Tuesday, 30 September 2014

Day 240: An addictive, useless product that causes death in half its long term users.

There was a lot crammed in to the last day and a half of the plaintiffs' closing arguments in the Quebec class action trials. Yet there was nothing rushed about the way in which they presented their legal theories, their proposals for the amount that should be paid by the companies in damages, and their appeal that damages be imposed on a collective (class-wide) basis (without the burden of assessing individual claims). Oh, and they also gave a second try for "provisional execution" of some portion of any damages.

Something is certainly missing from that list -  but after two very full days, and an ill-advised pause before writing up an account of the day, I feel I am doing well to remember that much!

The legal theory: selling cigarettes is a fault

The plaintiffs say that the Canadian tobacco companies have broken three Quebec laws:
*  The Quebec Civil Code (particularly Article 3, 1457), and its predecessor the Civil Code of Lower Canada (Article 1053),
*  the Quebec Consumer Protection Act, (Articles 215-228) and
*  the Quebec Charter of Human Rights and Freedoms (sections 1, 4, and 49).

Grossly oversimplified, these are the laws that offer Quebecers the right to life, security and dignity, that protect them from unfair commerce, and that say everyone has a responsibility not to hurt other people.

In their written brief, the plaintiffs say that the manufacturing, marketing and promotion of cigarettes does not conform with those laws.

49. The Plaintiffs therefore submit that it is a civil fault to design, sell, and manufacture an addictive, useless product that causes death in half of its long term users. The Defendants’ behaviour throughout the class period violates the norms of conduct incumbent upon a manufacturer and engages their liability to the class members.

50. The Plaintiffs submit that the Defendants’ fault is compounded by their reliance on the materialisation of the gravest of the dangers inherent in the product they sell, namely addiction, in order to create, maintain and grow the market.

In presenting this argument to Justice Riordan this week, Bruce Johnston elaborated on the threads that come together to form this conclusion. As threads are wont to do, they wove together.

An addictive, dangerous product

Mr. Johnston said he was not arguing that cigarettes were a defective product (ones that didn't work as expected), but they should instead be seen as "inherently dangerous products". As such, their sale should only be permitted if the conditions for such products were met. For cigarettes sold in Quebec, he said, this had not been the case, and still was not.

In their brief, they write: "A manufacturer may only sell a non-defective, dangerous product without fault if the usefulness of the product outweighs the risk of harm." Even then, "such products need to carry appropriate warnings." 

Mr. Johnston offered a list of warnings that, used together, might be appropriate. The first one was the blunt message: "Do not use this product."

The addictiveness of nicotine is a key component of this danger, he said. If all teenagers wanted from their cigarettes was to "look cool", then what they had needed was a product that would allow them to do that, but which would not be addictive.

He said it was wrong to compare cigarettes to products with known inherent dangers. "They say it is like a knife - 'don't stab yourself with it' -  but it is more like a pharmaceutical product. If they are selling a drug, should they not be bound by the same rules as a drug company is with respect to information?"

(He later referred to Supreme Court rulings on the obligations of manufacturers with respect to birth control pills and breast implants as examples of the type of warning that was required of manufacturers.).

A fault to sell it, but not a request to ban it

Would a finding of civil fault for the sale of cigarettes be tantamount to a ban? That's how the defendants have characterized it in their written briefs. They say such a finding would trespass on the rights of legislatures to set policy.

To this, Bruce Johnston offered what my political friends would call a 'nuanced' position.

He pointed to several policy reviews which had reflected on why it was unrealistic to ban cigarettes (The Supreme Court, Exhibit 75A, the Isabelle Committee, 1554.4). He cited the World Health Organization saying that such a product would never be allowed for sale if it were introduced to the market today. (Exhibit 1422).

The companies are "trying to impress that what we are looking for is a ban, but that's not what we are doing," said Mr. Johnson. "Coming back to the Broad Street metaphor, we aren't asking you to take the handle off. We are asking you to order them to compensate the people they have harmed."

What would happen to the cigarette market if this happened? Mr. Johnston did not say. He suggested that the judge should not focus on such questions or be swayed by the apocalyptic threats of the companies. Instead he should focus on how the law should be applied.

"They will raise societal issues. 'If we go bankrupt it will be mayhem'", he predicted. "But I think there's a more important question, more relevant to what you have to decide,. If this industry, with this product, can't be held liable, why would any other industry bother to respect the law?"

The judge was only being asked the question "Are they liable in these circumstances, for this period?.... you are not being asked to look at whether you're going to ban smoking."

Ending the special treatment

"How does it work that you acquire a right to spread disease intentionally?" Interspersing Mr. Johnston's presentations this week were reminders of the scope and scale of tobacco industry wrongdoing, and the legal protection that has perversely been provided to them.

"Tobacco built for itself a sort of parallel regime. It's the Twilight Zone of law, where apparently the law doesn't apply to them." ... "The enormity of the proposition that  the worst industry could have the least obligation is quite astounding."

He attributed this to the smoking culture that once existed in Quebec, as elsewhere. Fifty years ago it would have been "virtually impossible" to gain acceptance for the idea that the companies were acting against the law, he said. But things were changing!

The limits of consent, and the progress of civilization

Changing social values make it more "feasible" to apply the law equally to tobacco companies, he said. pointing to a 1991 Supreme Court ruling that altered how consent was viewed in the context of criminal law.

(The case was Jobidon vs. The Queen. A man was killed in a fistfight he had provoked. His opponent was originally found not guilty of manslaughter on the basis that the victim had consented to the fight. The Supreme Court overturned the verdict, citing "policy considerations" in its view that consent to the fight did not exonerate the crime. Fistfights were not a practice that the court wanted to see protected in this way.)

"The process of civilization is decisions like this one. It may have been accepted before, but it was always wrong and we are not going to accept it any more. It never was acceptable, but now we are going to say it." Mr. Johnston characterized changed interpretation of old laws as an element of social progress.

Justice Riordan challenged: "But you are asking me to change the rules of civil liability.... You're saying consent, volenti non fit injuria, and all those kinds of rules that we learned .. don't apply anymore."

Mr. Johnston disagreed. He said the plaintiffs were NOT asking for any change to the rules - "we're just asking you to apply them." The legal principles regarding consent were unchanged, but he said that it is now accepted that there are limits to how consent can be used as a defence. "[Consent] is not valid in this case" He recapitulated his arguments why: "It is not fully informed, it is based on misinformation, it relates to bodily injury, and the product is addictive." The impact of addiction on impairing a smokers' ability to revoke consent to accepting harms of cigarettes was repeated several times this week.

And what about government?

He asked the judge to see past the industry's argument that because governments had not banned cigarettes, then the sale of them was lawful.

With what I took to be understatement, he said that "government didn't always act with the greatest scientific thoroughness" But that "once they realized they needed to do something, they acted to restrain smoking in the ways they chose." Government, too, had been lied to by the industry, he reminded the judge.

Justice Riordan is the only Canadian judge to have refused to excuse the federal government from a third-party/action in warranty claim by the tobacco companies.

Today, he referred to the government's role through an allusion to the Jobidon case. "In this case, not only is the government not prohibiting fighting -- they are charging a fee to get in to watch it!"

Twenty-two months after the federal government was released from this case, there are moments like these when it it's presence is very much felt!

How much exactly?

It was Gordon Kugler who presented the plaintiffs' views on the severity of the punitive damages that should be assessed against the companies. (Mr. Kugler heads up one of the four law firms which are working together on this case, but he is not a regular presence at this trial).

