Friday, 31 August 2012

Day 51: The chemical engineer

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

Pierre Leblond, who testified yesterday at the Montreal tobacco trials,  is one of the last of Imperial Tobacco Canada retirees to appear at this trial. Over the next two months, the focus will shift to fact witnesses from the other two large tobacco companies operating in Canada, Rothmans, Benson and Hedges (owned by Philip Morris International), and JTI-Macdonald (owned by Japan Tobacco).

Mr. Leblond's career record might suggest that he was quite knowledgeable about how cigarettes were made. Five years after graduating from McGill in chemical engineering, he joined the company in 1973. His first job was to reformulate casing and flavourings in pipe tobacco and fine cut tobacco, and his responsibilities over the next thirty years branched out into process management, product development, quality control and training. For a time, he was responsible for keeping the "K-List" of additives used by BAT and Imperial Tobacco under "lock and key" and for adding and deleting items from this list.

Philippe Trudel, the plaintiff lawyer who prepared questions for this witness, might have held expectations that this witness would be able to provide some of the basic information that has not yet been put on the record -- what the difference was between the tobacco used in U.S.-style cigarettes and those sold in Canada, how blends of tobacco were developed, etc.  

If so, they would  have been dashed within the first hour of Mr. Leblond's testimony. It seemed after the first series of general questions about cigarette manufacturing put to the witness that he had less knowledge about tobacco than many in the room. He said he didn't know the difference between Burley and Virginia tobacco, nor how they were cured. He could not explain what Ph was. He did not know how tobacco blends for cigarettes were developed.

For a while, it looked as though the day was heading nowhere, and Justice Riordan looked over at Philippe Trudel and chuckled "This may be a little shorter than you thought."

Witnesses are also a mechanism for documents to be entered into evidence, so Mr. Trudel began the task of showing Mr. Leblond documents related to Imperial Tobacco's cigarette designs and recipes that would soon become (in heavily redacted form) part of the court record.

Increasing nicotine levels in
tobacco in Canada's major brands
The first of these (Exhibit 528) is a fresh contribution to the old question of how and whether tobacco companies manipulate nicotine levels. It is an historic review by Mr. Leblond's former boss of the smoking profile of major Canadian brands, including the "nicotine transfer" available to smokers.

Soon Mr. Trudel turned to documents on additives. Although repeating the commonly-held view that Canadian cigarettes contain no additives, Mr. Leblond nonetheless testified that additives were used in manufacturing the reconstituted tobacco and filters which are part of the cigarette. 

If there are additives in reconstituted leaf, how can you claim there are no additives, Mr. Trudel wanted to know. "My understanding is that Health Canada accepted the claim that cigarettes were additive free despite the addition of processed leaf tobacco,> said Mr. Leblond. 

Justice Riordan today
excluded these products
from the trial
The document suggest that additives are frequently used in roll-your-own tobacco (which once accounted for a large portion of the tobacco smoked by members of the class action). But when Mr. Trudel tried to ask the witness about the use of additives in these products, lawyers from all three companies objected to any reference to fine-cut/roll-your-own cigarettes original claims referenced "manufactured" cigarettes. 

Justice Riordan's decision, given later in the day, agreed with the companies. He stressed the word impossible when ruling "it would be impossible to connect the roll your own issue with one single manufacturer and one single defendant" and "impossible to connect liability." Another limitation was put on the case. 

Mr. Trudel traced events at Imperial Tobacco related to tobacco additives through exhibits 530 A, 530 B, 530 C, 530 D, 530 E, 530 F, 530 G, 530 H, 358 N, 531. These included the decision in 1981 to de-list Coumarin, Deer Tongue and Tonka Bean at exactly the same time as Health Canada was pressing the company for disclosure of the additives used (Exhibit 531). Coincidence?  Hmmmm.

Mr. Trudel also asked Mr. Leblond to explain why the denatured alcohol that was used in cigarettes was rendered undrinkably industrial by the use of nicotine salts, and whether there were not other ways of denaturing alcohol. Again, responsibility was deflected to the government. Mr. Leblond said the use of nicotine was "mandated by government." (I am not aware of any such requirement. Alcohol denatured with other substances is available in Canada, and the chemical sheet on alcohol denatured with nicotine suggests the only use is for tobacco products.) 

