Monday, 30 April 2012

Day 20 - Mr Bédard and Canadian Astroturf

See note on accessing documents at the end of this post.

After an week's break, the trial of the two Quebec class actions against tobacco companies resumed this morning without missing a beat.  Lawyers for all 3 sides (the two plaintiffs, the three defendant tobacco companies and the federal government as defendant in warranty) were at the ready when Justice Riordan entered the room at 9:30.

The lawyers took up where they had left off eleven days ago: squabbling about witness scheduling and document exchange.

After listening to complaints from both sides - "mish mash!" "pell mell!" "midnight e-mails!" -  Justice Riordan underscored his strong preference to have witnesses from each company scheduled following one another, and not interspersed with witnesses from other companies. In doing so, he dropped another hint about his approach to the case, saying that he would not be writing his judgement by theme, but would do so by company. "The policies were not the same for each company," he said.

He also granted more time to the federal government to fulfil some of its undertakings to the industry and to submit required filings with the court. The federal government will not have to submit its declarations on case management until the end of August -- some weeks after the August 9th hearing at the Appeal Court that has the potential to remove them from the case.

Tomorrow may bring a revised schedule of future witnesses...

Mr. Bédard and the Smokers Freedom Society 

It was thus some time into the morning session before the witness for the day, Mr. Michel Bédard, the Smokers Freedom Society, was called to the stand.

Waiting to testify, Mr. Bédard looked very much like the college philosophy teacher he had once been.  At his feet was the scholar's sturdy two-strap brown leather satchel. A picture of Thomas More was on the cover of the book in his hands. His concession to the formality of the court room was to wear a blazer and flannels, with a coloured shirt and tie.

Mr. Bédard was not originally scheduled to testify at this trial, and was introduced to the court in the opening days during the testimony of Michel Descoteaux, who said that they had become friends over the years.

Michel Bédard
at the Institut
économique de Montreal 
The two men share more than their age (65), their fondness for beards (Mr. Bédard's is a chin curtain reminiscent of Everett Koop), and a friendship. Like Mr. Descoteaux, Mr. Bédard has the ability to use a question - or even a preamble to a question -- as a jumping off point for an explanation or anecdote. More than once, Justice Riordan attempted to have the witness's answers more immediately (and briefly) linked to the questions.

Nonetheless, through Mr. André Lespérance's questions and  introduction of more than 20 documents (some under reserve), a discernable picture was drawn of the role that Mr. Bédard played in the development of Canada's first "astroturf" smokers' group, and the role that he tried to play in the development of public policy on tobacco issues.

(Astroturf groups are fake grass-roots movements and there were subsequent groups, including My Choice, that emerged after the Smokers Freedom Society dissolved around 1994).

Mr. Bédard traced his involvement in the Smokers' Freedom Society to a suggestion from Pierre Lemieux, whom he described as a 'somewhat notorious' libertarian. After reflecting on the proposal and his feelings as a smoker of being under seige, he met with Mr. Lemieux and with Mr. Descoteaux, who was acting on behalf of the CTMC to discuss how this might be done.

Before long, an understanding had been reached and a formal approach was made to meet with the senior management of the then four member companies of the CTMC (Exhibit 197). Chief among Mr. Bédard's concerns at the time, the letter would suggest, was the issue of money. Of the seven items identified for discussion, five involve the need for financial guarantees. Eventually, Mr. Bédard reached an agreement with the companies that included financial protection for 5 years. (Exhibit 198A).

The Society's dependence on the industry, and Mr. Bédard's attempts to match the work of the Society to the interests of the industry were shown in semi-annual and annual reports. In the 56 pages of the first half-year report in March 1987 (Exhibit 202), Mr. Bédard warns that the organization faces and uphill battle and recommends expanding its work.  He notes that the only members of the organization are "associated, in one way or another, with the tobacco industry."

His second annual report, made in November 1988, (Exhibit 203), after federal legislation to curb tobacco advertising and smoking in public places had passed, reports on the work of the Society during these eventful times to slow down these events.

The Society was active in virtually all of the challenges the industry was facing: it appeared before parliament to speak against legislation, (Exhibit 206, Exhibit 204) recruited test cases to challenge smoke-free laws, commissioned studies to dispute claims about second hand smoke, and helped "spontaneously-formed groups of smokers" push back local bylaws.

Out of this rich document, Mr. Lespérance drew Mr. Bédard's particular attention to what he had written about the relationship between the activities of the Smokers Freedom Society and the tobacco companies:

One element which frequently crops up in contacts between the SFS and the industry and which was publicly referred to at the last Infotab Workshop is the fact that organizations such as the SFS, FOREST, etc. can say or do things which the industry, for various reasons, cannot allow itself to do.

Mr. Lespérance questioned Mr. Bédard about ways in which activities of the Smokers Freedom Society had been aligned to the interests of the tobacco companies.  These included the commissioning of a report (by Dr. Dollard Cormier) to counter conclusions of the Surgeon General and the Royal Society of Canada that nicotine is addictive, and an economic analysis (by André Raynauld) of the net economic benefit from smoking. (Exhibit 209)

To each example, Mr. Bédard provided a similar reply: he had wanted to study these issues in order to find out for himself whether the claims tobacco use faced were justified.  "If your acts have consequences on third parties, you have to take them into consideration," he said.

It was in order to protect the Society's integrity that these actions were taken, he suggested.

If nicotine truly were addictive, then the concept of the freedom to smoke would be called into question. Similarly, if second hand smoke truly were unhealthy, then the right of smokers would have to be balanced against the impact on others. If smokers truly were a drain on the economy, then the freedom to smoke woul be weighed against the externalized costs.

As it turned out, all of the studies that Mr. Bédard commissioned came to the conclusions that supported the continuation of his work:  the conclusions were that cigarettes were not addictive, second hand smoke was not harmful, smoking did not harm the economy.

Other documents which showed the co-management the Smokers Freedom Society were introduced as evidence.  These included a 1989 memo circulated at the CTMC that indicated the Society's budget had grown to over a half million dollars, and focus group studies on smokers to test expanding activities across Canada. (Exhibit 208).  Plans to expand to Ontario were presented (Exhibit 205)

Mid afternoon, Mr. Lespérance began to sound more exasperated at the unwillingness of Mr. Bédard to acknowledge the close fit between the work of the society and the interests of the industry. In the background document (Exhibit 214a) to the wideranging press release (Exhibit 214) that launched the Society, Mr. Bédard had written: Besides, no study has proved to-date that smoking has caused actual dependence.

Mr. Lespérance put it to him - a little more forcefully than he usually speaks - that it was difficult to say that "no study had proved" when Mr. Bédard had access to studies from the Surgeon General, and that his financing was coming from the tobacco industry. Left hanging was the clear message that his answers didn't wash.

Michel Bédard seemed to redden slightly at this point, and his answer seemed a little less polished.  He had done a literature review, he explained, and counted on material provided by Infotab and the Tobacco institute.  "I would not have written something like that if I did not have the elements to support it."

In another press release, this one denouncing the first health warnings developed under Canadian law, Mr. Bédard wrote that the Government of Canada was lying to smokers in its proposed message that smoking was a major cause of lung cancer (Exhibit 216).  This warning was "untrue, totally untrue," Mr. Bédard wrote in 1988. Today, he skated around the issue. "Tobacco is not THE cause of lung cancer," he said, but acknowledged that it could be a 'co-factor'.

Among the last documents to be filed were the newsletters, the Calumet, that were sent by the Smokers Freedom Society to members, politicians, and the media.  Not yet available electronically, these documents show a skill for sophistry that, based on the testimony today, remains sharp two decades later.

