Tuesday, 30 April 2013

Day 139: Mid-trial review - the plaintiffs speak

Despite the glory of the first few spring days to hit Eastern Canada, the key participants in Montreal's tobacco trial stayed inside -  nose-to-the-grindstone -- as they continued their intense discussion about whether or not the plug should be pulled on the two class actions that have kept Canada's big three tobacco companies in court for over a year.

The companies had their say yesterday. Today it was the plaintiffs' turn. Although virtually the entire plaintiffs team turned out, it was to Bruce Johnston that the responsibility fell to explain to Justice Riordan why ending the trial was not a good idea.

Justice Riordan has consistently declined to give the companies any comfort about this week's motions, and has certainly made no indications that these motions were likely to accomplish more than causing a few weeks' delay. Nonetheless, the mood in the courtroom over the past two days has been so somber and intense, that I came away wondering if it was possible that the curtain might indeed be brought down on the whole thing.

No one - and certainly not the judge - was acting as though this was a pro forma exercise.

I should make it clear that even after a year of faithful trial watching, most of what is said during legal arguments floats far over my head. It was no different today. Like jazz chords, the code in which these issues are presented (Bou Malhab! Biondi! rebuttable presumption!) is impenetrable to those like me who have not put in the time or who lack the brainpower.

But even those with a better grasp of the legal principles might have come away today thinking that the defendants and the plaintiffs appeared to have attended two very separate trials over the past many months.

It is not only substance that distinguishes the two sides of this court. This week's pleadings also showed the very different styles adopted by the sides - differences in rhetoric, preparation (no fancy bound plans of arguments for this side!) and even body language.

Bruce Johnston - one of the more physically energetic lawyers in the room - has been accused by Justice Riordan in the past of having "drunk too much coffee." Today he showed that he knows how to slow down and use silence to emphasize his ideas.

Following the full-throttle and highly-polished but very dry presentations by the three companies yesterday (think East European gymnasts), his more conversational tone (think Peter Gzowski) underscored the "let's get real" substance of his message.

He began by VERY slowly settling himself at the table directly facing Justice Riordan, arranging the microphone, his binder of notes and the five thick volumes of "authorities" that had been circulaed by the companies. He splayed his legs, as if extra balance might be needed as he settled in for the long haul, paused as if to ensure he had everyone's attention and then opened: "It's déja vu all over again." 

These motions, he said, were part of a pattern of delay and procedural abuse that the industry had used to drag out this and other trials. Since the trial began 15 years ago, they had witnessed this litigation strategy at play. We had no doubt that the industry would scorch the earth to prevent us from ever getting to trial - that they would scorch the earth before paying any victim."

As if to signal that the references that the industry had placed in its "authorities" were actually in support of the plaintiffs' cause, he relied on these references to make his points. The first was an by California law professor, Robert Rabin, (A sociolegal history of the tobacco tort litigation).

"It's fascinating that they wanted you to read this – I want you to read this," he told Justice Riordan. He read a passage that described how the industry set out to "as a first line of defense, spare no cost in exhausting their adversaries' resources short of the courthouse door."

Seeing today's motions in the context of a deliberate strategy to exhaust their opponents' resources, he pointed out that it was "extraordinary" that the companies were now appealing to a section of the procedural code designed to protect against abuse of process.

Straw Men and Red Herrings

The companies had hit hard at the idea that the proof against them could not sustain a judgement. Bruce Johnston challenged this view from several angles.

Firstly, he rejected the notion that smoking was an intermediary to disease. "Smoking doesn’t just cause disease," he said. "It is a disease. These companies sell the disease. They sell the disease to make profits."  In this context, there was no need or place for the idea of a "wrongful inducement to smoke."

The manufacture of cigarettes was in itself a harmful act. If you don’t make an addictive toxic product, would anyone buy it? Would anyone die from it? ... Their whole argument is as if it [the harm to smokers] has nothing to do with the cigarette coming into being."

He disagreed with Imperial Tobacco's position that there were any time limits (prescription) on either punitive or compensatory damages. It's not as if the harm had ever stopped, he pointed out. "The obligation to inform is a continuous obligation. The obligation to inform runs every day. Until you discharge it, it hasn't been done. Prescription will not start running until they execute their legal obligation."

Yesterday, Cecilia Létourneau's presentation at the small claims court in the late 1990s had been cited by Imperial Tobacco. Today, Bruce Johnston referred to the same occasion to put on record the denial by Imperial Tobacco of the addictiveness of cigarettes. (This was a few years after the addiction warning appeared on cigarettes). "The partner at [ITL's lawfirm] Ogilvy Renault - Maitre Rodrigue - told the court that smoking doesn’t cause addiction and that she had three boxes of documents to prove that." 

He denounced the view of addiction that had been presented by Simon Potter yesterday - that addiction meant one could not quit - as a straw man.  "If an alcoholic ever stops drinking, does that mean he wasn’t addicted?" "Did anyone ever stop injecting heroin?"  

He also criticized Mr. Potter's view that it was up to smokers to quit - and his suggestion that Mr. Blais was responsible for his own misfortune as had seen the health warning thousands of times, and had kept on smoking even after being advised to stop by his doctor.

Mr. Johnston compared smokers to people caught in a trap, and said it was morally unacceptable for those who dug the trap to blame those caught as not being strong enough to climb out.

When pushed by Justice Riordan to explain civil liability in the context of this analogy, Mr. Johnston said simply. "Digging the trap is a fault. Failing to inform is a civil fault. Being in a trap is a prejudice. Having a disease is an additional prejudice."  

He argued that causation in law is established not as in science, but on the balance of probability. In a case like lung cancer, it was reasonable to infer a causal link when the probability has been established. "If you can have causality when you slip and fall," he said referring to a recent case where Montreal streets had not been salted "then when you have the Mount Everest [of causes of lung cancer], we can rely on causation."

On the issues of whether an amount for compensation could be calculated on an average basis for smokers,  whether punitive damages could be assessed autonomously from compensatory payments, or whether causality could be addressed without individual claims or assessments, Mr. Johnston also provided a very different view of the law than I heard yesterday. He cited recent cases where courts had found a way to make these work -- some of which, like Biondi and Brault-Martineau, his own firm had managed).

Justice Riordan offered his own reservations about having to consider individual claims: "My beard is going to be a lot greyer if that happens!" 

Bruce Johnston challenged the idea that the case would have benefitted from the testimony of individual class members. "The idea that we should have brought members is wrong. That would not have helped you ... no matter how many members we brought to court." He said on the basis of he evidence provided that the judge was in a position to establish a significant average and deciding what damages should be in either case.

His presentation of the plaintiff's position took most of the morning.

During the afternoon, as the companies responded to Mr. Johnston's presentation, Justice Riordan engaged in more active debate/discussion, and used his body language to indicate where he didn't really buy some of the arguments presented. With Guy Pratte he debated the interpretation of harm caused in a certain murder suicide case, and pushed Suzanne Coté to accept the concept of a "continuous fault."