He reminded Justice Riordan of three recent Supreme Court decisions which have clarified the way in which damages can be assessed under the Quebec Consumer Protection Act. (Marcotte vs. the Bank of Montreal, Cinar Corporation v. Robinson and Richard v. Time Inc. (Justice Riordan owned up to having worked on the last case in its early stages before he became a judge.).

Mr. Kugler encouraged Justice Riordan to see that these rulings would allow him to:
* have considerable discretion on the amount he awarded, as long as the award was rationally connected to the harm done, and that he should not fear a higher court overturning his decision.
* award heavy punitive damages for past behaviour, even if he felt that the companies had improved their behaviour in recent years. Such punishment would serve as a deterrent to other businesses.
* award an amount in punitive damages that was sufficiently large to act as a deterrent, even if it was much larger than compensatory damages.

Mr. Kugler did not mince words. "I submit that Your Lordship has to clearly send the message that in Quebec, such conduct is reprehensible and intolerable, and the award must be sufficient to induce them and others to cease such behaviour towards Quebec residents."

"Their reprehensible conduct has resulted in the deaths of thousands of people. Justice La Forest said that, but to no avail! The defendants were not discouraged from their behaviour : they continued on their merry way."

He listed a number of prominent authorities who had censured the industry's behaviour, without resulting in any significant improvements. These included the U.S. Surgeon General and Justice Gladys Kessler, "None was sufficient to change the reprehensible behaviour of these defendants: they continued to target youth, to destroy research reports, to publicly deny cause and effect relationships."

Justice Riordan asked for Mr. Kugler's views on whether punitive damages should be assessed not on a per-member basis but on a per-defendant basis, and also whether a sum determined should be determined not on a market share basis, but on the basis of the comparative levels of wrongdoing by the defendants.

While generally agreeing, Mr. Kugler asked for the amount to be assessed on an industry-wide basis. "I think you will come to the conclusion that there was a conspiracy of the three defendants - that there was collusion. They never could have done what they did without the full cooperation of all three."

Surprising, to me, was that Mr. Kugler repeatedly gave the example of an award for punitive damages of only $3 billion. This is a little more than half the $5.3 billion that was proposed in the plaintaiffs' written pleadings.

[My records show that the take-home profits (unadjusted for inflation) for the companies in the late 1990s was about $1 billion per year. A $3 billion fine would leave the revenue for 47 of 50 years of the class period untouched.]

Nonetheless, he stressed that in order for punitive damages to have the required effect, Justice Riordan would have to "hit them hard."

"If you don't hit them hard, as they have shown for the past 50 years, they will just ignore the court. They ignore the reports from everywhere else. They ignore the fines. They don't care." 

Mr. Kugler said more -- but much of it was interspersed with his reflections on the situation of JTI-Macdonald which, as before, are not to be shared. Justice Riordan agreed to the proposal for non-disclosure of all references to JTI-M's structure and finances. This time, however, he reminded the lawyers that it was his decision to make, not theirs. His order was a temporary one. Stay tuned!

Collective recovery 

Late in the day, Philippe Trudel provided separate arguments about why the damages that awarded should be done on the basis of "collective recovery" and not "individual recovery". The opposite view is a major theme in the companies arguments, and more will doubtless be said about the distinctions in the coming weeks.

Provisional execution

Earlier this week, Justice Riordan had put on ice the plaintiffs' request that owing to the abuse of court procedures by the defendants, a portion of any award be demanded immediately upon his ruling, and not have to wait the outcome of the appeals to a higher court. (This "provisional execution" of the award would be reimbursable to the defendants if they won on appeal).

Today, as their last submssion, André Lespérance gave other reasons that could be used to justify this approach, and which would not require the judge to engage in a mini-trial on the behaviour of the defence during the trial.

He suggested that the plaintiffs had chosen the wrong horse to ride in this request. "We used a western saddle, when perhaps an English saddle would have been better."

He based his argument today on the long delay that the class members had experienced. "Ninety-five percent of lung cancer victims die within 5 years. It has been 16 years that we have been before the courts.... It injures people to ask them to wait a further 5, 6, or 7 years to receive a part of their claim."

He gave the judge a few legal precedents to hang his hat on, and reminded him that "Justice delayed is justice denied."

And then it was over.

With 15 minutes on the clock, the plaintiff's closing arguments ended when Mr. Lespérance thanked Justice Riordan for his patience.

Their next --- and last -- opportunity to present their thoughts will be during the "réplique" that follows the defence teams' presentations.

On October 8, Rothmans, Benson and Hedges will begin its closing arguments. The other days reserved for their presentation are October 9, 10 and 14th.

This post has been back-dated to allow for continuity in indexing. It was written on October 1, 2014. 

Monday, 29 September 2014

Day 239: The many forks in the road.

Oh, but it was a dramatic day at Montreal's Palais de Justice!

The media had surrounded the building with their trucks and camera crews - ready to broadcast every detail of the opening of the criminal trial against Luka Magnotta, charged with premeditated murder and dismemberment.

Several floors above that particular frenzy, the Quebec tobacco trials were also at a spectator-worthy moment, as lawyer Bruce Johnston summed up the plaintiffs' factual evidence of Canada's tobacco companies conspiring against the health of their consumers.

It was in other ways too an historic day. Justice Riordan became the first judge anywhere (I think) to be presented with the argument that it should be considered a "civil fault" to sell cigarettes. This, alas, is a teaser - for the report on the legal theories presented by Mr. Johnston today will not be reported until tomorrow's blog.

Lifting the story off the page

One of my favourite Toronto lawyers once told me that litigation is competitive story-telling. Today, Mr. Johnston presented a rousing last chapter in the plaintiff's account.

To good effect, he shifted delivery style. Unlike the condensed and distilled summaries of last week, today's presentation was told in a slow and deliberative way - full of pauses to let key points sink in.

More personal reflections crept in. Mr. Johnston speculated on the mindset of the company executives who made key decisions, on how the smokers' who bought their products might have seen things, and on how people like the judge might perceive these actions.

The decision to minimize liabilities

One theme the plaintiffs sustained over the past week has been the question of the choices made by the companies made at key moments over past decades.

Mr. Johnston said that the motivation for many of these decisions was the desire to avoid being sued, and pointed to the few records of lawyers' advice to support this (Exhibit 1467.2, 1702R). (Usually lawyers' advice is exempted from court proceedings).

He said this motivation lay behind actions like:

* The destruction of documents that might "demonstrate the scientists of the company accepted causation and addiction" (Exhibit 1467.2). 

* The refusal to put unattributed health warnings on cigarettes unless forced by law (Exhibits 79, 841, 50004). 

* The development of an "intractable" level of legal proof required to link use of their products with disease in any individual. (Exhibit 1702-R). Or, as Mr. Johnston put it - "Put the goalposts at infinity so no one will get there."

* Recruiting expert witnesses (in this trial, as in the parliamentary committees before) whose vulnerabilities allowed them to be managed by lawyers.

* Denial and trivialization of health risks. 

He gave an example of the willingness to deny the truth in order to minimize legal liability was reflected in the written arguments of Rothmans, Benson and Hedges. The company had submitted that "People may choose to smoke for a variety of reasons, but an addiction to nicotine is not one of them." 

"Is that not the trivialization they are being reproached with -- and is it not right there in that paragraph?" 

Who listens when the Supreme Court speaks?

Although the Supreme Court ruling on the federal Tobacco Act was one of the first exhibits entered (it is numbered 75A), it is only in their closing arguments that the plaintiffs have pointed to it as a factor in Justice Riordan's determination of the facts.