Mr. Bédard told the court that he left the Smokers Freedom Society in 1990, and subsequently established the publishing house and editing service, Editions Varia.

Mr. Bédard's testimony will continue tomorrow.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Thursday, 26 April 2012

Res judicata. Stare decisis. Oy vey!

My head is still hurting a little from attending last Friday's hearing at the Court of Appeal in which the federal government sought -- still unsuccessfully -- to extricate itself from the Montreal class action trial against Canada's 3 large tobacco companies.

To cut to the chase - the decision on whether the federal government can appeal two decisions regarding the nature of its involvement in the trial has been postponed to August 9th, when a panel of judges will hear the request for Appeal and possibly the appeal itself.

A limited account of the hearing is at the end of this post.  But first a little background on the "Action in Warranty" that has to date trapped the federal government in this litigious ménage a trois.  

(If you are have trouble telling the players, we've prepared a scorecard!)

The story so far

First there was the Knight case

The Blais and Letourneau lawsuits, which were launched in 1998 and have now reached trial stage in Montreal are only one of several litigation efforts that have been launched in Canada since the 'third wave' of tobacco litigation surged in the  United States in the mid 1990s. 

Another class action suit (and one of only 3 yet to be certified in Canada) was filed in 2003 against Imperial Tobacco in Vancouver by Klein Lyons on behalf of Kenneth Knight. The Knight case concerns the allegedly wrongful marketing of 'light' cigarettes, specifically Imperial Tobacco's best-selling Player's lights.

Imperial Tobacco responded to the Knight suit by filing, in April 2004, a Third Party Notice agains the federal government, claiming that the way in which 'light' cigarettes were designed and sold was directed by the federal government. [They were only following orders?....]

This was the first time, to my knowledge, that the industry had tried to shift responsibility in a tobacco lawsuit to government regulators. If you know of earlier examples, please let me know!

The federal government responded to this novel strategy by siding with the tobacco companies in recommending to the court in October 2004 that the Knight case not be certified.

What made the decision of the federal government to stand with the tobacco companies in a lawsuit so noteworthy is that it was done while Ujjal Dosanjh was federal health minister.  Mr. Dosanjh, it will be remembered, had previously served as Attorney General of British Columbia in 1998 when that province became the first Canadian jurisdiction to file a suit against  the tobacco companies. Included in that lawsuit was a claim for damages resulting from the deceptive marketing of light cigarettes.

Despite the federal government's efforts to quash the Knight case, it was certified in February 2005 - only days before the Blais and Letourneau cases were certified in Quebec.

Then there was the Sparkes case

In July 2004, a second class action suit regarding light cigarettes was filed.  This time it was in Newfoundland, the lawyer involved as Ches Crosbie and the class representative was Victor Todd Sparks.

Imperial Tobacco continued with the same playbook, and so did the government. As it had in the Knight case, the company again filed a Third Party Notice against the federal government in January 2006. As it had in the Knight case, the federal government sided with the industry and asked that the case not be certified. This time, however, the industry and federal government were successful and the certification was denied in December 2008.

Next came the B.C. government claim.

Having twice convinced the federal government to side with them, the tobacco companies again filed third party notices against the federal government in 2007. This time the case was, at a political, legal and strategic level, more complex.

The case involved was the first (and at that time the only) provincial suit to be filed to recover health care costs associated with tobacco use.  It had been first filed by British Columbia almost a decade earlier, in November 1998, and had already tumbled through successful industry challenges to the enabling legislation and consequential adjustments to the law and the suit.

Two months after learning, in April 2007, that the Supreme Court would not allow further challenges to the revised legislation, tobacco companies used third party notices to draw the federal government into the case. Between June and November 2007, each of the domestic and international companies that were involved in the suit (Imperial Tobacco, Rothmans Benson and Hedges, JTI-Macdonald, RJ Reynolds, RJ Reynolds International, BAT Industries and Carreras Rothman) filed their own Third Party Notice.

The feds push back - all the way to the Supreme Court.

Having failed to convince the B.C. courts to reject the Knight class action, the federal government turned to the courts to ask it to dismiss the third party claims.  The B.C. Supreme Court agreed, and the notice was dismissed in July 2007. (This was one month after Imperial Tobacco filed its Third Party Notice in the B.C. government's damages recovery suit). Nine months later, in April 2008, the same court agreed to dismiss the third party notices that had been filed in the B.C. government claim.

With the same issues, the same courts and the same litigants, the contest with tobacco companies over whether or not there was a federal role in either the Knight case or the B.C. government claim were subsequently heard and decided simultaneously.  

In December 2009, the B.C. Court of Appeal (which is a higher level court than the B.C. Supreme Court, despite the common connotations of the term 'supreme court') overturned the core of the previous decisions on the Knight and B.C. government cases. Once again the federal government found itself on the hook, and the issue was bounced upstairs to the highest court in the land.

When the Supreme Court of Canada reviewed the lower rulings in 2011, international and domestic tobacco companies lined up against the federal government and provincial government intervenors, including two other provinces which had filed suits similar to B.C.'s by this time (Ontario and New Brunswick).  In late July, the Court unanimously struck out the industry's claims agains the federal government in both cases.

Any hopes the industry might have had that the federal government would be in the cases and would side against the plaintiffs, as they had in earlier stages of the Knight and Sparkes cases, were put to rest.

Meanwhile, a different story unfolds in Quebec

Attempts by the tobacco companies to engage the federal government in litigation followed a somewhat different path in Quebec than in the B.C. cases or in Newfoundland.

The companies did not move forward with Actions in Warranty (similar to Third Party notices) in the Quebec cases until almost 4 years had passed since they first tried the strategy in the Knight case. It was not until leap year's day, February 29, 2008 - ten years after the class actions were first filed -  that Imperial Tobacco, Rothmans, Benson and Hedges and JTI-Macdonald filed such claims.

For its part, the federal government also shifted its game.  Unlike the Knight and Sparkes class action suits, it did not try to scuttle the Blais and Letourneau cases.  Nor did it ask the Quebec courts to remove it from the lawsuits.

Instead, it negotiated a role on the plaintiff's side of the court. On July 4, 2011 (three weeks before the Supreme Court ruling in Knight and the B.C. government claim), newspapers began printing notices that a deal had been struck between the federal government and with the Quebec plaintiffs. 

In this proposed settlement, the federal government promised to remain in the trial and to cooperate with and assist the plaintiffs, as well as providing them with up to $1.6 million to defray the costs of expert witnesses.  In return, the plaintifs promised to release the government "from any and all manner of claims by the class members."

This settlement could not be put into place without the agreement of the court - but that agreement would not come to pass. On September 21, 2011, Justice Riordan ruled  that the settlement was not in the interests of the class members (the smokers and victims of lung disease on whom the class actions were being sought).  Given the magnitude of the $27 billion claim, he said, the companies might go bankrupt. In that case, the settlement would prevent the claimants getting money from the (non-bankrupt) government if it was eventually found responsible and was therefore not in the interests of the class members.

The federal government did not appeal this decision.  Instead, they turned to the strategy that had worked for them in B.C. -- asking to be dismissed from the cases. Justice Riordan, who had by then overseen trial developments for almost 4 years, heard their motion. Again he rejected the federal government's request for a change in its status in the proceedings.

In his February 2012 ruling, Justice Riordan felt that last year's Supreme Court decision regarding the B.C. suits did not necessarily apply to these Quebec cases, and not only because of the differences between common and civil law. 