The legal onion seemed to be cut finer and finer as the day wore on.

Bruce Johnston was given the final word. He ended by challenging Simon Potter's characterization of their case and referred to the opening arguments that were presented over a year ago. 

"Mr. Potter understood our case on opening day. He said then that we were seeking a judgement that will ban the sale of cigarettes. That is and always has been part of our case."

Tomorrow the last of the mid-trial motions will be heard. They include Imperial Tobacco's request to have document destruction removed from the trial, as well as their request for requirements on the plaintiffs with respect to identifying evidence.

Monday, 29 April 2013

Day 138: Mid-trial review - the industry's perspective

Today's session at the Montreal tobacco trials was dedicated to the defendant tobacco companies' presentation of their much-ballyhooed motions of "non lieu."

 From 9:30 this morning until well after 4:30, the three companies tried to convince Justice Riordan that he had just wasted the last few years of his life.

Five months in the making

As long ago as November 13th, the companies had signalled that they would be asking the judge to dismiss both Quebec class action lawsuits after the plaintiffs' had finished presenting the evidence in their case. (This stage arrived when the proof was "closed" last week).

The judge repeatedly expressed strong reservations about such an unusual mid-trial hearing (and the delay it could cause to the trial) and even offered the plaintiffs the opportunity to provide procedural objections. But when that side decided to let it roll, the judge too seemed to accept the idea and today's hearing became fixed in the scheduled as a half-time show.

Today's motions have emerged as a kind of milestone in the trial. Until this half-time show is over, it seems, nothing else - like the scheduling of the defence witnesses - would proceed with any obvious show of good faith or cooperation.

Three companies, three requests, one goal

Of the four motions circulated earlier this month, three were discussed today:
* Imperial Tobacco's Motion for Dismissal and other pre-defence remedies,
* Rothmans, Benson & Hedges' motion To dismiss these proceedings as improper because of plaintiffs' unreasonable use of the class action procedure and
*  JTI-Macdonald's mostion to Dismiss and decertify.

While each request has distinctive elements, they all are nominally aimed at putting an end to trial before it goes any further. They rely on the powers given to Justice Riordan under Article 54.1 of  Quebec's Code of Civil Procedure.
54.1. A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned. 
The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. 
Imperial Tobacco: The clock has run out

Suzanne Coté took the first run at trying to talk Justice Riordan into pulling the plug.  While setting her eyes on the big prize - the dismissal of the two suits -- Imperial Tobacco has identified some consolation prizes it thinks it is owed -- like an end to the prospect of punitive damages. (The formal list of demands appears at the end of this post). 

She began with the central argument of all three companies -- that it was not enough to show that the companies acted in wrongful ways because the link between this behaviour and the impact on any smokers must be firmly established. "Someone has to have smoked because of the wrongful action of the companies to be considered to have been harmed," she said. 

Moreover, the clock has run out on any claims. "Prescription" is the way the Quebec Civil Code addresses statute-of-limitations issues, and Imperial Tobacco considers that people who became sick  before November 19, 1995 (three years before the Blais suit was filed) or who didn't file a claim of addiction before September 30, 1994 (one year after the addiction warning appeared on packages) have missed the boat.

She was not fazed by measures which specifically remove such time-limitations and are included in Quebec's Bill 43, the Tobacco-Related Damages and Health Care Costs Recovery Act (clause 27). (Her client is fighting the constitutionality of that law in another case). 

Justice Riordan pushed Ms. Coté to share her views on whether Bill 43 should be interpreted in a "restrictive or liberal way" during the time the law was under challenge. After conferring with the other companies, she not unexpectedly said interpretation should be "very restrictive." As she said this,  her colleagues chimed in that approach was justified because this 2009 law "removed the right to certain defences." 

Ms. Coté singled-out actions of the representative class members, the late Mr. Jean-Yves Blais and Ms. Cécilia Létourneau, which she said justified the dismissal of the case against her client. Mr. Blais had never smoked cigarettes made by Imperial Tobacco and Ms. Létourneau had explicitly waived her right to seek any other damages from Imperial Tobacco when she went to Quebec's small claim court to recover the cost of her nicotine patches. 

"What would that mean - if Mrs. Létourneau were dropped from the case?" asked Justice Riordan. "Her claim would be dropped – and so would the whole class," replied Ms. Coté. 

Rothmans, Benson and Hedges: The plaintiffs' deliberate and fatal decisions. 

It was almost noon when Simon Potter began to present the arguments of his clients which strongly overlapped those of Imperial Tobacco. 

He pointed to what he described as major holes in the evidence which was put on record over the past  year. "The evidentiary gaps are fatal to the plaintiffs case, or at the very least to identifiable slices," he said. "And they are intentional. The plaintiffs intended to leave you with these evidentiary gaps." 

"It would be inappropriate to require defendants to come and defend themselves against evidentiary claims that don’t really do the job. If they don’t do the job, we can shut the thing down now or at least shut down identifiable slices." 

Mr. Potter drew attention to the plaintiffs' decision not to have any of the class members testify, nor to put any individualized information on the record. He implicitly acknowledged that the companies did not look very good after the first year of trial, but characterized the documentation of industry behaviour as a "Royal Commission of Inquiry" as opposed to a civil law suit. 

Even the industry's admissions were not relevant, he stressed, as they were not linked to harm experienced by any individuals. "The companies admit that it can be very difficult to quit," he said, "but they [the plaintiffs] did not sue for difficulty. They sued on the basis that they [the smokers] were incapable - unable - to exercise a choice."  

He asked Justice Riordan to issue a declaration that the proof on addiction had not be made, and to close the door on any further evidence being put by the plaintiffs when they cross-examined industry witnesses.

Mr. Potter adopted a mocking tone towards addiction and the claim of loss of self-esteem. "It goes against my grain that every single smoker has no self-esteem - that there isn't a single egotistical smoker," he said. If smokers as a class (and without information on individuals) have a claim from addiction, "then chocolate eaters have a claim and coffee drinkers have a claim."

"There is no evidence that it is different than trying to lose weight. I am in charge of my own weight. I know that," said Mr. Potter, who has previously used his (not very over) weight status to make a rhetorical point. 

Towards Mr. Blais he also levelled some sharp reflections. He reminded the court that Mr. Blais had started to smoke in 1954, but that "there is not even an allegation, let alone proof, that he started to smoke roll-your-owns as a results of something the defendants did."  

Mr. Potter left the impression that he saw Mr. Blais as the architect of his own misfortune as he continued to smoke even after the watershed decisions of the 1964 Surgeon General's report and the appearance of warnings on packages. "In 1972 the first warnings come out -- what does Mr. Blais do? He goes right on smoking... In 1987, a doctor told him to stop smoking - he went right on smoking two packs a day." As if to underscore this deficiency in Mr. Blais, Mr. Potter stressed "The people around Mr. Blais were quitting. " 

What's more, Mr. Potter said the law would agree that the responsibility belonged to this smoker. "The Civil Code says there is no liability for an injury that the plaintiff could have avoided." And without Mr. Blais's testimony, "the court must draw an unfavourable inference."

