transcript does not well record the many times Justice Riordan gave the plaintiffs the hairy eyeball, hastening the departure of some witnesses, nor does it show the particular resilience of the lawyers in the defence's drivers seat to hints and suggestions sent to them from the bench.)

Mr. Pratte concluded by asking that Justice Riordan issue a revised management decision that requires the companies to prepare a revised witness schedule by the summer break. The defendants could set a target date, he said, and regularly update the court on how they were doing. 

By characterizing the ruling as a "cri de coeur that has not fallen on deaf ears,"  Mr. Pratte suggested the defence would make some adjustments, but I didn't hear anything that suggested that getting information from the companies about the months ahead would be any less like pulling teeth. And although he began by saying he did not object to a deadline being imposed, by the end of his speech it was far from clear how such a thing could happen under his proposal.

Stay tuned for more rounds in The Defence vs. the 175 day Trial Schedule.

Tomorrow and Wednesday, the testimony of Mr. Flaherty will continue.

Thursday, 16 May 2013

Day 144: Some unbelievable coincidences

The May long weekend has arrived. It is called Victoria Day in most parts of the country, but for the past decade it has been known as National Patriots Day in Quebec, where the tobacco class actions have just finished the first week of hearings on the "defence proof."

My bet is that very few lawyers active in the file will be able to enjoy the spring weather, but will instead be caucusing about how to adjust to the developments of this most interesting week.

The end of the line for witness, Jacques Lacoursière

During the first part of the week, there were more than a few expressions of sympathy/pity directed by the lawyers representing Rothmans, Benson and Hedges and JTI-Macdonald towards their first expert witness, the popular historian Jacques Lacoursière.

"An elderly person," "a man of 81 years," "he is tired," the judge was given as reasons to prevent certain questions being asked of him, or to interrupt the cross-examination with an overnight break.

Even observers from the health community expressed sympathy this morning at sight of this diminutive man with thin white hair sitting alone and seemingly lonely during the morning break. His stammering short replies and reliance on written notes made it sound like he might be suffering from a surfeit of "senior moments."

But as the day progressed, and the plaintiff's lawyers racked up several more damning statements from one of Quebec's better known historians, I could not help but feel that some sympathy should be extended to the companies who had this man appear as their opening act.

The continuation ....

Mr. Trudel resumed his cross examination from yesterday, maintaining a focus on shaking confidence in the witnesses' conclusion that in recent decades it was impossible for a Quebec smoker not to have known about the risks of smoking. 

In the course of answering these questions, Mr. Lacoursière revealed much about the influences that helped shape the report and those that were held off. In doing so, he left the impression that his own understanding of the social factors that influence knowledge and beliefs was weak, and that the influence on his report by historians hired by the litigants had been very strong.

Alone in his thoughts

Mr. Lacoursière is only one of 4 historians who have been hired as expert witnesses in this trial. (The other 3 are David Flaherty, Robert Perrins and Robert Proctor),

Mr. Trudel wanted to discuss with him his views on the conclusions of the other experts. The problem was that Mr. Lacoursière had decided not to read this material because he "had his own view" and "thought it would be better not to be influenced by others."

Nor had he read published reports on the historial reviews in other trials which supported "common knowledge" defence in tobacco litigation. [I am grateful to a reader for providing links to two such reports - 1, 2 ].

It is not very often that a man who is addressed as "professor" admits to not wanting to read the research of colleagues in his own field of study. And it seemed even more at odds with the statement in his expert report that he had since his student days "kept information on tobacco, every time I found it, because this affected the everyday life of people."

Justice Riordan also seemed perplexed. He commented that scholars often influence each other, and asked the historian whether it was just with respect to tobacco that he took this approach, and whether he generally read what his colleagues wrote.

"Je reste isolé dans mes pensées," said Mr. Lacoursiere. I am alone in my thoughts.