Mr. Leblond blew off concerns about denatured alcohol as an additive: "We know that the substance completely evaporates," he explained. "Does the nicotine sulphate evaporate too?" Mr. Trudel asked. "Probably not," replied Mr. Leblond.  Another way of adding nicotine to cigarettes? 

It was during Mr. Trudel's questions about nicotine late in the day that one of the most interesting exchanges took place.

In response to a question about nicotine and addiction, Mr. Leblond began to provide a personal view. He was quickly cut off by an objection from Deborah Glendinning, Imperial Tobacco's lawyer. Justice Riordan agreed that the personal views of those who were not senior management should not be on record, so the witness limited his response to "the official comments that were publicly announced by Imperial Tobacco."

Justice Riordan, unusually, pursued his own line of questions. How did management communicate that view? Was it a new  message, or was it the position of the company before? Without Ms. Glendenning being able to interrupt with objections, Mr. Leblond told the court that during a meeting with employees at the Sheraton Hotel, then-president Don Brown had communicated the company's position on addiction.

"For many years we heard nothing at all and this type of comment probably started coming out in the 1990s when addiction became an issue and was in the news," explained Mr. Leblond. "And the response to addiction was that there are thousands - tens of thousands - of people who manage to stop smoking cigarettes."

"I think we will stop there for today," said Justice Riordan and papers were packed up for the long weekend.

More appeals

The court has been a little less crowded with lawyers this week, presumably because they have been busy preparing for Friday's hearing by the Court of Appeal regarding two more decisions by Justice Riordan. Imperial Tobacco and Rothmans Benson and Hedges are seeking a review of his June 28 decision that they must provide the plaintiffs with their financial records. (JTI-Macdonald has apparently decided to negotiate a transfer of information to the plaintiffs).  The federal government wants a review of the May 1 ruling which struck down much of the work of its star expert witness, David Burns.

Switching it up next week 

The trial next week will take on a different form.  The four-day week will run from Tuesday to Friday to allow for the Labour Day holiday on Monday.  

On Tuesday, the industry will try to prevent a subpoena being served on the archives of the CTMC, which are currently under the care of Mme Takacs, the former CTMC librarian. She will be on hand to testify during this hearing.

On Wednesday through Friday, the morning will be spent introducing some remaining documents from Imperial Tobacco. In the afternoon, the testimony of Mr. Peter Gage, a former leaf buyer and a nonagenarian will be heard by tele-conference from Victoria, B.C.

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, 30 August 2012

Day 50: Adieu, Monsieur Ricard

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

Wednesday was the seventh and last day that Mr. Ed Ricard testified at the class action trial where $27 billion is being demanded from tobacco companies in compensation for the addiction and lung disease experienced by  Quebec smokers.

Ed Ricard has been a major witness for Imperial Tobacco, both in this trial and in other litigation that his former employer has been involved with. It is not surprising that the plaintiffs chose to schedule him as they wind up this stage of their case against Canada's largest tobacco company - attacks on his credibility flow automatically to the credibility of the company who chose him as their spokesperson. Yet the day was full of surprises ...

Selling cigarettes to underachieving, live-for-the-moment, self-indulgent youth. 

Yesterday afternoon, Mr. Johnston had introduced documents that traced a partnership with Imperial Tobacco, Labbatt's Brewery and the marketing firm, the Creative Research Group, to study the lifestyle attitudes of young Canadians and to figure out what "turns them on" (exhibit 292-87).

In the first wave of this research in 1987 the analysts divided Canadian young people into psycho-graphic groups. The group of great interest to the company, representing about one-fourth of this population was named after weekend-lovers - TGIF (Thank God It's Friday).

"The largest single group is the Underachievers or, as we prefer to call then, The T.G.I.F. group. This segment is rooted in the present. They live for the moment and tend to be self-indulgent." ... "They are the most prominent supporters of smoking." (Exhibit 520-cry27).

A few weeks later, the market researchers suggested how this information could be used to design brands that would appeal to those young people most likely to smoke. (A Review of ITL Brand Strategies - Exhibit 520-cry32520-cry32A).