Mr. Potter returned to his theories of government and social consensus to argue that any form of punitive damage should be precluded. Such punishments are meant to deter, he said, but suggested that deterring the sale of tobacco is not on the cards. He pointed to the licensing of many levels of the tobacco trade as evidence that "Every government wants the sale of the product."

"What is the point of punitive damages to deter something that happened 50 years ago? It was a different world - certainly not like today." 

JTI-Macdonald: An annulment, please. Or at least break up the class

Guy Pratte presented his arguments in the last hour of the day.

He reinforced the view of his colleagues that the plaintiffs had failed to connect the dots between any wrongdoing of the company and any harm experienced by any individuals. He gave this missing link a name -- "wrongfully induced smoking."

"Whatever the statutory source, there has to be a link made between the alleged action and [the harm]. Otherwise we are not in a civilian system, we are in a penal system or an administrative system."

He stressed that epidemiological evidence was irrelevant and insufficient, a flaw which he said was also reflected in Justice Jasmin's decision which certified the class action. "For this reason as well," JTI-Macdonald's motion reads "the authorizing judgment must be revised and annulled."

Having identified the problem of lack of evidence on "wrongfully induced smoking", Mr. Pratte offered Justice Riordan an alternative way to manage the issue. He suggested that the class actions splintered and that individual's be allowed to seek damages in a post-Blais-Létourneau world. (This sounds remarkably like the post-Engle environment in Florida).

The mid-way mark of the mid-way mark.

Throughout the day, Justice Riordan's face reflected intense - and somber - thought. The importance of the discussion was reflected in high attendance on both sides of the bench. There were many moments when the whole room seemed to be scowling in concentration.

Tomorrow, the plaintiffs will respond to the motions. Imperial Tobacco will throw up some additional concerns (they want the document retention issue to be dismissed and have some other requests for direction). The discussion of these motions may spill over into Wednesday.

The requests:

Imperial Tobacco 
DISMISS the Blais/CQTS and/or Létourneau class actions;
DISMISS the Blais/CQTS class claim with respect to all members having been diagnosed with a tobacco-related disease prior to November 19, 1995;
DISMISS the personal claim of Plaintiff Blais;
DISMISS any personal claim by Mrs. Létourneau;
DISMISS the Blais/CQTS and/or Létourneau class and personal claims for punitive damages;
DECLARE that there will be no collective recovery of non-pecuniary compensatory damages;
DECLARE that the Plaintiffs have not met their threshold burden of establishing there was any duty to preserve documents at the relevant time (between 1990 and 1993);
DECLARE that destruction of documents cannot give rise to a claim for damages in this case;
DECLARE that destruction of documents cannot give rise to an adverse inference in these circumstances; and
ORDER that there is no need to hear any further evidence on the issue of document destruction.
Rothmans, Benson and Hedges
DISMISS Plaintiffs’ actions;

ANNUL the judgment of February 21, 2005 of the Honourable Pierre Jasmin;
DISMISS the Representative’s claims and both Class Actions;
ANNUL the judgment of February 21, 2005 of the Honourable Pierre Jasmin with respect to the Létourneau class action only, providing other relief by amending the judgment, as deemed appropriate, for the Blais class action;
AMEND the judgment of February 21, 2005 of the Honourable Pierre Jasmin by way of an order stating the following:
(a) that the issue of causation insofar as it concerns wrongful inducement shall be dealt with individually;
(b) that the issue of causation insofar as it concerns aetiology of disease and dependence shall be dealt with individually;
(c) that the issue of damages in all forms shall be dealt with individually.
STRIKE all conclusions in the Plaintiffs’ claims seeking collective recovery.

Tuesday, 23 April 2013

Day 137: Proof closed.... (in secret!)

Have you ever experienced being called away from the game just as your team was set to make an important play? Or having your baby's first steps witnessed by your mother-in-law while you were stuck in the laundry room?

If so, you will know what it felt like to be a faithful observer to the Montreal tobacco trial, only to have the court room door shut firmly closed at the key moment when the plaintiffs reached an important milestone.

An interrupted 'relâche'

The trial has sat only sporadically during the month of April (the French term "relâche" seems a more dignified term for downtime than "a break"). Today's session had been scheduled to allow former Imperial Tobacco president, Jean-Louis Mercier, to return to substantiate certain documents. Mr. Mercier, it would seem, is a snowbird, and had not returned from wintering in Florida until this past weekend.

As it turned out, however, Mr. Mercier's services were not required. Instead, an agreement had been reached between the plaintiffs and Imperial Tobacco to allow the documents in question to be put on record without this witness.

Without a witness, the courtroom was in "informal" mode this morning as the teams returned to put these documents -- and a few other final touches -- on their proof against Canada's three large tobacco companies.

A smiling team

Today there was an unusually even balance between the number of lawyers representing the tobacco companies and those representing Quebec smokers.

Because the business of the day was relatively routine, the industry legal teams were much reduced - about two per company. On the other hand, virtually all of those who have appeared in court on behalf of the plaintiffs' combined team came out to witness the historic moment as this stage of an enormous trial effort was completed.

Looking relaxed and happy on the plaintiff's side, wearing much less formal garb and far broader smiles than in their official photo taken outside the Palais de Justice last year, were (left to right) André Lespérance, Pierre Boivin [Marc Beauchemin, shown above was not in court today], Gabrielle Gagné, Philippe Trudel, Bruce Johnston, and Michel Bélanger. Gordon Kugler, who is not shown in the group photo, also marked the occasion with a visit to the courtroom.

A day of dotting i's and crossing t's

Ms Gagné managed the first set of finishing touches, which were:
* the introduction (or upgrading in evidentiary status) of documents that Mr. Mercier had been personally involved with (including some 200-plus pages of minutes from CTMC meetings)
* the removal of the "reserve" status from some exhibits following the completion of required paperwork (the sending of "403" notices)

These items were dealt with very quickly. And, as is often the case in this trial, the lack of fanfare is at odds with the importance of the material being put on record.

For example, two exhibits introduced today are the minutes of many CTMC meetings over many years. The several hundred pages of records will soon be available on the plaintiffs' database as Exhibits 433H and 433I. And there are a large number of always-interesting market research reports among those documents converted from "reserve" (i.e. secret) to non-reserve status.

Soon these will join the 3000 or so other exhibits which the plaintiffs have generously made that are publicly available in word-searchable form.

Privilege and death

The last of the issue on the agenda for today was a little less straightforward, and soon resulted in the court-room being cleared of observers (all three of us!).

Under discussion was a document from Imperial Tobacco about which very little has been made public to date.

We know that it was among a series of documents for which "solicitor-client privilege" claims were made before Justice Blanchard before the current trial opened. (Imperial Tobacco's counsel explained last  year that this other Superior Court judge had been brought in to rule on the privileged documents in order that Justice Riordan "not be contaminated." by seeing the material.

