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.

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.