[T]he SCC Judgment must certainly serve as a beacon but, in light of the differences between the Actions in Warranty and the TPNs, it will not necessarily see us safely into port."

(In a separate ruling, he permitted Imperial Tobacco to expand the grounds of its claim against the government.)

Justice Riordan chastised the federal government for its delay in trying to get out of the Quebec actions:

[12] There is an additional procedural aspect that the Court cannot ignore when considering Canada's Motion to Dismiss: its timing.

[13] The Companies served their Actions in Warranty on Canada in February 2008, nearly four years before Canada served the present motion. At that time, the Superior Court of British Columbia had already granted the Motions to Dismiss based on Crown immunity and appeals had been launched. In 2008, Canada did not hide its intention to invoke the immunity provided for in the CLP Act against the Actions in Warranty; the only question was when.

[14] On numerous occasions, the Court invited, and then beseeched, Canada to present its Motion to Dismiss in time so that these files could follow what appeared to be an inevitable path to the Supreme Court of Canada hand in hand with the BC proceedings. The Court's urgings fell on deaf ears. Canada chose to invoke the point as part of its Defences in Warranty filed in June 2011.

All of which brings us to the Quebec Court of Appeal.

When the federal government appeared before Justice Nicholas Kasirer at 2:00 on the afternoon of  April 20th, to seek leave to appeal the two February rulings of Justice Riordan, it was thus at least the sixth time that they tried to extracate themselves from Canadian litigation against tobacco companies (three times in British Columbia, once before the Supreme Court and once previously in Montreal).

Quebec Court of Appeal, Montreal
The regular proceedings of the class action are held on the 17th floor of a modern court room.  But the Court of Appeal is housed across the street in a former 'Palais de Justice' that was built many decades earlier.  (It was designed by and is now named after the same architect, Ernest Cormier, who designed Canada's Supreme Court.) 

The stone walls, high wood panelling and flamboyant art-deco elements give court an almost cathedral-like quality. With the change in setting came a change in atmosphere - more hushed, more subdued. Some sombreness on the left hand side of the court seemed justified:  it didn't start out like a cake walk for the federal side.

From behind the high wooden bench, Justice Kasirer began by telling the court he was struggling with the choices before him -- between the rock of handing the Court an issue it couldn't handle and the hard place of further appeals.
Justice Kasirer
Nathalie Drouin, senior counsel with Justice Canada, faced some struggles of her own in trying to present her case. She was peppered with questions by the Judge and diverted from her prepared comments on why the appeals should be allowed. Along with questions of law, she observed that the industry was treating the government as a defacto underwriter for their liabilities.

Maurice Regnier, on behalf of the Attorney General, was given a very short time to comment on why an appeal should also be allowed on the ruling in favour of an amendment to Imperial's claim against the government.

Suzanne Coté, representing Imperial Tobacco in this court as she did in the main trial,  argued that the Supreme Court decision should not apply in Quebec because of the unique circumstances of Quebec. (After she hastened to assure the judge that she was a federalist, she was reminded by Justice Kasirer that there was one crown that covered both systems.)  She claimed that uncertainty over the federal position in the trial affected the companies' right to a fair trial, in that the questions that the federal lawyers were allowed to ask would became part of the evidence before the court even if they were dismissed from the case. "We want them with us the whole time," she said.

The proceedings were predominantly in French until her Toronto-based colleague, Craig Lockwood, took the floor to speak to Imperial's amended motion. Ever more the whipper-snapper, he parried with the judge about the extent to which his client might have been motivated by strategy in amending its claim.

Doug Mitchell spoke on behalf of his client, JTI-Macdonald. He pointed out that neither his client nor Rothmans, Benson and Hedges were changing their claim against the government, and then drew attention to what he characterized as the strategic decision of the government to not push for dismissal while the B.C. issues were before the court. 

When Justice Kasirer asked him whether the government did not have the right to do whatever they wanted to, Mr. Mitchell characterized the government's decision as 'wanting the best of both worlds.' To Mr. Kasirer's inquiry whether he was suggesting an abuse of process, he hastened to say he would not go that far.

Two hours after the session had begun (and at least 15 minute after the judge began closing his books, gathering his materials and looking impatient as Nathalie Drouin replied to the industry's comments), the session was suspended. 

Justice Kasirer returned at about 4:30 to inform the court that in both cases he was punting the decision to grant leave to appeal on both cases.  The reservations he had expressed at the outset of the proceedings were reflected in his judgment:

"[5]  Given the gravity of the question, I am of the opinion that a bench of this Court should hear the motion for leave to appeal and, if it sees fit, entertain the appeal on the merits.  Rather than grant the motion, risking that the bench find itself without jurisdiction, I propose to defer the motion to the Court."

Discussions then turned to details of the hearing.  When? August 9th. How long for each party? Less than they wanted (2 hours for the government, 2 hours for the tobacco companies to share and 10 minutes for the Blais and Letourneau lawyers. Paperwork? A federal paper of no more than 30 pages to be circulated by May 31 2012.  (No one in the court room noted that this was World No Tobacco Day). The industry to circulate their response, again no more than 30 pages, by June 14th. Lest anything be left to chance, the size of the paper and font size were also defined.

As for the head-hurting bits? More about that some other time.

So where do things stand?

Until August 9th, at least, the proceedings in the trial will continue, and the federal government will, in effect, also be on trial for the way in which cigarettes were designed and marketed to Quebecers.

Taking sides

One of the fundamental questions in politics and policy, as in law, is "who's side are you on?"

In the class actions in British Columbia and Newfoundland, the federal government sided with the industry. Now, 6 years later, they are aligned with the plaintiffs against the industry. 

From a public health perspective, it seems a more natural position for the government to sit in opposition to the manufacturers of one of the world's most deadly inventions. But not everyone sees it that way.

During a discussion on the potential scope of questions by federal lawyers during the trial, Suzanne Cote chastized the decision of the plaintiffs and federal government to collaborate.

"Why would a plaintiff who is suing my client come to the aid of a defendant-in-warranty against me? It is illogical... What interest do they have in the success of the defendant in warranty [the federal government]. None!  To the contrary, it is against the interests of their members that the defense in warranty succeeds."

There have been stranger bedfellows.

The main trial resumes on Monday, April 30th.

Friday, 20 April 2012

Week 5 - Documents of the week

See note on accessing documents at the end of this post.

About 50 new exhibits were produced during the 5th week of the trial (witnesses were heard on April 17, 18 and 19th), of which only a few were "on reserve" (i.e. not available to the public).

The Plaintiff's document web-site has an excellent a word-search function on its search page, and is a good source for any specific document needs.

The list below groups some of the more substantive exhibits introduced this week by topic, and presents them in chronological order.