We also know that Justice Blanchard ruled that the document's privileged status hinged on whether or not Imperial Tobacco could produce a final version, and do so within a prescribed time limit. The deadline passed, but the document which they produced as the 'final version' (Where We Stand, Exhibit 34) was apparently different enough to make the plaintiffs doubt that it was indeed a related version. Did that mean the deadline had been passed? That Justice Blanchard's ruling should kick in?

Justice Riordan was asked last September to wade in on the process part of the question, but without looking at the two documents in question. He was told that Dr. Stewart Massey, who was scheduled to appear later on the trial for the defendants, would be able to explain the relationship between the contested document and the one produced - "Where We Stand."  He decided that he would save time and trouble (and not "waste the Court of Appeal's time) by suspending the procedural questions until the whole issue could be looked at when Dr. Massey testified.

It was not to be. Stewart Massey died earlier this month. Justice Riordan was to make the call without further evidence.

For the third time, Imperial Tobacco requested that the hearing go "in camera" while their privilege or confidentiality issues were being discussed. For the third time, Justice Riordan granted this request.

This time, however, no one remembered to allow those of us from the peanut gallery to come back in before the ruling was rendered.

The doors were kept sealed as the court moved to the last item of business for the day - the declaration that the proof was closed. And so it was that I missed the big event.

As they headed for the elevators, the plaintiffs' lawyers smiles confirmed the news that Justice Riordan had again ruled in favour of evidence being put on the record. (The document will not be made public, however, until the issue of an appeal is resolved).

The next hearing will be on April 29th (and possibly 30th) during which time the motions of "non lieu" will be argued. Also on the agenda will be further discussion of the scheduling of defense witnesses. After that? Who knows....

Friday, 19 April 2013

David Stewart's first presidential report.

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

As the Montreal tobacco trial coasts to the end of the "plaintiffs' proof," a miscellaneous assortment of documents have been put on the trial record. Many of them are worth a second look.

Exhibit 1485.15
Among those deposited earlier this month were short corporate histories written by each of the defendant companies at the request of Justice Brian Riordan. These documents can be found as Exhibit 40000 for JTI-Macdonald, Exhibit 30000 for Rothmans, Benson and Hedges and Exhibit 20000 for Imperial Tobacco

But don't look to these court filings for anything other than dry dates and dull accounts of reporting structure!

Cast your eyes instead on a colourful history of Macdonald Tobacco written by one of its principal actors during a pivotal moment in the history of the company - and a key moment in public health policy development.

The time was January 1969. The author was David Stewart. The moment was the very day this 49 year old man had been promoted to the position of president the Macdonald Tobacco company. It was almost exactly a month after the death of his father, Walter Stewart, who had ruled the company for 50 autocratic years.

Exhibit 1485.15 is David Stewart's first "report of the president" in which he reflects on the state of the company at the moment he took control of its helm. In discussing the "Past, Present and Future Aims of the Company" he records the challenges he saw facing the company and his leadership.

Macdonald tobacco factory
at its official opening in 1878.
135 years later, it is still
the manufacturing
base for JTI-Macdonald
He begins by recording the history of the firm, noting that he is only the third company leader in over a century."Since its beginning one hundred and ten years ago, there have only been two captains, Sir William [Mcdonald] during 60 years, and WMS [Walter Stewart] for 50 years."

He writes with pride of the initial success of the company created to manufacture and sell plug (chewing) tobacco. Chewing tobacco is a neglible part of the tobacco market in Canada today, but in those days it was enough to keep this company and its 1,500 workers fully occupied. "The amazing point is that in 20 years he [William Macdonald] was able to build the very large and very well equipped factory on Ontario St, our present works."

David Stewart admired the philanthropic mindset of the founder, which resulted in most of the company's profits being distributed to English Quebec institutions. "By a singleness of policy, McDonald succeeded, and by the turn of the century became Sir William Macdonald, and built his own monument in McGill's three buildings, Engineering, Chemistry and Physics, followed by the entire Macdonald College."

The death of William Macdonald in 1917 coincided with the beginning of a new business environment and a changing tobacco market. "World War I brought new income and business taxes, and new habits of cut tobaccos (Sir William had only made plug) and the cigarette" he reports.

Soon after, the company began to manufacture cigarettes, and oral tobacco soon faded from view. "We stopped making plug tobacco in our 99th year, still with over 1/3 of the business. But it was declining surely and swiftly, so it was a sound decision in the long run."

David Stewart saw World War II as the source of the company's success."During the war our troops appreciated the qualities of Export - by the war's end we had about half the military market, and when the troops came back this brought our domestic figure up each year to the maximum of 36% of the Canadian market in 1954." 

Macdonald's war-time efforts included encouraging Canadians to send cigarettes to the troops -- "smokes from home". A series of vintage clips for such war-time efforts can be seen here.  About 19 years old at the outset of the war, David Stewart did not enlist, but was instead conscripted into the family business, where he served as works manager for 30 years until his father's death.

David Stewart - 1968
Exhibit 540
In his analysis of the post-war environment, David Stewart blends business competition, health concerns and his father's changed behaviour. "After the war, in the face of fantastic competition of Imperial, Rothmans, and B&H, Macdonalds began to slow down. We did not keep competitive with regards to brands, merchandising, or factory equipment. And WMS [Walter Stewart], who lost his competitive spirit in 1958, took sick in June of 1968. This date is the point at which the anti-cancer campaign really began."

His father's death was only one of the destabilizing events of 1968, David Stewart writes. "Cigarette smoking has been linked to lung cancer since the 1950s - but in November 1968 the Canadian government launched a major attack. To Macdonalds, it was like Pearl Harbour."  In the government's first list of tar ratings, Macdonald cigarettes had come out worst. "All the other companies had been planning for this, all had cigarette brands in the low tar area."

Immediately following what he saw as a surprise attack on his business, David Stewart had sought a meeting with the Minister of Health, during which he tried to discourage further such tests by appealing to philanthropic role the company had played "I met the minister before Christmas and assured him that if we had donated millions over the past few years to McGill, now we would have to begin a new research policy "what colour package of cigarettes do you prefer" instead of McGill's Research Biology building!" (A similar message was conveyed in his letter to the Minister requesting the meeting - Exhibit 4010)

David Stewart articulates his challenge: "So we began 1969 a bit shaken by the government action, harassed by a terribly powerful and active competition and with our whole organization a bit rusty, dusty and not too well trained."

His solution is to "set long range sights, a 5 year plan." He identifies the need to modernize the plant, use sheet tobacco to lower the tar content, develop king size cigarettes and other brands oriented to women, start selling pipe tobacco and cigars... and to diversify.

"We need 5 years to consolidate our position as the second major company in the Canadian Tobacco Industry" he concludes 

At the end of the 5 years, however, David Stewart and his family were getting out of the tobacco business. At the end of 1973 the business was sold to RJ-Reynolds. Reports of the amount paid vary -- from $75 million (according to JTI-Macdonald's filing with this court - Exhibit 40000) or $50 million (according to contemporary news reports).