While clarifying that they were not saying that the SCC conclusions on certain facts were "binding on [Justice Riordan] in any way," Mr. Johnston offered legal precedents as to why it should shift the presumptions of proof. 

Among the many instances he pointed to of the Supreme Court supporting the plaintiffs' case were statements like:

"Tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs." 

"Half of smokers will die of tobacco-related diseases." 

"Tobacco addiction is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse." 

"Recent tobacco advertising has three objectives: reaching out to young people, reassuring smokers (to discourage quitting), and reaching out to women." 

"Tobacco contains nicotine, a highly addictive drug."

"Some 80 percent of smokers wish they could quit but cannot."

He reminded Justice Riordan that the lawyers for Rothmans, Benson and Hedges were the same ones who had lost their case at the Supreme Court, yet their representations in this case had not reflected the facts in any way. "This goes to credibility." 

Benefits of smoking?

Last week Justice Riordan had raised the question of whether there might be benefits to smoking. (The plaintiffs argue that the lack of benefits increases the obligation to not sell the product, or to warn of its risks).

Bruce Johnston returned to the topic by showing internal company reflections on what smokers received from the use of their products: people started smoking for social reasons, and only continued because it was (too) difficult to quit (Exhibit 30, 305). 

Cigarettes were marketed to youth as a badge product. Mr. Johnston recalled how, in his youth, "you took a pack of cigarettes, and put it on the table, and told people who you were." 

"What are the benefits? The addiction is the benefit. [Smokers] start because they want to look cool: they want to look grown up. They later find out that they are smoking because they have to or because they feel they can't stop."

Outside scientists, like Hans Selye, were hired to identify and articulate benefits to tobacco use (Exhibit 543). "When you have to pay the equivalent of millions of dollars to find what the benefits of your product are, I would submit there is a problem. If you have to look for them, they are not that obvious," Mr. Johnston observed. 

He acknowledged that "the only possible benefit is the drug effect."  In that case, he said, the standards of behaviour required of pharmaceutical companies should apply. "Aspirin tells people what the risks are -- why wouldn't tobacco companies?"

The informed choice of children?

Mr. Johnston deviated from usual practice, and related reading "The Lion, The Witch and the Wardrobe" to his then nine-year-old son soon after the Létourneau lawsuit was filed (in 1998). His son, he said, had grasped the parallel between cigarettes and the candy offered by the evil Queen of Narnia.

At last the Turkish Delight was all finished and Edmund was looking very hard at the empty box and wishing that she would ask him whether he would like some more. Probably the Queen knew quite well what he was thinking; for she knew, though Edmund did not, that this was enchanted Turkish Delight and that anyone who had once tasted it would want more and more of it, and would even, if they were allowed, go on eating it till they killed themselves.

Following this, he moved slowly through one of the ITL research reports first made public as a results of the trials that led to the Supreme Court ruling cited earlier: Project Plus/Minus (Exhibit 305). 

Mr. Johnston allowed the details of this research report to sink in. How young people have heard the health risks of smoking, but think they can experiment without becoming addicted. How they want to quit soon after starting, but they find they cannot. How this entrapment leads them to rationalize their behaviour, and moderate their views of the harmfulness of smoking. "It becomes impossible to accept one's status as an addicted smoker without somehow coming to grips with the health issue, and making peace with it. This ends up done by rationalizations, which take several forms."

The defendants' view that smoking is an informed decision made by adults was wrong, said Mr. Johnston, It is, instead, "an uninformed child's choice."

"They don't think they are going to become addicted... What 15 year old is worried about something that will happen in 50 years?"... 

This was only one of the reasons he provided to Justice Riordan why the defence that smokers consented to the risks of the product should be rejected. "They get trapped before they are the age of consent to make any contract." 

Moreover, he stressed, when addiction is involved, consent must be viewed differently: "Do you think a consent you are not free to revoke is a valid consent?"

The acceptable cigarette

Mr. Johnston attacked the defence argument that they had to maintain a certain level of nicotine in their cigarettes in order to make them  "acceptable" to consumers. Consumer acceptability, he said, was used by the companies as a code for "the dose of nicotine required to sustain addiction." (Exhibit 40346.316)

"You could have a different view of acceptable -- meaning NOT capable of sustaining addiction." 

Mr. Johnston said that the companies could reduce the amount of nicotine by using the leaves from the lower part of the tobacco plant. This did not happen, he said, because "from a commercial perspective, it is not as interesting."

"That makes commercial sense, but if you didn't make a product that was addictive to begin with then there would be no such issue."

A widening gap between actions and responsibilities

Mr. Johnston described the actions of the companies as climbing up a ladder away from their responsibilities to their consumers: each step a different level of negligence.

He reflected on the experience of the oldest witness at the trial - nonagenarian Peter Gage. When Mr. Gage had started in the industry, it was an industry like any other, he said. At that time (the 1950s) the companies may have unknowingly but negligently sold these risky products. 

"They didn't exercise diligence -- can they be held liable? Yes. But once they know that it is harmful, what did they do?" He said the companies not only refused to tell anyone what they knew, but they conspired to lie. After that, they increased the distance between themselves and responsibility by sponsoring "bogus science to feed the public with lies."

He showed how the companies believed that certain tobacco leaves would be less toxic, but nontheless did not use them because they contained too little nicotine. (Exhibits 59-28, 1242) "Usually law would require a company to know its products and make them the least dangerous as possible."

He pointed to an early meeting among the companies at which they planned to overcome the health challenges to their products, where their responsibilities were defined as being to their companies, to the Canadian tobacco industry and to the world tobacco industry. (Exhibit 542). Notably missing was any acknowledgement of their responsibility to their customers, Mr. Johnston pointed out. 

"The rules are hardly designed to accommodate behaviour so egregious."

I guess you had to be there

Re-reading this report, I realize that it in no way captures how riveting the experience of the day was. It wasn't just me: others too were watching with the same unwavering intensity.

The next blog post will report on Mr. Johnston's presentation of the plaintiffs legal arguments, which began today and will continue tomorrow, Tuesday. 

Thursday, 25 September 2014

Day 238: What if the Broad Street Pump had been owned by Big Tobacco?

There were times when I felt I was on a six hour legal roller coaster during the fourth day of the plaintiff's final argument in the Montreal tobacco trials. Certainly more fast and furious than usual.

Or maybe I just have roller-coasters on the brain after Philippe Trudel used a Belvedere ad portraying one early in the day, asking Justice Riordan to reflect on whether amusement parks were something that appealed to a lot of adults.

He was concluding his presentation on why all tobacco ads shown in Quebec during the class period were misleading within the scope of the Quebec Consumer Protection Act. They omitted important information, they conveyed misleading information and they functioned as interference with consumer understanding of product risks.

He had also focused on more traditional concerns with tobacco marketing - such as its role in recruiting children to smoking. This morning Mr. Trudel provided further examples of each companies' strategies to reach younger people, and how these plans were reflected in their marketing. (Exhibits 303, 1503.9, 989.52, 292, 771).

He ended by drawing attention to the mid 1970s finding by Imperial Tobacco that one of the most effective ways to prevent Quebec youth from starting to smoke would be to stress its addictive powers. This, they found, would run counter to their view that cigarettes represented autonomy and independence (Exhibit 301). Following, as this did, the previous days' review of the company's attempts to deny addiction made this a point likely to stick.

Did [the companies] conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use?

Bruce Johnston presented the plaintiff's response to the last of the six fact-based questions assigned to the parties.