Short on time? Some really juicy documents are marked with an asterix  (**)

Marketing and Consumer Research

Exhibit 175
1968 - Summary of Players No. 6

Exhibit 162
1970 - Project Brave ("research on effect of the whole smoking and health controversy on the consumer")

Exhibit 151
1971 Marketing Plans (Imperial Tobacco)

Exhibit 151A
1971 Players Filter Advertising Plan (Imperial Tobacco)

Exhibit 1972
1972 - Review of Gatwick (Strickman Filter) and marketing context

Exhibit 164
1976 - Matinee Special Filter - Usage and attitude survey

Exhibit 170
1979 - R2D2 - Players III (a 'lighter' version of Players light)

Exhibit 171
1979 - R2D2 - Project Pride - (a lighter version of Players light)

Smoking and Health

Exhibit 153
1975 - Minutes Smoking and Health Policy Meeting (Imperial Tobacco)

Exhibit 163
1975 - Anthony Kalhok's memorandum for Smoking and Health Conference

**Exhibit 177
1976 - Smoking and Health - Analysis and Recommendations (Imperial Tobacco)
Related correspondence at Exhibit 178 and 179

Exhibit 168
1978 - Imperial Tobacco market budget by category of cigarette

**Exhibit 187
1987 - Some thoughts on smoking and health, social acceptance, social costs and environmental tobacco smoke

Canadian Tobacco Manufacturers Council

Exhibit 155
1976 - Memo (Imperial Tobacco) on industry agreement on tar and nicotine

Exhibit 156A
1977 - Review of CTMC agreement on tar and nicotine
(covering memo at Exhibit 156)

Exhibit 181A
1977 - Agreement among CTMC regarding tar values
(covering memo at Exhibit 181)


Exhibit 176
1972 - Anthony Kalhok review of Project Gatwick

Exhibit 173
1975 - Imperial Tobacco research on carbon monoxide deliveries from Canadian brands

Exhibit 166
1977 - Imperial Tobacco research on biological activity of smoke from Canadian tobacco (nitromethane fraction index)

Exhibit 161
1978 - Imperial Tobacco research on nicotine enhanced cigarettes (addendum to Exhibit 160)

Exhibit 160
1978 - Imperial Tobacco research on nicotine enhanced cigarettes

To access trial documents linked to this site:
The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Thursday, 19 April 2012

Day 19: Jean-Louis Mercier remembers (sometimes)

See note on accessing documents at the end of this post.

The trial of the two Quebec class action suits takes place 4 days a week, and 3 weeks a month.  On paper it looks like an easy schedule - only 12 sitting days a month -- but in the courtroom it feels anything but. As the end of this three-week run of hearings came to a close, there were signs of fatigue all around the court - shoulders were slumped, tempers were short, hair less perfectly coiffed.

Even Suzanne Cote, who has energetically defended Imperial Tobacco against the introduction of virtually every exhibit began to flag as the week wound to a close.  More quietly now: "same objection, your honour."  "Noted."

Despite its low-energy, today's testimony had dramatic evidence, and produced documents that give an insight into how Canadian companies planned from 1987 to shift any blame to government.

Jean Louis Mercier's memories

Jean-Louis Mercier, who led Imperial Tobacco from 1979 till 1993, had his first full day of testimony today.  During the afternoon of the previous day, plaintiff lawyer Philip Trudel had asked the usual introductory questions, and had begun to question Mr. Mercier on the policies established at Imperial Tobacco during his time there with respect to document retention/destruction, communication with consumers and the public, product design and marketing, smokers' compensation and engagement with other companies. These were the same themes he returned to today.

For the most part, Mr. Mercier was a difficult witness to pin down. He had poor recall of the company's challenge to the 1988 federal advertising ban, (C-51, the Tobacco Products Control Act). He couldn't remember hearing that it his lawyers considered it a "major victory" that the judge in that case decided that scientific documents did not have to be shared with the government lawyers. (Exhibit 70) He couldn't remember why he had asked BAT's lawyers to review the minutes of a science meeting, or why the BAT's American affiliate, Brown & Williamson, was excluded from the distribution list of minutes for a meeting they had attended. (Exhibit 94). His memory of discussions among members of the Canadian Tobacco Manufacturers Council about the Smokers Freedom Society (Exhibit 190) were similarly vague.

Nor could he recall receiving documents in which BAT suggested a "change of stance" on the public position about the harms of smoking (Exhibit 186), or receiving a binder heavily marked SECRET of BAT Board strategies on health issues. (Exhibit 185).

He could remember clearly the differing effects between paper ventilation and filter ventilation on the different deliveries of tar and nicotine, and had a clear recall that there was a study in Ontario where 3 of 45 butts were shown to have been covered.  But he couldn't remember receiving BAT reports sent to him which reported on the development and reporting on research that showed compensation was much more frequent. (Exhibits 191, 192, 193, 194, 195)

One thing he recalled very clearly was that it was in response to the desires of the federal Department of Health and Welfare, and in particular because of the submissions of deputy minister Dr. Morrison, that Imperial Tobacco had altered its marketing and product development policies and had manufactured and advertised 'light' cigarettes.  He also recalled clearly the 1976 suggestion by Dr.  Gio Gori (of the U.S.National Cancer Institute) that it might be possible to smoke a moderate number of low tar cigarettes without any health risk.

Mr. Mercier clearly recalled that British American Tobacco NEVER gave orders to Imperial Tobacco and that Imperial Tobacco's head of research, Dr. Patrick Dunn, had complete authority over which documents he retained and for how long.

Jean-Louis Mercier's views on smoking

Mr. Mercier worked for a tobacco company for 30 years, and was president of Canada's largest tobacco company for over a decade. The plaintiffs introduced several documents showing that he had attended meetings where complex research was presented, and more documents showing he had received regular reports on all manner of product development. Yet the understanding he showed of some key issues could most charitably be described as naive.

Q. What are the effects of nicotine?
A. I don't know.

Q. What was the opinion of ITL on addiction?
A. I don't think there was a position.

Q. Do smokers have withdrawal symptoms?
A. 60% people in US are obese. Maybe this is the result of quitting smoking. Maybe it causes something, if they compensate with too much food.

Q. Were you concerned that there was a 'positive dose response relationship' between exposure to smoke from ventilated cigarettes and damage to cells?
A. Not necessarily. It showed a positive dose response relationship.

Q. What does positive dose relationship mean?
A. There was a response. Postive means it was a positive response. It depends on what sense you mean it.

Jean-Louis Mercier's recommendations:  
(shift the blame to government) 

Exhibit 187: secret analysis in 1987
Mid morning, Mr. Trudel introduced Exhibit 187, "Some thoughts on smoking and health, social acceptance, social cost, environmental tobacco smoke" and asked Mr. Mercier to confirm that this paper had been jointly prepared by him and Wilmot Tennyson in 1987.  At the time Wilmot Tennyson was ITL's president of marketing. (Mr. Mercier told the court that Mr. Tennyson was given the title of 'president' because it was expected that "the president" would attend events that were sponsored by Imperial Tobacco, but that he  hated doing that sort of thing).

This paper was marked "strictly personal and confidential" and was distributed to only four men in the company: the 2 authors (who headed Imperial Tobacco) and the two heads of the company that wholly owned Imperial at that time,  IMASCO (Paul Paré, who retired later that year and Mr. Purdy Crawford who had become CEO in 1985).

This paper provides an eloquent and disturbing analysis of how the industry has lost its way and what it must do to recover itself. The battle has been lost on four critical fronts, the authors say and review the set backs they have faced in the areas of "smoking and health, social acceptance, social cost, and environmental tobacco smoke."

In this confidential arena, the authors don't quibble about health effects:

"Smoking is a serious health hazard; it is an accepted fact and there is no longer any possibility of refutation. Governments are convinced, smokers concede, non-smokers are up in arms, shareholders and employees are bewildered."

They are equally blunt about the fact that smoking has lost any sense of prestige ("the educated, civilized smoker [is] now left with a deep-seated (albeit unconfessed) inferiority complex"), is understood to be an economic liability and angers non-smokers who are exposed to secondhand smoke.

Mr. Tennyson and Mr. Mercier  use this analysis to suggest that the tobacco industry must accept "that the burden of guilt must be shifted to government; which is not only the major financial beneficiary, but which also has power and means to act."