But not alone in the work

But a few minutes later, Mr. Lacoursière revealed that he was actively engaged with other historians in the course of this paper. In addition to the work of the UQAM historian (José Igartua) who he said had been recruited by the tobacco companies to supervise the collection of many thousands of newspaper stories, he had done his own recruitment of a University of Laval historian, Marc Vallières.

The information came to light when Mr. Trudel asked whether an attempt had been made to count the number of news articles on the topic in a given period, information which was suggested but not detailed in paragraph 61 of his report. ( Exhibit 30028.1). "Yes," replied the witness, identifying Mr. Vallières as the researcher on that project.

Marc Vallières,  historian and one of at
least 7 Quebec historians contributing to the trial 
This seemed to take Mr. Trudel by surprise - for as it turned out, he had requested such information from RBH counsel, Jean François Lehoux, and been told that it did not exist.

JTI-Macdonald counsel, Francois Grondin, stood quickly to declare that this other research was covered by litigation privilege. Other objections were made that it was not relevant.

Justice Riordan's exercise to untangle the facts that would let him rule on the objections created a mini-drama at the beginning of the day. Mr. Trudel read aloud (a little too quickly for these fingers to both transcribe and translate) Mr Lehoux's e-mail, which to these ears sounded like a denial of the existence of any such report. (Mr. Lehoux pointed the finger at Mr. Lacoursière for the content of the e-mail!)

The background provided by Mr. Lacourcière to Justice Riordan changed during its telling. At first, he said he had contacted Mr. Vallières in 2010, but when it was established that the threshold date in question was the completion date of his expert report (in December 2010), he changed his mind and said it was actually in 2011 that he had asked Mr. Vallière to conduct this work. Mixing up dates is easy to do - even for historians!

Seeing where the ruling was going, Mr. Trudel withdrew his request for the document. But the inconsistency between the explanations of the JTI and RBH legal teams -- was it litigation privilege? or something under Mr. Lacoursière's control? -- and the unexpected but convenient mix-up over dates set a tone of suspicion that lingered throughout the morning.

Common knowledge in a heterogenous society

Robert Proctor (Exhibit 1238) detailed substantive concerns about Mr. Lacoursière's approach, and the inadequacy of merely cataloguing news stories that did not take into account other factors that influenced individual and social views.

Philippe Trudel pursued this line of criticism as he asked the witness to reflect on differences in knowledge of Quebecers of differing ages and social classes, of different diseases and at different points of time. He pointed to other factors that might influence opinion, like the role of the companies in fuelling the "scientific controversy" and asked whether this might not have contributed to the reception of information about the risks of smoking. Mr. Lacoursière mostly side-stepped these questions by referring to his lack of competence in medicine or science.

Conveniently missing information 

The file of 20,000 news and other reports which formed the reliance material for Mr. Lacoursières report have been put on the trial record. (Cataloguing these documents is a daunting task, and a way has not yet been found for them to be made readily available to the public.)

It turns out that these were not quite as comprehensive a set of clippings as first presented. They failed to include years of reports from the right-wing working man's tabloid, Montreal Matin. Mr. Lacoursière today described the paper today as "very favourable to the tobacco companies." 

The articles which were not included in his reliance material but which were found by the plaintiffs team in the local library would have contributed little to informing Quebecers that smoking was dangerous, and would seem more likely to contribute to misinformation. One implied that tobacco companies were the ones with knowledge about smoking and health, another described a landmark study on Canadian veterans and lung cancer as "an insult to statistical sciences," and a third promoted the idea of smoking in moderation.

Another document seemingly missing from the reliance material was an editorial from a paper at the opposite end of the journalistic spectrum from the now-defunct Montreal Matin. In 1969, the Montreal Devoir  took an editorial position that dumped on the scientific evidence that tied smoking to disease. It talked up the idea that air pollution, urbanization or even changes in the level of fat in milk might be the culprit behind increases in lung cancer.