He began his (decidedly affirmative) answer to the question of whether there was an industry conspiracy by presenting the fabled public health story of John Snow and the Broad Street Pump. Even before there was scientific consensus that cholera could be spread by contaminated water, the theorized source of harm had been removed.

"What the defendants have done is so much worse than leaving the handle on," said Mr. Johnston. He likened their behaviour to those who would refuse requests to stop selling such water until there was absolute proof. Worse - they were like those who would make up science to actively contest the contagion theory. "All the while choosing profits over lives."

From London to New York to Montreal

Only a century after the Broad Street pump handle was removed, tobacco companies gathered at New York's Plaza Hotel to plan a collective response to the emerging theories that their products were causing death. From this meeting emerged a strategy symbolized by the Frank Statement.

The objectives of the strategy of denial, Mr. Johnston said, was to sustain scientific controversy about the harms of smoking and thereby give a rationale for smokers to continue buying cigarettes, as well as helping the companies resist regulation and fight off lawsuits.

He said today's legacy of this decision is that "all their decisions now look like a pretzel: 'it's not proven, but everyone knows it.'"

Mr Johnston pointed to evidence of the same strategy being executed in Canada. The defendants employed the same denial campaigns, they similarly funded research aimed at pinning the cancer blame on other causes, they amplified the voices of the same few scientific dissenters. They even employed the same public relations consultants to write submissions to government offering the same denialist statements.

Mr. Johnston tied a thread between this strategy of denial and events at this trial. He described how the defendants had hired experts with little or no experience in tobacco issues as a way of providing expertise that was not in line with views of more knowledgeable people. He showed how the views of industry consultants - like Maurice Seevers - had found their way into the reports of expert witnesses after they had been "developed" by lawyers in the United States. "That's denial coming right here into this courtroom, your lordship."

Mr. Lespérance had earlier referred to BAT's scientific conclusions after a 1958 tour of North America to illustrate the disconnect between their internal knowledge and external comments. Today, Mr. Johnston used the same example to show the conspiracy elements of these events.

Two scientists who did not accept causation were identified by BAT in 1958. One of them was Dr. Joseph Berkson, and his views, the company officials noted, were not scientifically respected. "His reasoning is nowhere found to be sound." (Exhibit 1398).

But for the following two decades it was Dr. Berkson's views which were presented by the Canadian and American firms to the public and to government. (Exhibit 551C, 687, 1269, 1237, 30029.229, 1237). The widespread and repeated plugging of this man's views was evidence of conspiracy, Mr. Johnston suggested.

The 1962 Agreement

"When you allege conspiracy, your lordship, rarely do you have a contract. But we do." 

Bruce Johnston provided details -- I think for the first time ever --  on an agreement signed by each of the tobacco companies operating in Canada "to refrain from the use of ... tar, nicotine or other smoke constituents" and to offer no public statements on health issues. (Exhibit 154, 154b, 154e)

They also agreed to adhere to a common position on smoking and health issues and a common framing in their responses.

"Q. Has it been proved that cigarette smoking causes lung cancer?"
A. No...."
"Q. May there be hazards to smoking?"
"A. Every human smoking action has its hazards, even taking a bath ...."

The defendants' explanation of this series of documents will be worth watching...!

Funding medical research

The American tobacco companies announced funding of medical research in their January 1954 Frank Statement. Within a few weeks, the Canadian companies had done likewise -- co-funding a $100,000 donation to the Canadian National Cancer Institute. The companies have denied that this was done to undermine public acceptance of causation, but happened rather as a result of a federal government request. There were "no strings attached" said JTI.

Bruce Johnston offered evidence of other intentions. He highlighted the role of Carl Thompson (a strategist behind the Frank Statement), who prepared advice to the NCIC on how these funds could be used. (Exhibit 688B, 21207.5). "The PR guy is charged with providing ideas for the research that should be done! ... [His proposals] are all a search for confounding factors." 

Research that contradicted public positions was removed

Bruce Johnston linked together other events to show that the views of BAT scientists and scientific advisors were rejected in favour of denialist public relations campaigns. He focused on the counter-messaging that was prepared in advance of the 1979 Surgeon General's report. (This report was an up-dating of the 1964 report, offering a 15-year perspective on developments in science.)

BAT's advisors reviewed the report and the rebuttal material prepared by the U.S. Tobacco Institute ("The Continuing Controversy" Exhibit 475A), and had faulted the public relations material as being so unscientific that it threatened the industry's credibility.

Mr. Johnston pointed to evidence where the Canadian companies, having received this criticism, nonetheless chose to rely on the U.S. public statements, to circulate them to media and to others, and to echo the approach in public responses.

He also linked this with the choice by BAT and ITL to expunge documents from its research library which contradicted the public position on cancer, cardio-vascular disease and emphysema. (Exhibits 58-32, 59-22, 58-59).

There are almost 50,000 Quebecers who are seeking damages for emphysema caused by smoking. Mr Johnston contrasted the position circulated by ITL after 1979 ("the uncertainties and unknowns in the medical understanding of COPD permit no firm conclusions about smoking" - Exhibit 475A) with the findings of a 1976 document it later collected for destruction ("Cigarette smoke produces changes which precede emphysema... patients with emphysema who have never smoked are rare." Exhibit 58-59).

Did the defense lawyers play fair?

A section of the plaintiffs' written arguments is focused on the way the trial was managed by lawyers for Imperial Tobacco and the other companies. "The defendants intentionally sought to exhaust the Plaintiffs in order to prevent them from exercising their rights. This is abuse of process," they claim.

On the basis of a detailed list (130 paragraphs long!) of "extensive and systematic abuse", they asked Justice Riordan to penalize this behaviour by forcing the companies to pay the plaintiff's legal costs and also to pony-up 25% of any damages even before any appeals have been heard. (This is called provisional execution.)

Imperial Tobacco, which is the target of most of the complaints, responded by asking that this whole argument be struck down and the offending sections of the plaintiffs' written arguments be cut out. The debate on the ITL motion was heard this afternoon.

Having watched Justice Riordan's frostly response to some of the shenanigans that have taken place on the defence benches, I had earlier thought he might enjoy having the spotlight on some of those events. I could not have been more wrong.

I have rarely seen this judge look so displeased and grim as he did during the presentations on this motion by Imperial Tobacco, Rothmans, Benson and Hedges and the plaintiffs.  (JTI-Macdonald said on Monday that it would not wade in to support Imperial Tobacco. Indeed the senior members of their team seemed to have had a bout of diplomatic flu this afternoon -- they were nowhere to be found).

Suzanne Côté's position (ITL) was that these were substantial new allegations, and that the company had been denied the opportunity to offer proof against them because they were expressed after the proof had closed. She offered a fast-paced 45 minute presentation of legal precedents to support this view.

Simon Potter (RBH) spoke more briefly and (as always) more colourfully about the trial dynamics that should be consideired. He said that it would be a "distraction" for the court and, besides, there were grievances on their side too!  The plaintiff lawyers should suck it up, he suggested. "Litigants who are in a multi-billion dollar case that lasts a long time have to be adult about the frustrations and inevitable excesses that will be seen. They have the duty to leave the court to its serene consideration of the true merits of the case."

(He also cautioned against the filing of billings that would be required if legal costs were applied -- a precedent in disclosure he presumably would not want to see, given that his client is locked in a dispute with insurance companies over not disclosing his own billings! )

Before André Lespérance could respond, Justice Riordan leaned back in his chair and warned him off pursuing a demand for damages at this time. He suggested that the contingency-fee arrangement would in any event limit any potential award. "I also want you to consider the damages that could be awarded in this case, and if there is no damage that would be felt by your clients, I would ask where we are going with this."