Jean-Louis Mercier's admissions:
(proof of disease would have justified banning cigarettes)

Mr. Trudel pushed Mr. Mercier to explain the thinking behind some of the stark statements in the paper. Most intriguing was his reply to the question "did ITL have any doubts that smoking was killing 32,000 Canadians a year?"  Mr. Mercier replied: "If the government could have proven scientifically that the product killed, it would have been a good reason to ban it."

Looking ahead

Mr. Mercier left the court at 4:15 and attention turned to procedural matters.

ITL lawyer Deborah Glendinning reported that documents that had been the subject of a clarification earlier in the week (see Day 17) would be available by the end of the first week of May.  (Her team was “working around the clock, as you can imagine. I cant push them any harder”).

Plaintiff lawyer André Lespérance signalled that the issue of parliamentary privilege would need to be addressed. [This is, by inference, with respect to Mr. Mercier's testimony before a legislative committee of the House of Commons during its review of bills C-204 and C-51 in 1987].  Mr. Potter's views of parliamentary privilege, and the extent to which one could lie to parliament with impunity, might not be exactly the same as Erskine May's, but they were energetically presented nonetheless.  

The schedule for the next week of hearings was reviewed.  On Monday, April 30, Michel Bédard of the Smokers' Freedom Society will appear, and a filmed testimony of U.K. lawyer John Meltzer will be shown. Mr. Mercier will return on May 1 and 2nd, and Mr. Kalhok will be invited to return on May 3rd.

Tomorrow, Friday April 20, the Quebec Court of Appeal will hear a request for an appeal of Justice Riordan's rejection of the federal government motion to be dismissed from the case.  

Stay tuned.
To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

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.

Wednesday, 18 April 2012

Day 18 : Anthony Kalhok not yet finished, but Jean-Louis Mercier begins

Former Imperial Tobacco vice president of marketing, Anthony Kalhok, was again on the stand when the Montreal tobacco trials resumed this Wednesday morning. Although the plaintiff's lawyers had finished their examination of Mr. Kalhok the afternoon before, there was still the matter of using his help to establish documents they wished to put into evidence.


The process of document introduction that consumed the first half of the morning was at the same time protracted and hurried -- a flurry of activity as those in front of the bar pulled up the records in question from their electronic databases, followed by irregular pauses as Mr. Kalhok looked at the papers, followed by another flurry as the documents were recorded and attention turned to a new set.

After Mr. Johnston put a few final questions about the relationship between BAT and Imperial Tobacco (to be told that the BAT family of companies was like the "old British commonwealth'), it was the turn of the defendants to ask questions.

This is the first witness for whom the Government of Canada lawyers had indicated that they might have questions. Deborah Glendinning raised concerns about the order of questioning between the defendants in the main action (the tobacco companies) and the defendants in the action in warranty (the federal government), and about the scope of questions given to the federal government.  Judge Riordan allowed that the issue was academic until the point at which the federal government had questions, and signalled that the Ms. Glendinning's colleague, Craig Lockwood, should begin his questions to Mr. Kalhok.

Imperial Tobacco questions its former vice president

In a steady rhythm, Mr. Lockwood asked Mr. Kalhok questions about Imperial Tobacco's advertising practices before turning to the relationship between Imperial Tobacco and the federal government.

Mr. Kalhok described the relationship between them as "cooperative", and then gave an example in a  communication between them regarding the use of the term 'light' on Player's light cigarettes even though the brand had tar levels higher than traditional light brands, like Matinée. "I invited Dr. Morrison to come down to Montreal, which he did," Mr. Kalhok said, and that the work of the company was explained to the Deputy Minister. "Once he heard all this, he said 'Go ahead - I have no problem.'"

At this point Maurice Regnier (who represents the Attorney General of Canada) rose to object to the question as being hearsay. The judge allowed the question. When Mr. Lockwood returned to the subject and asked how the relationship between Imperial Tobacco and the government of Canada compared with that between other companies, Mr. Regnier objected again.

Justice Riordan directly asked Mr. Kalhok whether he had been present in any direct meetings with other governments. Hearing that he had not, the judge ended that line of questions.

Mr. Lockwood turned to the question of Imperial's smoking and health policy and health claims that might have been implied (or inferred). "Did Imperial ever tell the public that light and mild was safer?" he asked.  "In those terms no," said Mr. Kalhok.

"Did the government?"

"Certainly in the brochure that came out from the health protection branch under Dr. Morrison's guidance – that pamphlet was very clear in terms of their objective – If you haven’t started, don’t. If you are a smoker, quit.  If you can't quit, smoke less. If you can't smoke fewer cigarettes, then smoke lighter cigarettes. There was a brochure.  I am absolutely certain of it."

Mr. Lockwood also asked about the numbers on the side of the pages.  They were put there, Mr. Kalhok said because "the government definitely wanted us to put them on the packages." He explained, as he had earlier in the trial, his view that smokers who wanted to reduce the amount of tar would not switch unless it was to a cigarette that was not too different than the one they were used to smoking.

Mr. Lockwood returned to some points that had been raised in earlier days.  He asked: - whether there was a difference between consumer awareness and consumer beliefs ("no");  -whether the Kwechansky study ever made its way to inform an advertising campaign ("no); -whether there was anything in Project 16 (Exhibit 142, 142a, 142b) that was contradictory to the voluntary code ("no"); - whether Imperial ever marketed to youth ("not at all"); - whether Imperial Tobacco did anything to counter the effect of package warnings ("no").

Rothmans, Benson and Hedges wades in.

Simon Potter, who once worked for Imperial Tobacco but now works for Rothmans, Benson and Hedges, began by establishing that neither questioner nor questionee could remember previously meeting.

Anthony Kalhok answered Mr. Potter's questions to say that the purpose of ITL's marketing was to steal market share, that they did not design ads for youth, and that they did not want to discourage smokers from quitting. He said he had never come to the opinion that their ads were turning non smokers into smokers. During the period he was at Imperial Tobacco, the total incidence of smoking was going "down, down, down." Market research, like Project 16, was the opposite of advertising, he contended. It is "gathering information from customers. Advertising is giving information to smokers." The vast majority of research projects - 80% to 90% never make it through to influence advertising, he testified.

On behalf of JTI-Macdonald, Mr. Pratte declined to ask any questions.

More documents on Imperial's relationship to government to come

Following the testimony about Dr. Morrison's communications with Imperial Tobacco, Maurice Regnier explained that the government of Canada would have some questions to ask, but that it would require some time to gather together the documents related to the events Mr. Kalhok had described only a few minutes before. After some discussion, Justice Riordan said the witness "had been more than cooperative" and that "he could call the shots" on which day he would return. It is not yet clear when that will be. 

Bienvenue, M. le Président.

When the session resumed after lunch, a new witness was sworn in: Mr. Jean-Louis Mercier, former president of Imperial Tobacco from 1979 to 1993.

Mr. Mercier is a tall man, verging on gaunt with a rich baritone voice and a slow manner of speech.

He is the first witness to speak in French. Although this is a suit filed on behalf of Quebec smokers against an industry predominantly based in Quebec, in a province where the official language of work is French, the proceedings have mostly taken place in English. Witnesses are allowed to testify in the language of their choice, but to date only Mr. Mercier has opted for French.

In response to the typical introductory questions, he gave a brief history of his career. He said he began by selling vegetables during World War II before, at the age of 14, showing films in parish halls. He came to Imperial Tobacco after brief stints in firms where he felt he had few prospects. He referred to chance opportunities when he was asked to trace his progress through ITLs ranks to the office of president -- a subisidary that closed, a boss who got sick, another who was promoted. His education did not include high school graduation (he "had his grade 9"), but did include receiving a certificate in industrial management at McGill after night studies in other areas as well..