Player's, too, provides highly relevant options to its intended audience. The recommendation is that perhaps an even stronger association with outdoors, social joie de vivre would be beneficial. The T.G.I.F. group is singled out as having most potential in characterizing the trademark .

Mr. Ricard has repeatedly testified that only adult smokers were targetted by the company's market research. This is consistent with the distinction in the survey report (Exhibit 520-cry30) between the general questions that were asked of respondents as young as 13 and the "custom" section on smoking which  "focusses exclusively on smokers aged 18 years or older." The Review on Brand Strategies similarly  claimed to only use data from those over 18.

Fake ID: for under-age smokers AND the companies that sell to them

Bruce Johnson set out to show that the recommendations on tweaking marketing to better reach the TGIF group were in fact based on an analysis of those as young as 13 years of age.

Through his questions to Mr. Ricard, he methodically took the court through the many ways in which the findings on 13-24 year old smokers and non-smokers were identical to those presented in the report that was said to be exclusively on 18-24 year smokers. 

By the end of these questions, he left a solid impression that Imperial Tobacco's research looked like it was excluding results from underage participants, while it was actually including them in the analysis.

Research reports on 13-24 year olds (left) and
18-24 year olds (right) with suspiciously identical values. 

Mr. Johnston offered a new theory to the witness: "Isn’t the language used meant to give the impression that you are looking at 18 year olds, when you are really looking at 13 year olds?"  

Absolutely not! replied Mr. Ricard. But the pounding his credibility had taken during the week made his answer sound as feeble as the documents made it look.  It was a Perry Mason moment.

More research on children, but no documents on lowering price

After this moment of drama, more mundane issues were brought forward. The first was the introduction of several marketing documents, including some on young Canadians that were not mentioned in either of the constitutional challenges to advertising bans. (In a few weeks, after some formalities have been observed, these will be made public and discussed further on this blog.)

One area where the plaintiffs have been unable to make ground is the role of Imperial Tobacco in increasing smoking by reducing the price of cigarettes (such as by feeding the illicit market of untaxed cigarettes). As he had earlier, Judge Riordan refused to permit evidence of Imperial Tobacco's acknowledgement of the power of pricing to influence youth smoking. Like the now-forbidden topic of second-hand smoke, this is a big part of the story of tobacco industry contribution to disease that may never be included in this trial.

The cross examination

As lunch-time approached, Deborah Glendinning stepped forward to give Mr. Ricard the opportunity to put a different light on some of the issues covered during his direct examination. She encouraged him to remember that Imperial Tobacco had decided against taking up some ideas from the Viking research that they could actively resist anti-tobacco attitudes. She asked whether he had ever met Mme Polet (the current president of Imperial Tobacco), whose testimony about the shutting down of the research branch had been in sharp contrast to his own and she tried (unsuccessfully) to offer him the opportunity to explain how Mme Polet had been mistaken.

She scored an "own goal" however when she tried to do damage control on Bruce Johnston's suggestion that research on youth was mislabelled a research on smokers of 'legal age'.  By opening the topic she allowed Mr. Johnston to repeat his points, and in the squabble over objections between the two lawyers, she snapped "The documents speak for themselves." The courtroom went silent -- ITL's lawyer had confirmed the very point the plaintiff was trying to make.

As if that was not enough ....

Justice Riordan had clearly expected that this witness would leave by lunch, and looked surprised (and not pleased) when Maurice Regnier informed the court that his questions for the witness would go into the afternoon.

The federal government has kept a low profile in this case, presumably because to do otherwise would threaten their real objective, which is to be dismissed from the case altogether (a Court of Appeal ruling on their release is pending). 

But Mr. Ricard, unlike other Imperial Tobacco witnesses, has refused to concede that the federal government had no part in the actions of the company with respect to warning their clients. His testimony has been firmly aligned with the 'action in warranty' claim made by Imperial Tobacco against the federal government. This was material that Mr. Regnier may have felt he could not leave unchallenged.