Mr. Lespérance, in an awkward position before this unusually discouraging judge, pointed nonetheless to the capacity to demand punitive damages.

Justice Riordan was even more discouraging. He gave Mr. Lespérance a stern look and told him that if they thought he would want to add any further hurdles to keeping this trial on the rails, then they "haven't got a very good reading of me over the past 6 years.  ...  I think I will not do justice to the individuals or the parties to get bogged down in a question that - as important as it is - is secondary to the issues." 

And then he offered some comfort. He said that while he did not think he had the power to agree with ITL's request to strike down any part of the plaintiffs brief, he did have the power to decide when he would hear their arguments. He smiled - a little - and told Mr. Lespérance "I might be happy to see you again in 2016."

Somber as a judge

The discussion of compensation for scorched-earth legal strategies was not the only time during the week that Justice Riordan has looked atypically grim. His voice and body language suggest pain or stress -- or maybe it is just part of the court theatre at this stage of the trial. For whatever reason, it has certainly contributed do the atmosphere of stressful concentration.

The trial resumes on Monday and Tuesday next week. The plaintiffs will finish their presentations on conspiracy, and present their legal arguments and proposed damages.

(This post has been back-dated to provide continuity in indexing).

Wednesday, 24 September 2014

Day 237: Non omne quod licet honestum est

As we left to grab a coffee during the morning break, my colleague blogger, Pierre, commented that the intensity level is increasing every day at the Montreal tobacco trials.  I couldn't agree more.

During their first two days of final arguments, the plaintiffs in the two class actions had set out the framework of their case that Canadian tobacco companies lied for decades about the harms of their products, and that these lies strongly influenced public understanding of the risks of smoking.

Today's focus was on how the tobacco companies promoted their products. (The heading given to this by Justice Riordan was: E. Did [the defendant tobacco company] employ marketing strategies conveying false information about the characteristics of the items sold?).

But before presenting his views on this, plaintiff lawyer Philippe Trudel elaborated on the legal view the plaintiffs are trying to persuade the judge to accept. This is the first time their request that the Judge rule it a civil fault to sell cigarettes has been verbally presented (it will be discussed more next week), and the courtroom seemed to stiffen at its boldness.

"It is important to understand our cause of action with respect to marketing. We say the simple fact of selling cigarette is a civil fault. If this is true, then the fact of adveritising them is also a fault. But if it is not a fault to sell cigarettes, that does not mean that it is not a fault to promote them."  

(He opened with the Roman law principle cited above -- "that which is permitted is not always honest")

Mr. Trudel referred to article 1457 of the Quebec Civil Code as the basis of their claim that the "faults" on the part of the defendant companies continue into the present, and are not only linked with past actions.
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
He also clarified what they were NOT trying to prove. "We are not making the case that a certain advertisement had a certain effect on a specific individual." He said that this could not be done, and that the companies view that it was necessary to do so was akin to their demand of proof that an individual's cancer was caused by smoking a particular brand of cigarettes. An impossible level of proof, he called it - probatio diabolica.

The inexperienced and credulous consumer

He reminded the judge that Quebec's Consumer Protection Act considers not only what manufacturers say about their products, but also what they omit saying, and how they behave.

"We need to look not only at what the words say, but how they are understood by the consumer And not a highly sophisticated consumer, but one who is inexperienced and credulous."  

A recent Supreme Court decision about how Quebec's Consumer Protection Act should be applied was subtly referenced, and the term "inexperienced and credulous" to describe consumers would be repeated over the day.

A useless product?

Mr. Trudel said that cigarettes were in a category all to themselves, the only product that had no use other than to alleviate the addiction it caused. But before he could move further with this idea, Justice Riordan voiced disagreement with two parts of this idea, saying that alcohol was an analogous product and that both alcohol and cigarettes were reputed to "give pleasure". He talked about the pleasures of a glass of scotch.

This was more than a casual comment. The view that cigarettes are "useless" factors significantly in the plaintiffs' arguments. Mr. Trudel provided his view on ways that tobacco differed from alcohol, but later conceded that the plaintiffs own expert in addiction, Dr. Negrete, had referred to the benefit of improved concentration experienced by smokers. 

(Curiously, the utility of smoking has not been much discussed in this trial. When I read this summer that the benefits of smoking were being argued in regulatory proceedings in the United States, I realized that notably absent from the companies' defence in this trial was any evidence of the benefits their products provide.)

If it's wrong now, it would have been wrong then.

Mr. Trudel pointed to several instances where types of tobacco advertising were acknowledged to be inappropriate. Among these were Imperial Tobacco's written arguments ("614. To be clear, ITL does not mean to suggest in any way that “youth marketing” in the tobacco context is somehow an appropriate or tolerable practice. On the contrary..."), and the trial testimony by ITL's president Marie Polet, in which she said it would be "very wrong" to suggest that some tobacco products were less harmful than others.

Before the trial startd, RBH president, John Barnett, had similarly said that encouraging someone to smoke "wouldn't be the right thing to do." (Exhibit 1721-080529).

"We agree," said Mr. Trudel.  "It is not the right thing to do ... When the president of a company admits that it is a fault, I think we don't need a much more elaborated explanation."

On some facts, the Supreme Court has spoken

Again today, passages from the 2007 Supreme Court ruling on tobacco advertising were read to the court.

Today's focus was the Court's findings that tobacco companies had "a long history of misleading and deceptive advertising," that there was a widespread practice of "promoting tobacco consumption by inducing consumers to draw false inferences about the safety of the products," and that "persuading teenagers to take up smoking was a calculated and deliberate industry advertising strategy."

Justice Riordan was not bound to accept these factual conclusions, Mr. Trudel said, but the burden was on the industry to provide new evidence that showed this was no longer the case. 

The views of experts  and the documentary record

Japan Tobacco was the only company to produce an expert witness on advertising and the Mature Market theory (Mr David Soberman). RBH never planned a witness on this topic, and the expert hired by Imperial Tobacco (Richard Semenik) was ultimately never called to testify. Richard Pollay testified about marketing on behalf of the plaintiffs.

Mr. Trudel suggested that a negative inference should be taken about the decision to pull Mr. Semenik, and that Mr. Soberman's views should be discounted in light of the limited access he had to documents, and that those he had reviewed were selected by lawyers.

Instead, he said, the evidence against the Mature Market theory applying to cigarettes could be found in the testimony of Richard Pollay and also on the documentary record. (In a 'Mature Market' advertising serves only to influence market share but does not affect overall consumption.)  He pointed to recent company reports that attributed reductions in consumption to advertising bans (Exhibit 577).

Mr. Trudel spent an hour or so demonstrating why he felt the record did not support the theory that tobacco advertising was aimed at brand switching. He likened the use of terms like 'young adult smokers' and 'under 25' to Orwellian "New Speak" - a vocabulary designed to cover the truth. 

He said that the company's drive to recruit their competitors' customers was eclipsed by their concern about people leaving the cigarette market altogether. He showed documents where ITL expressed the greatest anxiety about health concerns and quitting. "Quitting represents our biggest single source of sustained volume loss." Robert Bexon had warned before he became president of ITL" (Exibit 1110).

(It was the addictiveness of cigarettes that made this a gradual loss, Mr. Bexon wrote. Two years after trying to quit, 98% of Canadian smokers-but-would-be-quitters had relapsed.)

"A 98% failure rate? Is this not important information that should be included in promotions for cigarettes?" Mr. Trudel asked.  