There were a few smiles when he described his role at ITL as "president of managing profit planning" (président de gestion de planification des profits). He explained that when he arrived, Imperial Tobacco had not been profitable in comparison with the quantity of cigarettes they sold. He oversaw a plan to improve productivity at all levels.

Under this plan, the company improved its market share. "We had a 40% market share, then raised it to about 60%". His answers to how they did so were similar to Mr. Kalhok's. They made "high quality products that met consumers needs." They did not have influence on the decision to start smoking, but only on the brand smoked.

He allowed that the company had reservations, based on lawyers' views about being involved in certain health research or activity. (As soon as he mentioned the word 'lawyers', Suzanne Cote on behalf of Imperial Tobacco stood up to protest against moving into the area of privileged communication. Justice Riordan informed the witness that he was not obliged to reply to questions about advice from lawyers, although he could if he wanted to.)

Mr. Mercier expanded on his story about lawyers' advice.  He explained that the company had responded to the 1972 Surgeon General's identification of some harmful constituents in tobacco smoke by considering research into how to eliminate those products or to reduce them. "That was when the famous dictum from the lawyers came that if we tried to get rid of the toxic ingredients it would be considered an admission that our products were toxic, even if it wasn't us who called them toxic, but was the U.S.Surgeon General". [Beware - translation on the fly].

Although that project was dropped, he explained, research continued with the analysis of smoke with an eye to what could be done to reduce them. Mr. Trudel pushed for details, and Mr. Mercier drew a line between the research that Imperial had done on eliminating toxins and research on the toxic properties of the substances. "We tried to reduce them. We never tried to find out if they were toxic."

Mr. Trudel asked about the relationship between BAT and Imperial Tobacco. Mr. Mercier insisted at every occasion that Imperial Tobacco was not controlled by BAT. ITL was not a branch operation like other companies like others. "They saw us as an investment." There were no directives from BAT on how manage files, or how to answer criticisms on health issues. Nor, he said, were there any such directives within Imperial.

"Everyone decided for themselves.  My position was that for certain groups of people there was a form of risk to smoke tobacco. For other groups, there wasn't ... The issue is that you can't tell in advance who is at risk and who isn't.  That is the big dilemma."  He said that within ITL there were no talks about informing smokers of health effects because there were warnings on the packages, and even warnings on advertisements.

Before long, Mr. Trudel moved to the issues of document destruction, referred the witness to previous exhibits that had been presented to Mr. Ackman, and introduced new exhibits on the same theme.  Mr. Mercier was not certain that it was his decision to change the document retention policy that was referred to in a letter from Mr. Ackman to Mr. Canner (Exhibit 91). He suggested it might have been a favour done for BAT, ("if you are nice to them, sometimes they are nice back").

He was asked about the genesis of the document retenton policy change -- and whether it had anything to do with litigation risks that might have became apparent as a result of the production of documents during the trial of the Tobacco Products Control Act. He thought not, but was given a copy of Exhibit 70 and asked to review it for further questions on document destruction tomorrow.

While Mr. Mercier was asked to leave the court room, the Judge considered the request of Mr. Trudel that this witness, like Mr. Descoteaux and Mr. Ackman, should be considered to be favourable to the industry's position. He ruled that the witness was skating around key questions, and that he would permit the plaintiffs to ask suggestive questions.

Mr. Trudel then turned to Mr. Mercier's role in the Canadian Tobacco Manufacturers Council, and the role of the CTMC in determining policies on smoking and health. Mr. Mercier was chair of the CTMC, a task he described as thankless.  "No one wanted the job."  It was difficult to manage the relationships between the four company heads (this was before the merger of Rothmans with Benson and Hedges), he explained.  He said they hired a staff president because doing so made negotiations between the companies easier, and he spoke glowingly of Jacques Lariviere who held the post of spokesperson during some of that time).

It wasn't the CTMC that decided to challenge C-51, Mr. Mercier explained, but the decisions of indivdiual companies, especially ITL.  They were concerned about the way the advertising ban affected their ability to market trademarks.  "No one goes to a corner store and says 'give me a package of cigarettes,'" he said. "They all say 'give me a package of Peter Jackson,'" or another brand.

Mr. Trudel referred the witness to communications guidance that the CTMC had prepared regarding health effects (Exhibit not yet available), but Mr. Mercier doubted that he had read it. The discussion returned to Imperial's views of health effects and whether the company or the witness had agreed with the health warnings proposed by the new legislation. "Smoking reduces life expectancy,” “Smoking is the major cause of lung disease,” "Smoking is a major cause of heart disease," "Smoking during pregnancy can harm the baby.”

Mr. Mercier returns to testify tomorrow, Thursday, April 19.  Although the trial will not sit on Friday, a related proceeding will take place in the Quebec Court of Appeal, as the federal government seeks leave to appeal Justice Riordan's February ruling to reject their motion to be dismissed from the case.

Stay tuned for a review in the coming days of the document hits of this week.  

Tuesday, 17 April 2012

Day 17 - Questions, Answers, Pleadings, Decisions

The one-time vice president of marketing for Imperial Tobacco, Anthony Kalhok, was again on the stand when the trial of the Montreal tobacco class actions resumed this Tuesday morning.

In answer to Justice Riordan's jovial "how are you, sir?" as the session began, Mr. Kalhok allowed that he felt "perked up" by a weekend of physical exercise.

It would have taken a stalwart temperament to maintain any feeling of perkiness over the next few hours, as plaintiff lawyer Bruce Johnston took the witness through a series of focused and relentless questions about the marketing strategies of Imperial Tobacco during his tenure there.

Young smokers - a major opportunity group

Of the day's rich testimony, some of the most memorable sections involved the company's approach to young smokers. 

Mr. Johnston pushed Mr. Kalhok to explain the constraints under which his department operated with respect to advertising that reached young people. As happened last week, responses were usually framed around a business analysis.

"You set up a context that is the opposite to the context we worked," Mr. Kalhok explained when asked why they did not market to youth. "We did not consciously not target to people under 18, we consciously targeted at people over 18." Why not target smokers?  Well, "there is only so much you can do in an ad."

Mr. Kalhok passed over several opportunities to reveal any qualms Imperial Tobacco might have had about youth smoking.

Mr. Johnston: Aside from the voluntary code was there anything else that determined the decision or policy of imperial tobacco not to market to starters who were of legal age?

Mr. Kalhok:  No.

Mr. Johnston:  The risks or possible addiction, that was not a factor?

Mr. Kalhok:  No.

The second theme to which Mr. Johnston returned was the role of the marketing department in addressing smokers' concerns about their health and the marketing of some cigarettes are safer.

The witness began to look a little less 'perked up' when Mr. Johnston introduced a 1971 marketing plan that had been authored by Mr. Kalhok (Exhibit 151, not yet available).  Mr. Kalhok was given a moment to read over the anlaysis he had provided some 40 years ago

Young smokers represent the major opportunity group for the cigarette industry, we should therefore determine their attitude to smoking and health and how this might change over time.

Mr. Kalhok looked up from the page to his questioner and ruefully admitted that if the document had been brought out earlier, "you wouldn’t have had to ask me about my personal views."

At this point, discussion returned to the first marketing studies conducted by Imperial Tobacco on teenagers. The Kwechansky "Project 16" was cited in other tobacco trials (including the trial of the federal Tobacco Products Control Act and the U.S. federal RICO suit), but this is the first time that the man who had responsibility for the study had been asked to testify on it.

Mr. Johnston read out extracts from the study, repeatedly asking if these had caused concern for the company. Not once did Mr. Kalhok acknowledge any disquiet.