How was it that this article had been missed in his report? Mr. Lacoursière pointed the finger at Mr. Igartua, who had been recruited by the lawyers to supervise the review of that paper.

The cross examination by Bruce Johnston

When he stood to ask a short set of questions, Mr. Johnston maintained the same laid-back and unruffled tone that had been set by his colleague over the past two days.

But, if anything, his questions were tougher - and they were aimed not at Mr. Lacoursière's conclusions, but at his integrity.

Mr. Johnston began by asking the witness whether he had received any help in preparing his report. "No." Did you have notes from anyone? "No." Did he personally prepare the summaries of news-reports? "Yes." Was he sure? "Yes."  

So why was it that the summary phrase for a Reader's Digest article (a magazine that Mr. Lacoursière said he had personally reviewed) was word for word identical to that on the cover sheets that he said he had no hand in drafting? The two identical phrases were read to the court.

Bruce Johnston: Why is the formulation the same?
Jacques Lacoursière: It is the same formulation.
Bruce Johnston: Can you explain why?
Jacques Lacoursière: Probably the person came to the same conclusions
Bruce Johnston: In the same way?
Jacques Lacoursière: With the same words!

Yesterday, Mr. Lacoursière had been asked to explain how it was that stories from the Financial Post in the 1960s had been caught in his research net when that paper was not included in the study design. (He said that he had read them by chance 40 years ago, and had just happened to have kept them).

Lo and behold! Mr. Lacoursière had also described this ancient Financial Post story using the identical words that were on the cover sheet prepared by someone else.

As he sat down, Mr. Johnston put a rhetorical question on the record. "How is it that the words can be exactly the same as those which you put in your report." 

Francois Grondin, the lawyer for JTI-Macdonald, conjectured that the research notes might have been prepared after Mr. Lacousière's 2003 report. Mr. Lacoursière's reputation for honesty might be helped by the companies being able to substantiate the unusual sequence of research notes being drafted at the end of a project.  

And Justice Riordan's inquiry

The last question to this witness came from the judge, who wanted to better understand how advertising might influence "common knowledge" about smoking and disease. Mr. Lacoursière's final answer brought smiles to the plaintiffs' side of the court.

Justice Riordan: Are you saying that advertising has no effect?
Jacques Lacoursière. It could have an effect, but because I am not an expert I cannot say whether or not it does. But the manner in which advertising happens is very seductive. That's the least I can say.
Justice Riordan. I think we will leave it there.

Abuse process? Not me! or me! or me!

In his scathing ruling issued on Wednesday, Justice Riordan justifies his decision to limit the time permitted for the companies to present their defence proof to 175 days (125% of the time taken by the plaintiffs) by describing the companies proposal for 300 trial days as "excessive and unreasonable to the point of being abusive."

It would appear that these words stung, and that some professional reputations felt besmirched. Lawyers for the companies who have adopted the view that "we all hang together or we will surely hang separately" today expressed their unhappiness with being 'hanged together'.

Simon Potter (RBH) was the first to stand and ask permission to make "a speech." Mr. Potter makes lots of speeches in this trial, but most of them are extemporized. It was quite unusual to see him reading from notes, which he had by inference rehearsed and which he had timed to 6 minutes.

In a tone of voice more reminiscent of a solemn church reading than his usual flamboyant oratorical style, he asked Justice Riordan to withdraw the opinions expressed in his ruling, even if the time constraints remained in place. He said that an injustice had been done to Rothmans, Benson and Hedges, which "did not deserve a single one of the critical statements in your opinion."  He took a few swipes at what he saw as excesses from the plaintiffs team, and protested the idea that he might have to "squelch" his preference for an expert witness in favour of those chosen by his colleagues working for other firms.

He hinted that the ruling was causing him some trouble - " I am sure you will understand that my client is asking me some very difficult questions".