Increasing social acceptability of smoking to forestall quitting was an industry-wide strategy that was implemented at a corporate level through lifestyle advertising, said Mr. Trudel. (Exhibit 116, 119.1, 292-88, 1132, 21). 

Promoting less harmful cigarettes

In their defence briefs, the companies have said that the advertising of low tar cigarettes was done with the direction/support/encouragement of the federal government. Mr. Trudel spent some time trying to lay this idea to rest. 

Manufacturers have a responsibility to know their product, he reminded Justice Riordan. However much it may have made "common sense" to think that filter cigarettes or low tar cigarettes were safer, the companies had an obligation to prove that claim before making it. Indeed, he said, their own research tended to show that they weren't safer - yet they did nothing to counter the view that there were health benefits to these products.

"Instead they hid behind the words of others [the government]. They tried to benefit from the misleading information, even though they knew it was false. Did they tell smokers that there was no health benefit to low tar cigarettes? No. They knew this belief would reassure smokers and prevent them from quitting." 

Mr. Trudel said that the core federal government message was never to "smoke safer cigarettes", but always was to "not smoke," and pointed to where this was validated by the defence expert on warnings, Mr. Young. He said that the federal government had never requested or supported the use of the term "light", and had instead objected to it being used on cigarettes with tar values over 10 mg/cigarette. (The term light was banned by federeal regulations in 2011).  

When they tested additives for safety, the companies showed they had the capacity to assess the relative harmfulness of changes to their cigarettes, said Mr. Trudel. But these tests were never used on filter or lower delivery products. "How can you promote a safety message if you don't test the cigarettes for safety?"

The companies may have agreed to not make overt health claims, but they also adopted policies which allowed for implicit claims. (Exhibits 1026, 129, 944, 243C, 1162). Such claims could be seen in advertisements, but also in package design, he said, pointing to their thoughts on plain packaging as evidence of this. (Exhibits 1680, 527).

Justice Riordan seemed sceptical of Mr. Trudel's opinion that filter cigarettes were no less harmful than non-filtered cigarettes. "Is it not better to have less tar?" 

"Intuitively, yes, but there is no proof," said Mr. Trudel. He showed a series of ads - from the late 1950s to the 1990s - where the special qualities of filter were promoted, said the companies had internally acknowledged these were "gimmicks" and that Justice Denis had described a 1997 filter innovation as "a ruse". 

A picture is worth a thousand words...

Although hundreds of tobacco advertisements have been entered as exhibits in this trial, very few of them have ever been shown in the courtroom. 

Today, after pointing to the strategies behind the ads, and after emphasizing the legal test of what an "inexperienced and credulous" consumer might think, Mr. Trudel took Justice Riordan through a selection of ads. 

For almost an hour, the overhead screens were covered with a variety of ads which promoted low tar brands, which associated cigarettes with healthy outdoor activities, with risk taking, with sporting events. 

Mr. Trudel asked the judge to consider an "inexperienced and credulous" person might make of these representations and how a young person might respond to the lure of the activities that were portrayed.

Well after the regular quitting time, Justice Riordan suggested that the rest could wait until tomorrow. He looked like a man who felt he deserved the pleasurable glass of scotch he had talked about earlier.

Tomorrow, Mr. Trudel will finish his presentation on tobacco marketing and the plaintiffs will begin their presentation on the ways the companies worked together.  

In the afternoon, Imperial Tobacco 's lawyers will present their views that some sections of the plaintiffs' arguments should be struck down and JTI-Macdonald's lawyers will present their concerns about confidential information in the plaintiffs' brief.

Tuesday, 23 September 2014

Day 236: What they knew, when they knew it and what they did with that knowledge

There was no fanfare today. No media. No crowds. The second day of the plaintiffs' final arguments in the Montreal tobacco was a day of concentrated effort that faced no such distractions.

That is not to say that it was a return to the "normal" of the first 30 months of trial. Watching the trial this week is a very different experience.

This is the first time that the lawyers have had the opportunity to speak at length without the interruptions of objections or comments from the floor from the other side. The first time they have been able to show how the various documents and facts they have assembled over months can be woven together to tell a story.

The story-lines were laid down in the questions framed by Justice Jasmin in the ruling that authorized the lawsuit in 2006, which evolved into the outline for written arguments that Justice Riordan laid down last spring.

Three of those questions were addressed by André Lespérance yesterday and this morning:
  • A.  Did [the company] manufacture, market and sell a product that was dangerous and harmful to the health of consumers?
  • B.  Did [the company] know or was it presumed to know the risks and dangers associated with the use of their products? When did they know? When did government know? When did the public know?
  • D.  Did [the company] trivialize, deny or employ a systematic policy of non-divulgation of such risks and dangers?
Yesterday Mr. Lespérance opened his presentation by weaving together events in 1977 to show how the answers to these were woven together. This morning he took Justice Riordan back to what he saw as the beginning of the breach between the companies' knowledge and its actions.

When they knew: 1958

Stories are about people, of course, and Mr. Lespérance began by introducing a few main players: DG Felton, who managed smoking and health issues for BAT, and Carl Thompson of Hill and Knowlton, who managed smoking and health issues for the U.S. companies.

In 1958, Mr. Felton did a tour of the U.S.A. (Exhibit 1398) during which time he met with dozens of researchers and tobacco industry scientists to find out whether they believed that cigarette smoke "causes" lung cancer. He reported that "with one exception the individuals whom we met believed that smoking causes lung cancer." Mr. Thompson was among those counted as believers.

He reminded the judge that the late 1950s was the time when the expert historians hired by the tobacco companies said that a consensus had been reached amongst scientists on this issue.

"You asked at what date they would have known" Mr. Lespérance told the judge. "It cannot be later than 1958. Based on their own documents. Based on the expertise of Dr. Perrins." 

Mr. Lespérance seemed to go out of his way to show where the companies' experts had agreed with his view. He cited frequently from the report of another historian who testified for the industry, David Flaherty, to show what the companies said in this and later periods.

It was in the summer of 1958 that the head of one Canadian company made public statements and issued advertisements which acknowledged the cancer link. Patrick O'Neil Dunne of Rothmans had also written sales lectures to present to his staff which reflected the state of knowledge at that time.

This was a singular event, and happened no where else in Canada (or elsewhere). The anger of the U.S. tobacco companies at his doing so was reported in Time Magazine (Exhibit 20064.45), where the Mr. O'Neil Dunne was described by an insider as the "kid who punks out."

"Rothmans did the minimum," said Mr. Lespérance. "Once. But never again was there a similar statement made by any of the companies. It was only the once."

When they denied: 1958 to 2000

It was not long before Rothmans had been brought back into the fold of denial. Mr Lespérance showed where the companies had continued to deny that smoking caused cancer each time that a public health body reached that consensus:  the Royal College of Physicians report in 1962, The Canadian government in 1963 (Exhibit 541), the Surgeon General in 1964, the Isabelle Committee in 1969 (Exhibit 901).

These were not casual comments -- they were part of a concerted communications campaign that sent the companies' position to every Canadian doctor and created as much media attention as it could (Exhibits 1262, 1397). It was a campaign that used the services of Mr. Thompson as strategist and author of the industry briefs (denied causation) that were submitted to parliament.

(Yesterday, Mr. Lespérance had established that it was only in 2000 that the companies acknowledged causation in Canada).

Justice Riordan again cautioned against infringing parliamentary privilege by referring to comments presented in parliament. "I recognize that we don't want to enter into a debate at the Supreme Court on this," Mr. Lespérance admitted, and pointed to similar statements made outside parliament. (Exhibits 25, 258B).