Mr. Regnier started by referring to Mr. Ricard's statement last May that the reason his company could not restrict its research to 'legal' smokers and was required to lower the age of its surveys to 15 was because of the need to align their findings with census data. ("We needed a basis on which to establish a representative sample, and that basis is the Canadian census information.  It tells us how many people live in different areas of the country and how many people are in different age and gender groups.  And so we used that information as the basis to establish our representative sample of the Canadian population." - May 9, 2012)

Mr. Regnier displayed library copies of Statistics Canada census information which were broken not into age groups like 15-19 but were by single years of birth. This apparently was new information to Mr. Ricard, who explained that it his information had been provided by their research supplier. "I did not have personal knowledge of how the stats can information was structured." 

"It was hearsay?" Mr. Regnier asked. Hearsay was a new issue in this trial, and Justice Riordan directly asked the witness whether the reason came from personal knowledge or from the supplier. "It came from our supplier."

Requests from government

Mr. Regnier then drew attention to several documents that had been cited by the witness as support for his view that the government was opposed to the companies informing consumers of the harms of smoking. 

Mr. Ricard conceded that there was nothing in Judy Lamarsh's 1963 speech to the House of Commons that referred to an agreement with the industry, nor was there anything in the correspondence from senior health ministry officials. And as for the CTMC manual that he had cited (exhibit 20003), it turns out that Mr. Ricard had no personal knowledge of any government involvement in its development. 

To the contrary, exhibits filed by Mr. Regnier today showed the federal government expressing regret at not being involved in the development of the CTMC voluntary code, and asking the companies to develop means of informing smokers of "least harmful" ways of smoking. (Exhibit 500013 is not yet available).

Repeated objections by industry lawyers over these new documents blocked Mr. Regnier's ability to push Mr. Ricard to agree that the government had asked the companies to do more.  "You've got your proof," said Justice Riordan, "but I maintain the objection" to the question.

“Smoking reduces life expectancy”

Mr. Regnier's last point came in the form of a twenty-year old sleeve to a package of du Maurier cigarettes, taken he said from his 'professional collection.'  

This package, made for export to the United States during the period of contraband 'round-tripping,' was passed around the room (but not too observers at the back of the room!). The warning in English and French seemed to be different than any required in Canada or the US at any time. The bilingual warning warning, "smoking reduces life expectancy" was on the side of the package, but not the front and not in contrasting colours as required after 1989 when this warning formulation was regulated. 

This package took everyone by surprise. "He's pulling that out of his hat" complained RBH lawyer Jean Francois Lehoux. After the dust died down, Mr. Regnier's questions made it clear that Mr. Ricard had no explanation as to why the companies had been able to print this novel warning if they were constrained by an agreement with government, as he had previously testified.

Damage control - round 2

Again, Deborah Glendinning struggled to put her clients' witness under a better light. The session suspended for more than half an hour while her team went to recover a document. With such an unusual and prolonged delay, expectations might have been high. But the companies had no rabbits in their hat -- just a copy of a government report on smoking which used the 15-19 year age category. (This report had nothing to do with the census that Mr. Ricard had referred to, but was based on a Labour Force Survey analagous to Imperial Tobacco's own in-home Monothly Monitor).

"Would this be the kind of survey information that Imperial Tobacco would be basing its age breakdown on?" "Would you agree that the suggestion by Maintre Regnier that we could have done something different is incorrect?"  Mr. Ricard agreed with everything she said.

Before he left, Mr. Ricard was thanked effusively by Judge Riordan for his diligence and patience. Go figure. 

Tomorrow, a new witness will appear. Pierre Leblond who worked in product development for Imperial Tobacco is expected to testify for only one day.

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.

Tuesday, 28 August 2012

Day 49: Conflicting ITL testimony

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

This morning Bruce Johnston resumed his questioning of Imperial Tobacco's main witness, Ed Ricard.  Again the witness faced a barrage on his credibility and the credibility of the company where he had spent his 28 year career and where his father was once the boss.

Unlike the pugilism of the initial questions yesterday afternoon, Bruce Johnston today adopted a more subdued questioning style, offering a patient and detailed comparison of Mr. Ricard's testimony against the evidence offered by other witnesses or documents.