Mr. Johnston:  "Serious efforts to learn to smoke occur between ages 12 and 13 in most cases.”  Was that new information for ITL at that time?

Mr. Kalhok:  Yes

Mr. Johnson:  Did it cause concern?

Mr. Kalhok:  You have to remember these are the claimed behaviours of the 16 and 17 year olds.  It would not have statistical validity.  We were, um, surprised.

Mr. Johnston:  "Like adult smokers, teenage smokers find it very hard to quit, even if they want to do so of their own accord.”  Did that cause concern?

Mr. Kalhok:  No more than coffee, coke, or whatever else. We admit that once you enjoy smoking you like to continue smoking.

Mr. Johnston:  Was it considered at imperial tobacco at that time, that smokers were able to give imperial tobacco or any manufacture an informed adult consent?

Mr. Kalhok:  I don’t understand the question.

Mr. Johnston: Do you understand the concept of informed consent?

Mr. Kalhok:  Probably not.

Mr. Johnston:  Did that information have an influence in a marketing strategy in the direction of exercising extra caution?

Mr. Kalhok. Not really.  As I said, it was not new information.

Mr. Johnson.  "The young do not temper their actions with worries about future consequences. This is partly because they don't really understand them yet, and because to them the future means next week, next month or at most next year. It does not mean in fifty years, or even in five."  Did this information prompt anyone to prompt how this misapprehension could be corrected?

Mr. Kalhok: If I understood your question correctly, we wouldn't tread into that territory to correct that misapprehension between the timing of the pleasure and the timing of a potential risk. The facts were they were far apart. And they perceived them as far apart. There was nothing to correct.

Maintaining the social acceptability of smoking
Mr. Johnston also revisited the issue of  Imperial Tobacco's marketing strategies to respond to health concerns of smoking.  He again questioned Mr. Kalhok on (Exhibit 116) which minuted an observation in 1976 of the marketing, research and public relations staff of the company:

In our normal marketing activities, we are constantly aware of the smoking and health issue. Some of our campaigns are very effective in reinforcing the smoker's choice. The image campaigns being currently run for duMaurier, Peter Jackson and Player's Filter, help to convey three of the basic reasons for smoking. Those reasons are, respectively, social acceptance, personal independence, and the pleasure of smoking.

He introduced minutes of a similar meeting the year before (Exhibit 153), a policy statement by Canadian tobacco companies on the question of tar and other smoke constituents (Exhibit 154- under reserve, but also available on the Legacy site), a memo noting changes to that agreement (Exhibit 155), and a proposed new agreement (Exhibit 156, 156a) where the Canadian companies agree to not "expand on or exploit" health concerns, to permit each other to use the words tar and nicotine, but not to use any  'scary' words like carbon monoxide or gaseous phase.

Other documents introduced but not  yet available were a marketing plan for a new Player's cigarette (Project Pel, Exhibit 157R), a review of the tobacco industry (Exhibit 159).

By mid afternoon, the plaintiff's wound up their examination of Mr. Kalhok.  They took him to a document on which Mr. Descoteaux had been questioned in the opening days of the trial (Exhibit 11), and asked him to identify his handwritten note to his colleague.  "Much of the satisfaction (of smoking) is the effects of nicotine," he had scrawled across Mr. Descoteaux's suggestion that the company should develop cigarettes that would provide the same satisfaction without "enslaving" consumers.  "Would you pay $12 for a 40 oz  of gin if it didn't contain alcohol?"

Judge Riordan's calls. 

1. Smokers are not also passive smokers

Justice Brian Riordan was called on to make two decisions about evidence.

The first was in reply to an objection by the tobacco companies to a question about the company's views on second hand smoke. "Bringing second hand smoke into the picture would be a fundamental change to the nature of the case" said Imperial's lawyer, Craig Lockwood. Despite Bruce Johnston's protest that smokers are also affected by second hand smoke, and that the industry's approach to the science on second hand smoke was relevant to their denial of other science, Justice Riordan shut down the line of questions. "The issue is not relevant to the  (class action) groups."

2. Non-appearing documents about document destruction.

Earlier in the month a press release regarding document destruction (Exhibit 57) had not been provided to the plaintiffs as part of the established exchange of documents. This had raised questions about the consistency of the defendant's document production with an earlier ruling of Justice Riordan.

After establishing that there were other documents in the same category (related to implementation of the document retention policy), Justice Riordan clarified "if there is ambivalence in my previous judgement that is my fault, but that doesn't change the fact that the information is relevant, and it has to be provided.  And it has to be provided in a timely way with witnesses." He called for documents related to "document destruction between 1985 and 1995 and referred to subsequently."

Ms. Glendinning questioned the time-frame of the document net ("AFTER the lawsuit has commenced!?"), but promised to provide details in the coming days about the number of new documents to be produced.

Justice Riordan also clarified that Imperial Tobacco was to give priority in its internal review of documents to those that are intended to be provided to the plaintiffs in the main action, and that delays in providing documents to the plaintiffs that resulted from assigning personnel to documents in the action-in-warranty (the federal government involvement) were not acceptable.

Back to the croquet court

At the end of the day, discussion was resumed on the industry's request to disqualify three of the federal government's four proposed expert witnesses.  Mr. Regnier, speaking on behalf of the federal government, resumed his submission from the previous day and provided a detailed account of where Dr. Farone's testimony was linked to the action in warranty.

Andre Lespérance presented the views of the plaintiffs, and their agreement with the position of the federal government's counsel that the court was operating with common evidence.  The main action and the action in warranty were woven together, he explained, and the division of the cases in examining or cross examining witnesses would be unworkable.  The expert witnesses were pertinent to both cases, he said, because the cases were "mirrors of one another."

In her reply to the opposition to their motion to dismiss the witnesses, Suzanne Coté replied that she disagreed with the view that the two actions were being tried with common evidence. The fact that the cases were being heard and judged concurrently did not mean that they were working on the basis of a signle proof.

She went further to question the relationship of the federal government to the plaintiff's case. "The federal government could contest the principal demand," she pointed out.  (Was she remembering with nostalgia when the federal government had sided with the tobacco companies in opposing certification of class actions on tobacco in British Columbia and Newfoundland after they had been sersved with third party notices?).

Simon Potter apologized for not having provided the whole story to the court about the eventual agreement reached by the tobacco companies and the federal government to allow Dr. Burns to testify in the Tobacco Products Control Act case, even after Justice Chabot had disqualified him.  He did not back down from other positions taken the day before, and repeated his concerns that the expert witnesses were provided too late in the day to be fair to the defendants.

The last word went to Mr. Jean Leclerc (on behalf of the federal government), who urged the judge to read again the Burns report, and to consider that it could not be severed but should be read as a whole.

Tomorrow morning, Mr. Kalhok returns to face cross examination by his former employer's attorneys, and possibly by lawyers representing the federal government.  In the afternoon, the former president and chairman of Imperial Tobacco, Mr. Jean Louis Mercier, will be called to testify.

Monday, 16 April 2012

Day 16 - Expertise not wanted

See note on accessing documents at the end of this post.

As spectator sports go, trial watching does not have the adrenalin rush of the Stanley Cup playoffs (Go! Senators! Go!), although it often calls to mind other sporting matches.

Today's proceedings seemed to have much in common with that sedate summer sport, croquet.  In croquet the object is to be the first to get your ball through the hoops, but the real fun of the sport is in viciously knocking your opponents' balls out of the croquet court, all the while maintaining the appearance of polite gentility.