What public health authorities knew: a dangerous product like no other

Mr. Lespérance did not focus on the range of illnesses caused by disease, but pointed instead to the early recognition by the Isabelle committee (Exhibit 1554.4) and others that cigarette smoking caused more preventable harm than other products or behaviours.

Even the experts hired by the defence to talk about epidemiology - Drs. Barsky, Marais and Mundt - agreed that there was no equivalent product in terms of scale of deaths caused, although they would not provide a specific estimate of how many such deaths there were in Quebec. Mr. Lespérance implied that the companies' could have conceded this earlier in the trial:  "We spent a fortune on experts that were not needed - 'there is no equivalent product', all the experts agree!"

Trying to influence public knowledge

Yesterday, Mr. Lespérance had drawn attention to the industry's research on public knowledge and attitudes about smoking and health. Today he shone the light on their attempts to modify that knowledge by encouraging people to see lung cancer as the result of weaknesses in the individual (constitutional hypothesis) or the result of other circumstances (multifactorial hypothesis). (Exhibit 1466).

He touched on the hiring of scientists like Hans Selye (Exhibit 1399) to influence public views on the benefits of smoking. "Dr. Selye got $600,000 in funding ... and afterwards even Minister Lalonde spoke about benefits of smoking to relieve stress based on this information."

The industry's early knowledge of addiction

If the industry was five years ahead of government in acknowledging causation, it had an even greater lead with respect to addiction, Mr. Lespérance suggested. He showed BAT studies from 1962 in which reported the company's researchers reported they had "found possible reasons for addiction in ... [the] steady absorption of nicotine." (Exhibit 1406).

By the mid 1980s, the importance of addiction was understood to BAT/ITL's marketers (Exhibit 1354.3), even as it was emerging as a concern of public health authorities. Some at ITL were wondering whether the company should perhaps make a product that did not have the consequences of "enslaving" consumers, although the suggestion faced criticism. (Exhibit 11). A decade later, there was a more sanguine understanding that addiction was the key to sales. (Exhibit 266)

Mr. Bexon who made this acknowledgement was not an expert in addiction, Mr. Lespérance acknowledged - "but he is the guy who became head of ITL."

Mr. Lespérance told Justice Riordan that, as they had with other health effects, the companies denied addiction, and encouraged the view that there were other reasons why people smoked. (Exhibit 262C, 487, 9756, 430).

Consumers were even further behind than government in recognizing the addictive nature of smoking, he said, citing a table from the report of the defence expert on consumer beliefs, Mr. Duch. Even by 1994, only 2% of Canadians volunteered addiction as a consequence of smoking.

The importance of controlling nicotine.

Shortly before noon, Mr. Lespérance finished his comments and gave the floor to his colleague, Pierre Boivin. The rest of the day was spent presenting the plaintiffs' view that for decades the companies have controlled the nicotine levels in their products in order to maximize their usefulness as a delivery device for nicotine.

His comments were aimed at answering the third of the set questions given to the parties by Justice Riordan: 
C Did [the companies] knowingly put on the market a product that creates dependence and did [they] chose not to use the parts of the tobacco plant containing a level of nicotine sfficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population.
Mr. Boivin began by criticising the position taken by the companies in their own written arguments, in which they downplay the pharmacological impact of nicotine and deny that it was the focus of their cigarette design efforts. This position is contradicted by the evidence, he said.

He drew attention to the 1972 view of Philip Morris that "the cigarette should be conceived not as a product, but as a package. The product is nicotine." (Exhibit 1419).  In the same year, RJR acknowledged that "the nature of the tobacco business" was a "specialized, highly ritualized and stylized segment of the pharmaceutical industry." (Exhibit 1407) BAT too saw that "the ultimate product of the tobacco industry is nicotine." (Exhibit 1243B).

The companies have also known for decades, said Mr. Boivin, that the cigarette could be altered to improve its function as a nicotine delivery system, such as by giving an additional "kick" by altering the pH level. (Exhibit 1408). Canadian researchers understood that there was an optimum amount of nicotine that should be delivered in each puff (Exhibit 805), and that a minimum of nicotine was required for consumer acceptance (Exhibit 1346).

Compensation and addiction

The role of compensation in maintaining addiction while smoking low-delivery products and in offering health reassurance is also strongly denied by the companies. Mr. Boivin seemed determined to show that this position was not tenable.

He cited several health authorities -- including the Surgeon General (Exhibit 601-2010), the Royal College of Physicians and Surgeons of London (Exhibit 1587) , the World Health Organization (Exhibit 1422, 1591) and Health Canada research (Exhibit 838B).

He also gave Justice Riordan some legal comfort in siding with the plaintiffs on this issue. He cited the Supreme Court of Canada (Exhibit 75A) as well as the views of his Superior Court colleague, Justice André Denis (who ruled in 2002 on a constitutional challenge to federal tobacco laws)  "Nicotine creates a sudden and overwhelming ("foudroyante") addiction.... Smoking brings with it no benefit apart from relieving the addiction to nicotine." (2002canlii46639 translated from French).

Mr. Boivin addressed the companies' denial that they knew that smokers could defeat the purpose of the holes in cigarette filters by drawing attention to their research on this phenomenon, and to their internal correspondence (Exhibit 346AA, 285). He reminded the judge that the publication of ITL research on the topic had been suppressed by management. (Exhibit 1603, 1603.2).

As part of a Health-Canada assembled panel, however, the scientists did agree that most smokers did not understand the function of ventilation (Expert 40346.316), as did ITL scientists in their own review of 16 years of research (Exhibit 388).

Mr. Boivin showed Justice Riordan that the position of the companies about the addictiveness of smoking, as expressed in their written arguments and through their witnesses is at odds with the admissions on their corporate web-sites. (Exhibits 1689).

With his emphasis on the views of 21st century public health authorities, Mr. Boivin provided a complement to the historic review of the morning - one which seemed aimed at establishing a contemporary concern for the product in its current use.

Feedback from the bench

Justice Riordan listened quietly to the presentations, but was far from passive.

At few times, he gave Mr. Boivin little comfort. He challenged Mr. Boivin's interpretation of certain documents. He pushed for details that were missing. He presented alternative viewpoints. (Was it not the case that the relative amount of nicotine was increased "not in order to increase the amount of addiction, but was an an effort towards a health improvement (less tar))?"  

Tomorrow the plaintiffs turn to a fifth question - Were tobacco products marketed in a misleading way?

Monday, 22 September 2014

Day 235: The choices they made

It would appear that I was not the only one eager to witness the resumption of the Montreal tobacco trials. For the first time since the trial opened 30 months ago (on March 12, 2012), it was standing room only in Justice Riordan's court as the plaintiffs prepared to present their final arguments in this long trial.

For once the public gallery was more populated than the lawyers' benches.Sitting on the plaintiff's left hand side of the room were a dozen or so members of the class of the Blais class action - smokers suffering from lung cancer, throat cancer (cancer of the larynx, the oropharynx or the hypopharynx) or emphysema. Among them were the son and widow of Jean-Yves Blais, who died a few months after the trial of the lawsuit that carries his name had opened. Also present was Cécilia Létourneau, the representative of the Létourneau class action for those who have become addicted to cigarettes. The plaintiffs were also supported by many friends and colleagues who were present to watch this big moment.

The defendants' side was filled with both new and familiar faces - including some anonymous, if highly noticeable, consultant attorneys.

And, very unusually, there were also several journalists from the mainstream media present.

A big crowd. A sense of excitement. So of course there was a delay.

Will this show really go on?