Suzanne Coté represents Imperial Tobacco, whose legal team insists on sitting at the front of the courtroom (as the default leader of the defence), and which demonstrably has used up most of the air time in objections, and most of the court time in arguments and appeals. "You were very harsh on the client, ITL" she said.

She was clearly stinging from the word abusive being recorded "'in a judgement of the Superior Court! ... Suzanne Cote does not accept it because Suzanne Coté is not abusive!" 

She claimed that the companies could have and would provided a more acceptable option. "We are reasonable. Let us talk and come back with something."

Guy Pratte (for JTI-Macdonald) said he wanted to be able to "calmly and serenely" review the opinion and perhaps discuss it next week. He expressed concerns that the ruling "levels against me and people from my team ...the most serious charge that can be levelled – that of abusing a court's process - a court to whom I owe my highest duty." 

When the court resumed after lunch, Justice Riordan promised that he "would take time to reflect - we will talk next week."

I think there will be a lot of eyes on this discussion. In his ruling, the judge seems to draw a line past which the manoeuvres by armies of lawyers hired by deep-pocketed clients become a misuse of public resources.

More on class definitions and other important words

In the afternoon, the court returned to tinker with the wording proposed by the plaintiffs to respond to Justice Riordan's concerns about ambiguity and clarity. For over an hour, the companies provided their new and renewed objections.  

During the discussion, Justice Riordan revealed that he does not consider cancer of the oral cavity to be included in the Blais class, and he urged the companies to see the advantages to their case of having the definitions tailored to the evidence at this point of the trial.

Monday is a holiday. On Tuesday, Mr. David Flaherty will make his second appearance at this trial - this time as an expert witness. 

Wednesday, 15 May 2013

Day 143: The countdown clock starts

There are days when observing the Montreal tobacco trials has been like watching the proverbial paint dry. And there are days when it has all the excitement of playoff hockey.

Minus the beer and the cheering, today was a Stanley Cup day -- everyone was sitting forward in their seat intensively watching events unfold. Yet arguably the biggest development of the day happened not in the courtroom, but in a ruling Judge Riordan issued mid-day.

Time allocation 

Justice Riordan played what he must hope will be the final round in his ongoing tussle to get a reasonable and realistic schedule from the tobacco companies on the presentation of their case. In today's "Case Management Ruling" he followed through with his threat to cut the time available to the companies to 175 days, and set some conditions on the sequencing of their witnesses. (This gives the defence about three more months to than the plaintiffs took).

His nine-page judgment had harsh words for the companies - and especially for BAT's Canadian subsidiary, Imperial Tobacco Canada. "The Court must now intervene to avoid what it considers to be abuses on the part of the Companies, and especially ITL." He cites the "excessive lengths" required to review documents resulting from ITL's persistent objections, the "triplication" of expert witnesses with "overlap and overkill."  

"The court is convinced that ITL, in particular, is attempting to prolong this trial unnecessarily by many months through a series of excessive and unreasonable measures."  ...  "The courts are not the servants of individual litigants but, rather, of the system of justice." Any bets on whether Imperial Tobacco refers this ruling to the Appeal Court?

It would be hard to maintain this was a victory for the plaintiffs in that they mostly sat silent during the protracted exchanges between the defendant companies and Justice Riordan over several months. But it certainly is a welcome development for them and their pocketbooks. Doubtless they agree with Justice Riordan's comment that "After 15 years... judgment must be rendered in these files."

 Or maybe the companies will decide to take even less time ....

After this week's debacle of their first expert witness, Mr. Jacques Lacoursière, the companies might not look so enthusiastically at the prospect of a long trial.

Beginning this Monday, it has been the companies turn to tell their side of the story. They opened with a well-known and highly respected historian, whose job it was to convince the judge that Quebecers have long had "common knowledge" about the harms of smoking and addiction to cigarettes.

But it started poorly, and went down hill from there.

