Wednesday, 21 March 2012

Day 7 - Industry objections intensify

Day 7 of the trial began with Mr. Descôteaux excluded from the courtroom as the lawyers spent half an hour debating whether the plaintiffs should be allowed to continue questioning him on Imperial Tobacco's use of the courmarin as an additive.

Plaintiff-side lawyer André Lespérance referred Justice Riordan to numerous documents that are not yet part of the trial record but which the plaintiffs plan to raise later concerning the alleged use of coumarin as an additive by Imperial Tobacco. Imperial lawyer Deborah Glendinning interupted repeatedly to complain that the judge should not rely on these documents because they are not yet evidence, but Justice Riordan made a distinction between whether they are evidence as to the merits of the case versus whether they could be used to determine whether questions to Mr. Descôteaux would be relevant to the case. He allowed the questioning to proceed.

In a non-sequiter to this discussion, Rothmans, Benson and Hedges (RBH) lawyer Simon Potter rose to complain to the court that this blog referred to coumarin as rat poison yesterday. “It is not rat poison!” he declared emphatically.

It is currently unclear whether the distinction between whether coumarin is a rat poison or not will be a relevant issue in the outcome of the trial. Should it be relevant to the outcome, then clearly its proper characterization will be disputed. What came to light from today's evidence was that Imperial Tobacco also takes issue with the characterization of coumarin as rat poison, on the basis that being the active ingredient in some rat poisons is not same thing, in Imperial Tobacco's view, as being rat poison per se.

Mr. Johnston spent most of the morning questioning Mr. Descôteaux on various documents prepared to respond to questions on Imperial Tobacco's use of additives. Mr. Johnston spent the most time comparing the final version of a question and answer document that Mr. Descôteaux sent to Imperial President Jean-Louis Mercier on May 2, 1985, (exhibit 47) with a draft version of the same document dated two days earlier (exhibit 50). The earlier draft contained many handwritten changes in handwriting that Mr. Descôteaux admitted was his own.

Almost all of Mr. Descôteaux's handwritten changes to the draft were made to the final version, including completely striking out a talking point that would have denied that Imperial added nicotine to any of its products. Mr. Descôteaux said he had no recollection of why he made any of the changes.

At this stage of the trial, little evidence has been led on what the health effects of using coumarin, or other additives, in cigarettes would be. The main issues of the morning were what Imperial Tobacco knew and what it told the public about additives.

An objection-filled afternoon

The afternoon court session began with Ms. Glendinning rising to discuss witness scheduling matters, then to complain about the fact that Mr. Descôteaux's testimony has gone on much longer than the plaintiff-side originally estimated. Mr. Johnston assured the court that Mr. Descôteaux's testimony would end on Thursday.

After complaining about how long Mr. Descôteaux's testimony was taking, the tobacco industry lawyers then used up a significant part of the afternoon session on objections. The most noteworthy of the objections came when Mr. Johnston tried to introduce a newspaper article in which Mr. Descôteaux was quoted. However, since Mr. Descôteaux could not recall giving the interview, the industry lawyers objected to entering the article into evidence.

Mr. Johnston noted that lawyers normally consent to admitting newspaper articles, since the fact that they were published can be verified online, but the industry lawyers refused to consent to this. This means the plaintiffs will likely have to subpoena the journalist who wrote the article to establish the fact that he interviewed Mr. Descôteaux, then recall Mr. Descôteaux at a future time to question him about his reported comments. Mr. Johnston called this "perfectly abusive" on the part of the industry. Even when Justice Riordan assured the industry layers that he would not consider the article proof of the truth of its contents, but rather only consider it proof that the article had been published, which would have enabled Mr. Johnston to then question Mr. Descôteaux on his comments, the industry lawyers would not change their position.

The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again

Another document that elicited a number of industry objection, although this one was admitted into evidence, was a 1974 British American Tobacco "Group Smoking and Health Policy document" (exhibit 54A). The tobacco industry lawyers repeatedly objected to Mr. Johnston's attempts to question Mr. Descôteaux on the contents of the document on the grounds that Mr. Johnston had already asked Mr. Descôteaux about the same issues. This led Justice Riordan to say at one point: "The witness didn't answer the question clearly when he was asked before, perhaps that's why he's being asked again. I'll permit the question."

Among the guidelines set out in this document were "Warning notices in advertising should be resisted as long as possible" and "If Governments insist on warning notice on packs the wording should make it clear that is emanates from a Government source".

Suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking

Toward the end of the day, Mr. Johnston questioned Mr. Descôteaux on a report he submitted to British American Tobacco in March 1981 "covering smoking and health developments in Canada" in the fourth quarter of 1980 (exhibit 56A). Among other things, Mr. Descôteaux's report that the Quebec government was planning an "intervention to discourage smoking" and that the Canadian Tobacco Manufacturers Council (CTMC) was planning a lobbying campaign to oppose some of the proposals.

The report also summarized Imperial Tobacco's efforts to influence an employee "anti-smoking educational campaign" undertaken by Alcan Aluminum Ltd., which Mr. Descôteaux called "Canada's major aluminium producer - and an important Imperial Tobacco supplier." Mr. Descôteaux's reported that, after Imperial made contact with an Alcan official, the official expressed an interest in "suggesting lower "tar" and nicotine cigarettes as an alternative for those employees who cannot or do not wish to stop smoking."

While questioning Mr. Descôteaux about the CTMC's lobbying in Quebec, Mr. Johnston asked Mr. Descôteaux if there were ever proposals to discourage smoking that went unopposed by the CTMC.

"Nothing comes to mind," replied Mr. Descôteaux, although he insisted that there might have been.

Tomorrow will likely see the end of Mr. Descôteaux's testimony for now, but he may now need to be recalled in light of the industry lawyers' refusal to admit the newspaper article objected to today.

By Michael DeRosenroll for Cynthia Callard