The proceeds were reported to have been assigned to the Macdonald Stewart Foundation for the continuation of its philanthropic efforts. Almost 30 years later, the Macdonald Stewart Foundation's assets are still over $45 million.

The next hearing of the Montreal tobacco trial is on April 23rd.

Note on accessing document
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.

Tuesday, 16 April 2013

Denis Coté's wonderful archive of tobacco promotions

An important set of exhibits in the Montreal tobacco trial has recently come on line on the plaintiff's valuable database of exhibits  -- a selection of photographs taken by Denis Coté, the former editor of Info-Tabac.

du Maurier Jazz on
St. Catherine Street, 1988
Exhibit 1513.7
As he describes it in the affidavit prepared for the plaintiffs (Exhibit 1500), Mr. Coté routinely collected photos of sponsored events in Montreal, Sorel and Three Rivers in the mid 1990s. Looking at these photos today is a reminder of how Montreal's festival season was a veritable billboard for smoking!

Curiously, these images were never shown in the courtroom.

An agreement was reached between the plaintiffs and the defendant companies for Mr. Coté's collection to be quietly put on the record on April 2nd. (The manner in which it was introduced also meant that the details of the exhibits do not appear on the transcript).

Justice Riordan has lived in Montreal for decades and appears to have an excellent memory. But even he would have likely been struck by the "blast from the past" produced by these images - most of which date from the years leading up to 1998, when this lawsuit was filed.

The entire collection of photographs offered by Denis Coté is not yet available. By inference, it will span exhibit numbers 1500 to 1524. In the meantime, those that are available are a reminder of how much Montreal has changed since this lawsuit began.

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

du Maurier Jazz Festival, du Maurier Arts, du Maurier exterior ads1511.1, 1511.2, 1511.3, 1511.4, 1511.5, 1512.1, 1512.3, 1512.4, 1513.2, 1513.3, 1513.4, 1513.5, 1513.6, 1513.7, 1513.8, 1514.1, 1514.2, 1514.3, 1514.4, 1514.5, 1514.6, 1514.7

Belvedere Rock music
1509.1, 1509.2, 1509.3, 1509.4, 1509.5, 1509.6

Craven A - Just for Laughs
1510.1, 1510.2, 1510.3, 1510.4, 1510.5, 1510.6, 1510.7, 1510.8, 1510.9, 1510.10, 1510.11, 1510.12, 1510.13, 1510.14, 1510.15, 1510.16, 1510.17, 1510.18, 1510.19, 1510.20, 1510.21

Benson and Hedges Fireworks
1508.1, 1508.2, 1508.4, 1508.5,

Export A Extreme Sports
1517.1, 1517.2, 1517.3, 1517.4, 1517.5, 1517.6, 1517.7, 1517.8, 1517.9, 1517.10, 1517.12, 1517.13, 1517.14

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.

The next hearing of the Montreal tobacco trial is on April 23rd.

Friday, 12 April 2013

Day 136: Justice Riordan shows his trump cards

Yesterday's session at the Montreal tobacco trials ended with the judge in charge of these two massive class action suits responding to the defendant tobacco companies proposal to keep the trial going for a further two years.

Not in my lifetime! was his clear message.

A review of the bidding

Earlier in the week, after the judge's considerable prodding over many months (including formal direction to produce a detailed witness list), the companies had produced a schedule that openly challenged his preferences for how the next phase of the trial would be managed. With a ballooning list of witnesses, lengthy breaks and weeks' devoted to routine matters, they suggested they were settling in for a long time, if not a good time.

All that to say, they played their hand in a way that required a response from the bench. (Something more to include in appeals to higher courts, perhaps?)

Before the court broke for almost 2 weeks, Justice Riordan signalled that he was willing to use his power to curb the length of the trial.

"I have looked at scheduled proposed and I note that there are approximately 306 days of hearings over 2.5 years. From my position as an administrator of the system of justice in Quebec, I have a problem with that – I find that it is an excessive use of court resources ... I don’t see the justification for 306 days of hearings on the defendants' side.

I am seriously considering restricting you in the time I will hear you in defence. My initial sense is that 25% more time than the plaintiffs took – some 175 days would be more than ample to make the case in a reasonable and efficient manner.

I am seriously considering imposing that restriction the basis of article 4.1 of the [Quebec Code of Civil Procedure] and article 10.5 and in the interests of a proper administration of justice and court resources."

I will hear you on [April 23rd, the next scheduled day of the trial] on the subject. I will listen to both sides. I am doing this of my own accord at this stage. I think I have a duty to do it."

The ball is once again in the defendants' court. They have two weeks to figure out their next play!

Defining the classes

Before he issued this shot across the bow, Justice Riordan oversaw a formal discussion on the plaintiffs' proposal to change the definition of the proposed classes.

It has been clear for some time that Justice Riordan is not fully satisfied with the class definition that were authorized eight years ago by Justice Jasmin, and on numerous occasions he has indicated that he wanted language that gave clearer parameters.

The exercise of redrafting the classes was clearly not that straightforward, and even in the last few days there were apparently a number of modifications to the plaintiffs' proposal.

The e-mail exchanges that trace the text revisions are out of my sight, but Simon Potter was in full flight this morning as he expressed his outrage at receiving last-minute revisions. He was particularly irked that he had received a text when he was in a taxi on his way to court. (Perhaps if he had a dedicated van, as the Imperial counsel do, he would have been less bad-tempered about it).

Translations of the versions discussed today, as shown on the overhead screens, are shown below in the right hand column. On the left is the original class definition. Caution! rough-and-ready translation.

The Blais-CQTS class

2005 class definition

All persons residing in Quebec who had lung, larynx or throat cancer or emphysema at the time the motion was served or who have developed lung, larynx or throat cancer or emphysema since the motion was served after directly inhaling Cigarette smoke and smoking a minimum of fifteen cigarettes per period of twenty-four (24) hours over a prolonged and uninterrupted period of at least five (5) years, as well as the assigns of any person who met the above-mentioned requirements and who has died since the motion was served.
Proposed redefinition 

The group includes all persons residing in Quebec who meet the following criteria:

1. Have smoked cigarettes manufactured by the defendants for a minimum of 5 pack years (th equivalent of a minimum of 36,500 cigarettes, or any combination of the number of cigarettes smoked per day multiplied by the number of days of consumption were the product is higher than 36 600 cigarettes). 

For example:
5 pack years = 20 cigarettes per day for 5 years (20 x 5 x 365 = 36,600), or
5 pack years = 25 cigarettes per day for 4 years (25 x 4 x 365 = 36500) or
5 pack years = 10 cigarettes per day for 10 years (10 * 10 * 365 = 36,500) or
5 pack years =  50 cigarettes per day for 2 years (50 x 2 x 365 = 36,500)

And who

2. On November 18, 1998 suffered from or who developed before (date to be discussed)
a)  lung cancer, or
b)  cancer (epidermoid carcinoma) of the throat, such as cancer of the larynx, the oropharynx, the hypopharynx or the oral cavity), or
c)  emphysema.