Under questioning from his own client (RBH lawyer, Jean-Francois Lehoux) the witness repeatedly blanked. Even when fed the cue-phrase "with respect to common knowledge" ("au niveau de la connaissance populaire") at the beginning of each question, he rarely provided a reply that was not a verbatim repeat of his expert report (Exhibit 30028.1) or incoherent or irrelevant.

It was hard to connect this deer-in-the-headlights witness with a man who is well known and well loved because of his ability to communicate.

It was almost a relief yesterday when Mr. Lacoursière pleaded tiredness and the court adjourned for the afternoon.

Throwing in the towel on their first witness

This morning, Justice Riordan asked kindly if Mr. Lacoursière was feeling better, and the two men discussed the restorative powers of an afternoon nap.

But the companies apparently decided they would take no more risks with this witness. After 2 or 3 brief questions (during which the witness was again corrected for putting the term "beliefs/croyances" on the record when what really meant to say (cough) was "knowledge/ connaissance", RBH's lawyer, Jean Francois Lehoux, packed it in.

The court had been in session for less than 15 minutes - and about half of their first witness' report was left untouched.

The Cross Examination

It was up to Phlippe Trudel to begin the cross-examination. From his first question until the court adjourned mid afternoon, the courtroom had the particular electric feeling that comes during cross examination. (It is at these moments that the trial really resembles a spectator sport, and when you can virtually see the mental score boards each side is keeping).

Surprisingly perhaps, Mr. Lacoursière seemed more relaxed and more confident (less fearful?) when being questioned by this plaintiffs lawyer than he had when responding to his client earlier this week. He no longer sat slumped over his report, but stood more erect and mostly maintained eye contact with Mr. Trudel.

The conversational tone in which Philippe Trudel put his questions only slightly masked how tough they were.

He almost mockingly adopted the same pattern and patter that the RBH counsel had drilled down over the past few days. Just as Mr. Lehoux had done, he identified a paragraph in the report and then ask the witness a formulaic question about its significance "with respect to common knowledge." 

With his opponent asking questions almost identical to his own, Mr. Lehoux had very little ground to object, and indeed was unable to block any of Mr. Trudel's questions over the day.

Over the morning Mr. Lacoursière was asked questions that exposed his inconsistent approach to polling and smokers' beliefs. Oh, and they also drew attention to moments when it was clear that Canadians really didn't have a solid grasp of the dangers of smoking - like a 1991 survey conducted for a health charity that showed that very view Canadians could volunteer that tobacco use caused common diseases, like emphysema and asthma.

Why yes, he had included poll results in his report, and yes, he did interpret their importance as well as criticize their methodologies, but then again, he was "as an historian, not qualified to interpret polls." This answer sounded even more rehearsed than it had yesterday.

Nonetheless, it wasn't long before Mr. Lacoursière conceded that an historian could use polling while interpreting "common knowledge." It was just that he had chosen not to do so.

Other questions from Mr. Trudel exposed the limitations of his report on what smokers knew. Did smokers understand how important the risks of tobacco use were? Or how likely they were to get any of those diseases? By showing that he had no personal knowledge of the degree of risk for larynx cancer or bronchitis, Mr. Lacourcière effectly demonstrated that if there was common knowledge on these issues, it was not shared by all.

Still more questions looked at the methodology Mr. Lehoux had used -- why were some newspaper reports included when the papers themselves had not been included in the survey methodology? (Can one really have a 1963 Financial Post clipping on hand "by chance"?)  And in the absence of established or constant definitions for addiction ("dépendence") how did this historian come up with a meaning that he could apply historically?

The inference grew stronger that the hands on the pen of Mr. Lacourcière's report may not have been uniquely his own.


It was when Mr. Lacoursière admitted to having retinal problems and no vision in one eye -- and was unable to read an overhead screen on which the letters were blown up to at least 5 inches -- that Mr. Trudel began to explore the background to Mr. Lacoursière's report.