All summer I had wondered whether Imperial Tobacco would find a way to delay his last stage of the trial. So successful had they been at causing delays in earlier stages, that I even placed a $5 wager that they would come up with a new legal device to preempt proceedings. I lost the bet.

There was a delay - but it was due to technical problems associated with the overhead projectors. The silver lining in long pause this inserted at the beginning of the day was that the retreat to the hallway allowed the media to gather their interviews comfortably and gave everyone a chance to catch up on a summers' worth of news.

That's not to say that Imperial Tobacco did not come up with something unexpected to insert into the proceedings. They did indeed come up with yet another motion which will trigger yet another debate and yet another ruling by Justice Riordan - which they can maybe yet again appeal.

Later this week (Thursday) ITL's lawyers will argue their motion to strike out the parts of the plaintiff's argument which allege that the companies abused court procedures. (If I were Justice Riordan, I would love a detailed discussion of the court-room tactics used by that team over the past years.)

As it was, the morning was well underway before André Lespérance began his introduction to the plaintiffs' overview -- a case which will be presented over the coming days by the members of their legal team.

Oral and written arguments

Justice Riordan has had the plaintiffs' written arguments for more than two months, and has had the written version of the defendants' sides of the story for a week or more. There is probably nothing that will be said over the next weeks that he has not already read and grasped.

He complimented the legal teams on the quality of these briefs, saying that this had made his job easier. "But they could have been shorter," he observed with a smile. "Two thousand pages is a lot to read!"

After boiling down hundreds of days of testimony and thousands of documents into a core argument, the lawyers at this stage must make yet a further distillation to fit what they need to say into the time (about 4 days each side) and attention span available. More than any previous stage of the trial, the performance art aspect of lawyering shone through today.

Framing. Linking. Reminding

André Lespérance's job was to set the stage. He began by quoting from his opponent in this case, the head of JTI-Macdonald's defence team. He read back words used by Mr. Guy Pratte at the beginning of the trial: in life, as in law, one must accept the consequences of one's choices.

"We agree with this," said Mr. Lespérance today. "And this class was authorized to examine the choices made by the defendants."

Mr. Lespérance elaborated over the day on the choices the companies had made. "The first choice they made -- very early, and in the 1950s -- was to not inform consumers of the risks of their products. ... They made the choice to sell a product that causes serious illness and addiction in the large majority of users."

A morning spent in 1977

A difficult task in telling a story through documents is finding a way to link seemingly disparate events. Mr. Lespérance used the device of shining the spotlight on documents from the year 1977. This allowed him to contrast the internal knowledge of the documents with their external activities.

With thousands (and thousands!) of exhibits on the trial record, it might be easy to challenge any selection of documents as mere cherry-picking. But by focusing on so many elements from just one year, Mr. Lespérance gave the impression that it was a very deep bowl of cherries indeed.

It was a good choice of year -- 1977 was smack dab in the middle of the 40 years covered by this trial (from late 1950s to 1998). And there was apparently much that happened in it:
  • the internal reflections of company scientists that the time had passed to deny that tobacco caused cancer and other diseases (Exhibits 125, 29)
  • the acknowledgement of the scientists that it was fear of lawsuits that stopped the companies from being more truthful (Exhibit 29), and turned them into the "Flat Earth Society" (Exhibit 948)
  • the creatiaon of the the International Council on Smoking Issues (ICOSI)
  • the companies secret pact to not acknowledge health risks. (Exhibit 1507)
  • the efforts by the companies to countering anti-smoking activities. (Exhibits 128, 957, 958, 580, 580C, 968I).
  • the rejection of government requests to improve health warnings on cigarettes (Exhibit 50004)
  • the use in Canada of disinformation produced by the Tobacco Institute (Exhibit 958, 15C, 475) 
  • the reliance on industry-funded scientsts to create a controversy (Exhibit 964C)
  • the "noise" created by advertising and public relations to dilute public health messages 
  • the awareness of the companies that smokers did not fully understand the risks of smoking, and that they believed that changing brands (i.e. lighter cigarettes) would reduce their risks. (Exhibit 987.6, 987.8) 
  • the companies' knowledge that smokers were misled by terms like "light" (Exhibits 243, 954)
Mr. Lesperance returned frequently to the actions of the companeis when faced with the knowledge of the harms they were causing. "What is their responsibility? To tell the truth or to tell a lie? You will see that through the CTMC they put a plan in place to deny causality. They saw their responsibilty as being to shareholders, not to consumers." 

An afternoon spent in denial

Having anchored his themes in 1977, Mr. Lespérance spent the afternoon showing how the same events continued and evolved in the following years.  As he presented it, the strategic thinking became even more cynical. 

In response to a hint from Justice Riordan that the view that there might be some logic to the companies' position that the federal government was more credible author of attributed health warnings than unattributed ones, Mr. Lespérance presented a series of exhibits showing the companies resisting non-attribution for legal reasons.

He showed a selection of documents from the mid 1980s that showed ITL market planners visualizing increasing sales by discouraging healtahconcerns. Among these were the thoughts of ITL's future president, Bob Bexon (Exhibit 267). 

Against the companies' current position that they have always acknowledged the risks of smoking, Mr. Lespérance presented several examples from the 1980s and 1990s of their clear denial. (Exhibits 850, 841, 867, 26).

The most historically memorable of these, of course, were the times that the companies testified in Parliament, before the Isabelle Committee in 1969 and during the passage of legislation in 1987, 1988 and 2000. Justice Riordan spoke more discouragingly of the use of any parliamentary records than he has in the past - even if the record involves a newspaper report of a parliamentary comment. 

"The key is the purpose," Justice Riordan Stressed. "A document could be privileged for one use and not for another." 

Mr. Lespérance was, however, able to use the testimony of the trial's first witness - Michel Descoteaux - to establish that it was not until 2000 that ITL publicly acknowledged causation.

More dangerous and still the biggest health problem

Cigarette smoking has not become safer over the past decades, Citing more recent epidemiology, Mr. Lespérance said smoking was more dangerous than before, contrary to "what the companies say -- that there has been no increase in risks,  despite changes in the design."

"Even now, cigarettes are the largest public health problem - as they have been for years."

Selling cigarettes is a fault?

Mid afternoon Justice Riordan made a rare intervention as Mr. Lespérance was explaining the importance of social acceptability to smokers, and how cigarette advertising created a noise that prevented public health messages about smoking from reaching smokers.

"Your point is that selling cigarettes is a fault?" asked Justice Riordan. "The simple fact of putting a favourable impression on the product is a fault, because it is harmful? ("nocif")

"Yes"  was the clear answer. 

Tomorrow Mr. Lespérance and Pierre Boivin will present the case on addiction and "safer cigarettes"

Thursday, 18 September 2014

The end of a long intermission

Only a few days are left until the Third Act opens on the Montreal tobacco trials. On Monday, September 22, the final arguments begin.

The plaintiffs are scheduled to present their case in September, with the defendants making their arguments in the following two months. (The calendar is pasted below. It may well change - caveat lector!)

The first two acts, as each side presented its evidence, were prolonged indeed. Since the curtain opened on this trial way back in March 2012, there have been 234 days of trial, 76 witnesses, more than 8,000 exhibits (not including several thousand news clippings) and 28 decisions written by Justice Riordan or the Court of Appeal. The trial record already exceeds 24,000 pages of transcript.

To this exhausting record some more thousands of pages were recently added. This summer Justice Riordan received four sets of written arguments: these "Notes and Authorities"will be the basis of the competing views that will be thrashed out in the coming weeks.

It promises to be a most interesting fall! Look for our first report early next week.

(Amended) hearing schedule