The group also includes the legal heirs of any persons who died between September 30, 1998 and February 21, 2005 if at the moment of their death they had smoked cigarettes manufactured by the defendants and satisfied conditions 1 and 2 above.

The Letourneau class

2005 class definition

All persons residing in Quebec who, at the time of the service of the motion, were addicted to the nicotine contained in cigarettes manufactured by the defendants and who remained addicted, as well as the legal heirs of persons who were included in the group at the time of the service of the motion but later died without first quitting smoking.

Proposed redefinition 

The group is composed of all persons resident in Quebec dependent on nicotine contained in the cigarettes manufactured by the defendants who satisfy the following criteria :

1) They started smoking cigarettes manufactured by the defendants before September 30, 1994
2) On September 30, 1998 they were a daily smoker
3) On February 21, 2005 they were still smoking.

The group also includes the legal heirs of people who died between September 30, 1998 and February 21, 2005 if at the moment of their death they were smokers and met the conditions 1 and 2 above.

"Having your cake and eating it too"

All three companies opposed the new definition, and consistent with their approach in other questions where Justice Riordan has asked for input (i.e. market share), they did not offer their own position. You propose, we oppose seems to be their guiding principle.

Simon Potter (PMI/RBH) expressed the bulk of the substantive concerns of the companies, and Francois Grondin (JTI-Macdonald) offered legal arguments to support these positions. Imperial Tobacco was on mop-up duty.

With 8 years since the class was certified, the question of how to manage subsequent events will be a key one to resolve. If smokers were dependent between 1998 and 2005, but successfully quit later, should they be disqualified from the Létourneau class? If smokers developed cancers after 2005, but as a result of smoking cigarettes in the class period, should they be included in the Blais case?

The competing pressures (to close the gates at 2005 reduces the class for Blais but arguably expands the class for Létourneau) had both sides claiming that the other was inconsistent.

Justice Riordan suggested that it would be more efficient for the courts to consider cases that arose after 2005, as otherwise another class action could be filed on behalf of smokers excluded because of the time limit. He asked the defendants why they did not see it in their clients' interest to manage all of these potential claims in one go. The companies were resolute that they did not think the class should be expanded in any way.

Who's in - Who's out?

Other major points of disagreement were the criteria for inclusion in the class. In the Blais case, concern was focused on the inclusion of cancers of the oral cavity - an issue that was somewhat differently treated by the two expert reports (Dr. Guertin and Mr. Symiatycki). Justice Riordan suggested that a new notice could be issued (allowing those who might otherwise be eligible but who don't want to be included in the class to make their desire known), and this too did not meet with the industry's favour.

Establishing qualifications for addicted or dependent smokers in the Létourneau case will be one of the more challenging tasks. Philippe Trudel suggested that the size of the class would be statistically determined (by the number of smokers less those who have quit), but that eligibility for individuals would be established through the adminstration of the Fagerstrom test. Justice Riordan asked whether those criteria might not also be included in the class definition.

(A list of the many and various ways of measuring dependence is usefully provided in a recent IARC paper).

Simon Potter's "preposterous" and "ridiculous" suppositions

Simon Potter's position drew a rare statement from the bench that reveals something about how Justice Riordan is taking in the evidence put before him.

In his dispute over the definition of the class of addicted smokers, Mr. Potter tried to suggest that it tok 16 years (!!) of smoking before one could be considered addicted. He claimed this was the evidence of the plaintiffs' expert witness in addiction, and cited a response during his cross-examination of that witness. (On March 21, Mr. Potter had asked Dr. Negrete's about one of the studies cited in his report and the lapse of 16 years between the onset of smoking and the "identification of symptoms of dependence according to the criteria used in this interview." )

Dr. Negrete "confirms that the sample has the diagnosable condition arising after 16 years .. he says it 4 times," this lawyer argued with his remarkable talent of stressing almost every word.

While others were rolling their eyes, Justice Riordan responded to this bizarre position. This is something the judge rarely does, and the words he used to describe Mr. Potter's argument were among the stronger language I have heard him employ.

"This proof supports the argument that four years is an adequate period of time [to assume dependence has developed]. That doesn’t preclude you from making evidence that it takes 16 years – but it seems like a preposterous supposition.... 

Sixteen years is ridiculous. I am not the scientist, but at this point I have adequate proof that four years is more than a conservative figure."

What is "uninterrupted" smoking?

Another key issue that will need to be resolved is the interpretation of "uninterrupted."  Justice Jasmine's certification ruling had restricted the class to those who had smoked for a "prolonged and uninterrupted" period of at least 5  years. Does this mean that smokers who had made successful short term quitting attempts would not qualify?

On this point, the companies seemed to reflect somewhat different positions -- In the morning, Mr. Potter and Mr. Grondin suggested some openness to a short term quit not being considered an interruption, but in the afternoon Ms. Glendinning suggested this was a major legal issue.

"There is no ambiguity" in Justice Jasmin's ruling, she said. "You had to smoke at least 15 cigarettes a day for each day... It is very objective. You know whether you smoked 15 cigarettes per day for 5 years or longer – or you didn’t. There is no question about 'small quit' or 'big quit'." 

After this, Simon Potter clarified his earlier statement to align his company's views with those expressed by Ms. Glendinning.

Another important ruling in the offing

Justice Riordan did not say when he would make a decision on the class redefinition, but it will likely be before the defense starts its case on May 13th.

There is only one more day scheduled in the "plaintiffs proof". On April 23, Jean-Louis Mercier will return to vouch for some documents written by or sent to him. On the following week (April 29 and 30), the defense motions to halt or restrict the trial will be heard. (These motions will not be circulated until April 18th and I have yet to snatch the best English term to describe them).

Tuesday, 9 April 2013

Day 135: An agenda to intimidate

This afternoon's discussion between Justice Riordan and Imperial Tobacco's counsel about the upcoming trial schedule felt again like a high-powered game of cards. For 90 minutes, each side seemed to assess the other's hand - and their willingness to play it.

At stake is another year of everyone's life, as the industry lawyers suggest that they want twice as long to present their defense as the plaintiffs took to make the case against them.

Show me your cards, the judge had effectively told the defendants in the Montreal class action suit when he told them on March 14th that by today he wanted to see a more definitive list of estimates than the version shared at the beginning of January. "This is going to be your best estimate, at this time, of who the witnesses will be, what they're going to talk about and how long it's going to take."

The purpose of the exercise, he hinted, was to work to try to tame the proposed of length of the companies' defense. "With that list, I intend to work with you to see if we cannot shorten it to some extent and avoid duplication, and perhaps find admissions and do a case management."

Not exactly playing along

The list the judge was given today has not yet, as far as I know, been made available to the public (at least I haven't seen it in full). But from what was said in court, it appears that the industry has lengthened, not shortened its list. In January, they forecast 21 government witnesses -- today, apparently, the list has grown to over 38.