(With such bad vision, is it plausible that this witness reviewed 20,000 texts, let alone the microfiche files from which they came? Well, he said his vision was much better in 2001 when he commenced the research.)

It turns out that the man who directed research on the majority of newspapers which were reviewed (UQAM history professor José Igartua), had not been selected by Mr. Lacoursière, but had been chosen by the lawyers at Ogilvy Renault. (Simon Potter, now representing RBH through McCarthy-Tétrault was a partner at Ogilvy Renault at this time, and his client was Imperial Tobacco Canada).

Nor was there a close working relationship between the two men. Mr. Lacoursière spoke of difficulties reaching Mr. Igartua when he wanted to understand why files from the Gazette had not been collected after 1983. (After he finally was able to reach him, Mr. Igartua apparently did not know).

The pre-digested state of the "reliance" materials (the 20,000 documents from which Mr. Lacoursière had selected some 700 extracts) was made evident when Mr. Trudel displayed the cover sheets that accompanied each binder.

The research notes that were displayed on screen in the court (soon to be available as Exhibit 1541) look remarkably like the summaries in Mr. Lacoursière's chronologically ordered report.

Others may have had different impressions, but from my seat Mr. Lacoursière began to look less like an authority and more like a pawn in someone else's game.


Although no tobacco advertisements were included among the material Mr. Lacoursière considered relevant for "common knowledge", he had nonetheless  routinely included them in his files when clipping Actualité and the two other publications he had personally reviewed.

Mr. Trudel put a binder of such ads on the trial record (Exhibit 1541), and drew attention to a Vantage ad that addressed smokers "REMORSE" ("Remord"). (It is not yet available, but is in a similar genre to the smoke-smart ads discussed earlier in the trial).

Could such ads have an impact on beliefs about filters? Mr. Trudel wanted to know.

His answer had both Mr. Lehoux and the lawyer representing the company that made Vantage, Francois Grondin, scrambling to their feet."It's not important to me as an historian if a company tries to convince people that there is less danger in one product than another." said the industry witness.

Bad enough to have your witness get embroiled in the "beliefs vs. knowledge" debate -- but now he was commenting on the intention of tobacco companies to influence beliefs about harmfulness!

Mr. Lacoursière was sent out of the room while the industry lawyers attempted to block further questions on advertising. Having apparently run out legal reasons, Mssrs Grondin and Lehoux appealed to the unfairness of asking "a man of 81 years to comment on an ad he has never seen."  (Imperial Tobacco's lawyers were unusually silent throughout the day.)

This was the second time that an appeal to the witness' age has been made to block a question or comment from the plaintiffs side. Justice Riordan was not in the mood to tolerate such ageism. "Let me be clear. His age has NOTHING to do with the possibility of asking him a question and the professional requirements of his job. ... Je - rejette - les - objections! ".

Richard Pollay is endorsed - well, hypothetically at least

There was a hint that the last set of questions today may not have been planned far in advance -- Mr. Trudel found himself in the awkward position of asking Imperial Tobacco to provide a copy of his own history of marketing expert, Richard Pollay.

Mr Trudel wanted Mr. Lacoursière's opinion on Richard Pollay's views that advertising was designed to affect smokers' beliefs by providing "friendly familiarity,"  "reassurance" and "misleading" information.  If Mr. Pollay were correct, might that not affect common knowledge? 

Before these questions were answered, more objections had to be overcome - but this time they were from a witness who clearly didn't want to give his opinion and who said he didn't "like hypothetical situations."

Justice Riordan directed him to answer."You are an expert witness - he can ask you a hypothetical question. You are here to help me. You should accept the hypothesis and to respond to the question."

Mr. Lacoursière responded that for each of the three propositions - familiarity, reassurance, misleading -- there could indeed be an impact on common knowledge.

Tomorrow, Mr. Johnston will resume the plaintiff's cross examination. A discussion of the definition of class members is also anticipated.