The first sitting this week was spent discussing the tobacco companies' request to knock three of the federal  government's balls out of the trial court. The industry wants to throw out the expert testimony offered by epidemiologist David Burns, toxicologist Len Ritter and chemist William Farone.

[Unlike fact witnesses who testify on events to which they have a personal connection, expert witnesses provide opinion evidence on matters which go beyond the expected knowledge of ordinary people (even judges). Their credentials are open to challenge.]

Whack!  Dr. Len Ritter

First to take a swing was Suzanne Coté, who works for Osler, Hoskin Harcourt on behalf of Imperial Tobacco. She took aim at the testimony of  Dr. Len Ritter, a Professor Emeritus at the School of Environmental Sciences at the University of Guelph.

In her usual fast pace, she rattled off the criteria that should be required of expert witnesses to the case: pertinence, usefulness for the judge, qualification of the witness and impartiality. She then took successive knocks at Dr. Ritter's work for meeting none of those criteria.

Dr. Ritter's report on industry's knowledge of and research into the harmful properties of smoke did not reflect expert knowledge, she said, and suggested that these were tasks that the judge could perform himself. Justice Riordan laughed when she asked dramatically "where it would take us" if the role of the judge were  usurped in this way.

She also challenged the impartiality of Dr. Ritter's opinion, saying that the documents he selected reflected only one side of the "controversy" about smoking and did not include science that supported the industry's actions.

Whack!  Dr. David Burns

After the morning break, RBH's lawyer Simon Potter picked up the verbal mallet to hit at the expert wtiness testimony of prominent U.S. epidemiologist, Dr. David Burns. In his flamboyant way (did Simon Potter and Rex Murphy attend the same elocution class?) he decried the presentation of this witness as "burdensome, prejudicial, unfair and late".

Mr. Potter claimed that the expert opinion was not pertinent to the government's defence, but was designed to assist the plaintiff's main case. "The action in warranty says that if there were low tar cigarettes on the market it is because the government wanted them there and pushed to have them there," explained Mr. Potter.

"Dr. Burns wants to argue that the  tobacco companies were aware of smokers' compensation and that they designed their cigarettes to facilitate compensation....This is Dr. Burns not defending the action in warranty, it is piling on to the plaintiffs' case."

Mr. Potter claimed that Dr. Burn's recounting of events in the United States were not relevant to the Canadian experience. He pointed to references in the opinion to the U.S. Master Settlement Agreement. "This is Dr. Burns seeking to bring in an enormous piece of American fact," he said. "It is foreign to the true interests of the Attorney General of Canada.”

Mr. Potter referred to the decision of Quebec Justice Chabot to dismiss Dr. Burns in the trial of the 1988 Tobacco Products Control Act, because "Dr. Burns (was) brought forward not to bring his professional opinion, but .. rather to state the professional opinion arrived at by others and to confirm that they are reliable and credible.” He repeated the view earlier offered by Mme. Coté that this was the job of the judge, not an expert witness.

In short, he said "“this report does precious little good."

Whack!  Dr. William Farone

Simon Potter turned his attention to the testimony of the third government witness, the former Philip Morris International chemist, Dr. William Farone. This time the attack was more personal. 

He denounced Dr. Farone as being a man "on a mission” who claims expertise in areas where he does not have it. He presented Dr. Farone as exaggerating his knowledge and contribution.  "He is only a chemist," he said disparagingly, then backtracking slightly "I don’t mean chemist disparagingly. We need chemists in the world.”

Mr. Potter claimed that Dr. Farone had a desire to 'inflame' tobacco issues, and drew attention to uncomplimentary things that had been said about him in other trials. He suggested he had an axe to grind by telling the court that Dr. Farone was not so much a former employee of Philip Morris, but was someone who had been fired by Philip Morris for insubordination.

This is an expert witness who "wants to lard the file." Mr. Potter concluded that Dr. Farone is someone who offers nothing that had not already been provided to the court by the plaintiff's expert witness, Dr. André Castonguay.

A textbook defence

After lunch the government opened its response to the industry's attacks on their witness by presenting a special counsel to the case, Mr. Donald Béchard, the author of a textbook on the admissibility of evidence, Manuel de l'objection.

Mr. Béchard challenged the suggestion by the companies that no special knowledge was necessary to assess scientific reports by reading one sentence from Mr. Ritter's expert report. He pointed out that an ordinary reader might not be able to come to the same conclusion as an expert with subjects of this nature.
“The PAHs found in cigarette smoke are broken down (metabolized) into a variety of compounds by the action of the enzyme aryl hydrocarbon hydroxylase (AHH).”
He questioned the role of the tobacco companies in challenging how the federal government should conduct the case.  "The tobacco companies are trying to say that now that we have trapped you in this case, we are going to tell you how you must defend yourself."  Besides, he pointed out, the use of common evidence as in this case allows for parties to contribute to a common proof.

Mr. Béchard disagreed with the companies that the American orientation of the testimony was a drawback. "The U.S.  experience IS relevant to Canada," he argued. "The government will demonstrate that what happened in the U.S. also happened in Canada."

Cherry Picking

Mr. Jean Leclerc (Gilbert Simard Tremblay) provided a detailed reply on behalf of the federal government to the arguments against Drs. Ritter and Burns. He suggested that the tobacco companies had cherry picked from the expert reports and that doing so had provided a distorted view of the value of those reports to the court. 

He defended the credibility of Drs. Ritter and Burns, reminding the court that Dr. Ritter had testified in the trial of the 1997 Tobacco Act, and that Justice André Denis had found his testimony useful. He pointed out that the science of toxicology does not rest on what produces the toxins  - cigarettes or pesticides - but on the harms these materials cause.

He countered the suggestion that Mr. Potter had left that Burns had been dismissed from the Tobacco Products Control Act Trial by pointing out that eventually Dr. Burns had testified, and that the assessment of Justice Chabot needed to be situated in its historic context, 23 years ago.

On hearing this factual contradiction to the suggestion that Dr. Burns' had not been allowed to testify in a previous Quebec trial, Justice Riordan looked and sounded displeased.  

If it's good enough for Judge Kessler ...

Maurice Regnier was the last to respond to the objections, and he defended the qualifications of Dr. William Farone. He outlined how Dr. Farone's testimony was directly related to the federal government's defence in the action in warranty, as it provided detail on how companies could control the nicotine levels in cigarettes.

"The industry says it is the government's fault to have worked on a tobacco variety that had higher nicotine." Mr. Regnier explained,  "Our case will be to demonstrate that the tobacco plant that grows has very little to do with the nicotine that is produced by a cigarette later."

"The manipulation is not on the part of government, but on the part of the industry."

Mr. Regnier drew attention to the acceptance by U.S. federal judge, Gladys Kessler, of the testimony of Drs. Burn and Farone.  In her 1700 page ruling in 2006, she said had praised the credentials of Dr. Burns:
Based on his superb academic credentials, his extensive experience working on Surgeon General Reports and NCI monographs, his ongoing clinical research, as well as his demeanor and responsiveness to cross-examination, the Court fully credits his testimony.
Likewise, Judge Kessler had accepted the testimony of Dr. Farone:
Dr. William Farone, who worked at Philip Morris for 18 years and was impressive and credible as both a fact and expert witness.
By the end of the sitting, the arguments for and against these there witnesses had not finished. When tomorrow's session opens tomorrow morning, this issue and the testimony of Mr. Anthony Kalhok, former vice president of marketing for Imperial Tobacco will be resumed.

Like a croquet game, the pace is slow and the social niceties are observed. Unlike a croquet game, it will be some time before we will learn whether the industry was successful in knocking these federal balls off the court.

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