Their schedule suggests the trial will run past the spring of 2015 - and that's before the potential addition of 3 more expert witnesses. Twenty-six more months of trial!

The companies not only cocked a snoot at Justice Riordan by trying to defeat the purpose of the exercise, they also included elements that were bound to irritate this judge. They ignored his recent instructions on the sitting schedule for this spring, and made no adjustments to reflect his concerns about the scheduling of Simon Potter as a witness in a trial for which he is also counsel.

The person given the task of dealing this hand to the judge is a rare presence in this courtroom -- another Toronto-based counsel for Imperial Tobacco, Valerie Dyer. With its big team, Imperial Tobacco often switches-up its team, but bringing in this new player at this time also looked like it was a play for psychological advantage in this open-court negotiation.

Ms. Dyer is obviously a woman with experience.  With the solid presence of a hospital matron, she came prepared with arguments why the long list of witnesses was essential to the case.  In a completely deadpan way, she explained "Like Mitt Romney, I like to work with binders of people." 

Cards on the table: the "government defense"

Although the industry lost its ability to make the government an official defendant in this case, Ms. Dyer referred on at least three occasions to the "government defense" that she is presenting. With or without the government in the room, it is clear that Imperial's plan is to focus on the interactions among the companies and Health Canada and Agriculture Canada.

"The plaintiffs are asking you to look through the prism of history," she explained. Her line-up of witnesses were "the people who made the policy."  She wants the trial to hear from those who measured tar and nicotine levels for government, those who discussed voluntary measures with the industry, those who responded to developments on addiction, those who believed in a less hazardous cigarette, those who developed new strains of tobacco to be grown in Canada, and those who studied smoke chemistry.

"There is no question that at the time everyone thought they were doing the right thing," she said. "[Yet] all the plaintiffs say is that we commit faults." 

Not in the deck: The dead witnesses

Without any obvious sense of irony, Ms. Dyer explained that it is because many witnesses are dying that the company has expanded its list of government workers who will be asked testify.

The discussion began with a report of the recent death of ITL scientist, Stewart Massey - only one of a list of principal figures and potential witnesses who have died since the trial began.

Ms. Dyer noted that Dr. Harold Colburn (from Health Canada) Professor PK Basrur (University of Guelph) have both died in recent years, and she reported concerns about the advancing years and "deteriorating health" of other proposed witnesses, such as Maurice Leclair and former IMASCO chair, Purdy Crawford.

In her count of "my dead witnesses," Ms. Dyer includes 10 deceased Imperial Tobacco staff, 20 deceased Health Canada representatives and 6 to 8 deceased associates of Agriculture Canada. Her staff, she said, kept an close watch on the obituaries.

Close to his chest

Justice Riordan delayed most of his response to the lengthy forecast for the trial. It would require more thought on his part, he said, noting that the discussion might continue on Thursday.

Nonetheless, he indicated his concern with the length of the trial and his unhappiness with the prospect of Simon Potter testifying or the suggestion that the trial would not sit for three weeks in June.

The other hands

The plaintiffs said little this afternoon, other than to note that "everything [in the schedule] seems exaggerated in time" and that this spring's schedule could still accommodate about 10 additional witness-days. They pressed for the extra week's hearing in June and signaled some concerns about the ways time might be misused during the filing of documents.

A bluff?

As I understand it, the tobacco companies will be arguing in three weeks time (April 29, 30) that sections of the claims against them be struck down for want of evidence or other reasons. Perhaps now is not the time to expect them to produce a schedule that does not offer some practical (i.e. time-savings) pressures to buttress their legal arguments.

The benefits to the companies of signalling a long and sustained defense go beyond trying to tinker with Justice Riordan's judicial calculus or scaring the plaintiff's account managers. Provincial governments and their legal teams are also likely sizing up the length and strength of the industry's defense as they plan their next moves in the cost-recovery suits.

Extracts from the proposed schedule for the defense

May 2013

13          Trial management/review of judgement
14 15 16 Expert witness Jacques Lacoursiere
21 22 23 Expert witness David Flaherty
27 28 29 Expert witness Raymond Duch

June 2013
10 11 12 13 – "2870" documents
17            Expert witness Robert Perrins' support materials
18 19 20  Health Minister Marc Lalonde

(August 2013 to April 2014 - industry witnesses, not revealed today)

May 2014

5,6      Health Canada: Maurice Leclair
7         Waterloo University) J.C. Robinson
8         Waterloo University) W.H. Cherry
12        Health Canada: Neil Collishaw
13 14   Health Canada: Monique Bégin
15, 20, 21, 22  Health Canada: A.J. Liston

June 2014
2, 3      Health Canad: D.F. Bray
4          Health Canada: Margaret Catley Carlson
9          Health Canada: Perrin Beatty
10        Health Canada: Michele Jean
11, 12, 16, 17  Health Canada: Murray Kaiserman
18-19   Health Canada: Denis Choinière

September 2014
2-3       Labstat: Bill Rickert
4          Health Canada: Byron Rogers
8 9       Health Canada; Bruce Rawson
10        Health Canada: John Bachynsky
11        Health Canada:  J.L. Fry
15        Health Canada: David Kirkwood
16        Health Canada: Maureen Law
17        Health Canada: David Dodge
18        Health Canada: David Crombie

October 2014

1          Agriculture Canada: Frank Marks
2, 6, 7  Agriculture Canada: Wade Johnson
8, 9, 14 Agriculture Canada: R. Pandeya
15        Agriculture Canada: J. Brandle
27, 28, 29 Agriculture Canada: Brian Zilkey
30        Agriculture Canada: WA Court

November 2014
3         Agriculture Canada: W.A. Court
4, 5     Agriculture Canada: J.J. Cartier
6         Agriculture Canada: Yvan Martel
10       Agriculture Canada: Elson Ashby & Carole Size
11, 12 Agriculture Canada:  Ken Walker
13       Agriculture Canada: Nestor Rosa

December 2014 - May 2015  (dates not clear)
(Representatives from the classes -- 15 members of the Blais class and 35 members of the Letourneau class).

Earlier in the day

The industry's proposed schedule was only circulated at lunch time. During the morning, three short items of business were managed.

A government witness - Statistics Canada

Julie Bernier, who directs the health analysis section at Statistics Canada, had been summoned in order for the plaintiffs to put on record data from three of the surveys conducted by Statistics Canada on smoking behaviour.  These include data from the National Population Health Survey (Exhibits 1535.1), the Canadian Community Health Survey (Exhibits 1535.2, 1535.3, 1535.4) and the Canadian Tobacco Use Monitoring Survey (Exhibits 1537.1999, 1537.2000, 1537.2001, 1537.2002, 1537.20031537.2005, 1537.2004). 

Two of the companies unsuccessfully attempted to block the introduction of this evidence (the third, RBH, had previously introduced survey reports from one of these surveys, which would have made it a harder argument to sustain. They expressed concerns about "the process and the use that will be made of the data without our ability to put questions" and the "use of this this evidence to establish the size of the class."

They did not, however, offer any alternative or preferred sources of information about smoking rates in Quebec. Their complaints about lack of confidence intervals in the data resulted in Ms. Bernier agreeing to provide this information in the coming days. 

A secret discussion about secrets

For only the second time since the trial official opened last March, the courtroom was closed to observers as  Justice Riordan examined whether a portion of CTMC minutes should be kept confidential or privileged. It is not entirely clear what decision was reached during this hour, although by inference Imperial Tobacco may have been successful. This afternoon it was reported that the company would provide a newly redacted version of the material. (These minutes will be introduced as Exhibits 479 KK and 479 JJ).

Getting to the end of the "2870"

Another list of requests for "2870" was completed today. 

Imperial Tobacco has objected to virtually every one of the documents proposed over the past months, and although Nancy Roberts' delivery of the objections has been cranked back a notch, it has still been a trying process.

Exhibit 102
With the end of these rulings in sight, Justice Riordan began to push back against Ms. Robert's objections, pointing to the holes in her argument about one of the more emotionally compelling documents introduced in the trial. 

Under review was the posthumous account by scientist Pat Dunn of the pressure he felt from lawyer Roger Ackman to accede to the new document destruction policy. (Exhibit 102a)

Ms. Roberts did not want Mr. Dunn's reflections to be given the status of testimony. She objected that these documents were "replete with opinion and double hearsay" and that they were unnecessary as "we had Mr. Ackman who testified in court that he would never have said one of the statements attributed to him."

"What if I don’t believe Mr. Ackman or his memory?" Justice Riordan asked. "I have to keep the options open, don’t I?" 

But it was still hearsay, protested Ms. Roberts. "It's not hearsay if it was said to him directly," Justice Riordan pointed out - "if I don’t have the document, how can I weigh the evidence?"

Ms. Roberts tried another approach and pointed out that the evidence was already on the trial record, as the document had been admitted under the  May 2 ruling. Justice Riordan reminder her that the company was contesting that ruling, and that the plaintiffs naturally wanted to have it admitted under other provisions in case the company's challenge was successful.

Over the past year, Justice Riordan has made virtually no references to the credibility of any testimony. The fact that he chose one of the more dramatic conflicts -- and one involving the testimony of corporate lawyers -- made this even more noteworthy.

Tomorrow (Wednesday) the trial will suspend for a day. On Thursday, there will be a discussion of proposals to change the definition of the classes in both the Blais and Letourneau actions.

Monday, 8 April 2013

Day 134: Yes. Yes. Yes. No. Yes. Yes. No. Yes....

These last few weeks of the "plaintiffs' proof" in the joint trial of the Montreal class actions against multinational tobacco companies operating in Canada have a decided end-of-project feel to them.

I don't know whether the odds-and-sodds feel to the proceedings is natural at this stage of a trial, during which one side winds down and the other side prepares (at least in theory) to start making its case. The tobacco companies' motion to strike the case that will be heard at the end of the month may also be responsible for the fermata that seems to have been written above the trial schedule for March and April.

Certainly, there is no feel of urgency. Last Thursday was a half-day session, as was today.

This afternoon was spent with more finishing touches to the "plaintiffs' proof" and a review of whether a couple of dozen documents could qualify under the "2870" rule that can convert historic documents into trial evidence.

After issuing two written rulings (on January 10 and January 28) and making a couple of hundred decisions from the bench, one might have expected Justice Riordan to find the exercise relatively routine, but some of his comments today suggested that he did not always find it straightforward, or at least wanted to put that impression on the record.

"If the Court of Appeal can figure this out better than I can, then I will be glad to follow their judgement," he said wryly, referring to that court's scheduled hearing on June 10 to consider both whether the industry should have leave to appeal his first two rulings and also what the merits of that appeal would be.

In the meantime, the plaintiffs appear to have correctly assessed the documents he considers qualified for admission through this provision of the law, and most of those presented today were accepted.

Many of these documents had already been made public through this trial, including the industry's internal estimates of the market share of manufactured cigarettes owned by each company, (the 1437 series of exhibits). The Philip Morris documents that had been referred to by William Farone during his testimony last month. (Exhibits 1274, 1274a1456,  1461, 1462, 1465) were also publicly available on the Legacy web-site.

But there were others presented that are getting public exposure for the first time today.

Among these are documents showing how the industry cooperated/collaborated/conspired to respond to government actions to address tobacco use. Worth a review is an 11-page document recording the industry's initial planning after learning that the physician MP, Dr. Gaston Isabelle, was to head a House of Commons committee review of tobacco issues. (Exhibit 544A1-pp).

Exhibit 544A1
The "very confidential" minutes show the companies trying to wrap their heads around how this committee would actually be run -- noting that the health minister was losing credibility in Cabinet and expressing concern about the committee chair. "A good M.D. but a poor administrator" ... "his disinterest and lack of control a cause for grave concern."  A preliminary "very rough estimates" budget of $100,000 (in 1969) was allocated for the hearings.

The companies agreed there would be "no indication of any concessions" before the committee.

An organigramme of the communications structure jointly created by the companies to manage these parliamentary hearings was also approved as evidence (Exhibit 1498) - as was the evolution of the CTMC described in a memo a decade later (Exhibit 1499).

Other CTMC materials which became exhibits today include its plans to rebut the Royal Society's 1989 report on addiction (Exhibit 334), and to develop the Smokers' Freedom Society (Exhibit 343).

Safer cigarettes -- market driven, not health driven 

Exhibit 1462
The extent to which the companies saw the development of safer cigarettes as a response to the interests of smokers rather than a response to the health status of smokers was reflected in documents from two of the defendant companies. One was a 1966 Philip Morris study on the "market potential of a health cigarette" (Exhibit 1462) and the other a report from Imperial Tobacco's  commissioned research on smokers' reactions to concepts for a "safer cigarette" conducted 20 years later (Exhibit 987.25A-2m). 

Groupes Discussion

Over the weekend, the plaintiffs served notice of motion to amend the definition of the classes  ("les groupes") in both Blais and Létourneau class actions. Justice Riordan pushed open the door to this discussion with repeated questions and concerns about the definitions included in the ruling that launched these class actions (the 2005 Jasmin decision).

The discussion on the proposed amendments, which have not yet been made public, will take place on Wednesday or Thursday.

Tomorrow's big reveal

Another proposal that has not yet been made public - or indeed shared among the parties and judge - is the industry's proposal for its schedule of witnesses. The deadline given for this document by Justice Riordan was April 9th, and today he was told that it would not be ready until mid-morning. 

When pressed for an earlier release last week, ITL's counsel, Deborah Glendinning, pleaded that some last minute hang-ups made this impossible.  ("We've got an issue with one of our main witnesses. So our original plans have changed as of this morning." she said on Thursday.)

Tomorrow afternoon the suspense should be lifted.

Tuesday morning a representative from Statistics Canada will testify with respect to data collected by that agency, and more "2870" documents will be considered. In the afternoon, the industry's trial schedule will be discussed.