For his part, Mr. Ricard also changed the style in which he answered. While refusing all invitations to change his testimony or have his memory refreshed, he less frequently responded with glib non-answers.

The result was a compact farewell tour of the issues as expressed by Mr. Ricard.  This concentrated review of key issues, and often dramatic conflict among witness testimony made for one of the richest audience experiences of the trial to date. (The international tobacco control experts who took a break from the World Cancer Congress to visit the trial today may have left with a rosy view of the viewer friendliness of these proceedings).

Common law duty to warn 

Bruce Johnston again started by asking Mr. Ricard about the alleged agreement between the government of Canada and Imperial Tobacco, and the witness' view that the company was prevented from warning its customers or providing them with health information about their products.

He showed Mr. Ricard the 1988 Tobacco Products Control Act, recalling previous occasions when the witness had presented the same law to different courts. He drew attention to section 9(3) which clarified that compulsory health warnings did not replace any other legal obligations of the industry.

Tobacco Products Control Act, 1988, s. 9(3)
Unlike Mr. Mercier, who had seen the same section on May 7th, Mr. Ricard did not acknowledge that there were no real legal impediments. To the contrary, he said, other parts of the law restricted anything but "name, brand name, trade marks," tax stamps and consumer packaging information on packages. Mr. Ricard was prepared with a counter-explanation.
Our interpretation of the law was that the messages needed to appear on the packs as identified in the legislation. .... I maintain our testimony. 

Nor would Mr. Ricard offer any suggestion of why Mr. Mercier, who was his president at the time the law was passed, would have had a different view.

Marketing safer, marketing lighter. 

In the later part of his work with Imperial Tobacco (he retired at the age of 50 in February 2011), Mr. Ricard headed up the company's harm reduction project. Mr. Johnston wanted to know how the company planned to market these products if they were banned from talking about risks of smoking. Upon a successful development of a safer cigarette you would then be forbidden from telling people about it? he asked.

Mr. Ricard explained their approach "If we had a product that was scientifically supportable that it was different on the market one of the major challenges was how to communicate that to the public. One of the principles in the department was that if we ever got to that point we would do it with the government." 

This approach was never put to the test. Mr. Ricard testified that the harm reduction program was 'reorganized' in 2010, and that "the idea of bringing other [non combustible] products to the market was dropped." At the same time much of the work on combustible products was moved to BAT headquarters in the UK.

Yet Imperial Tobacco continues to manufacture and sell lower-delivery products and Mr. Johnston pointed out that "several witnesses, including yourself, testified that you did believe that light delivery cigarettes posed less of a risk than other products."  

After pushing Mr. Ricard to elaborate on why he thought light cigarettes were a "good thing" and drawing out his belief that they were associated with a "statistically reduced risk" of smoking, Mr. Johnston contrasted this with the testimony of  Imperial Tobacco president, Marie Polet.  On June 5th Mme Polet testified that she did not think there were studies that showed that lower delivery brands are associated with a lesser degree of illness in smokers.

Again, Mr. Ricard could not explain the discrepancy in views.

Contradicting the boss - again

Not only did Imperial Tobacco's president and Imperial Tobacco's witness disagree about the existence of certain scientific evidence, they even disagreed about the existence of scientists in the company.

Mr. Ricard testified again today of his work until 2010 on a harm reduction project involving 5 scientists. (Although he could not remember, despite repeated questions, in which scientific fields these subordinates were trained, he could remember that the goal to reduce emission levels of around 40 toxic constituents in cigarette smoke was based on scientific advice on what was achievable). Yet the president of the company had told the court that the scientific labs were dismantled "long before" her arrival in 2011.

Did Mr. Ricard think Mme Polet was wrong? We'll never know. Justice Riordan maintained an objection of Deborah Glendinning to the question.

Marketing to Youth

Mr. Ricard repeatedly re-affirmed his view that Imperial Tobacco never targetted its marketing to persons under 18. Yet ITL spokesperson, Michel Descoteaux had written to parliamentarian Russell Williams in 1998 (exhibit 65) to the effect that Imperial Tobacco had indeed targeted 16-19 year olds in the years when the "legal age" to purchase cigarettes was 16.

"Mr. Descoteaux never worked in marketing, never had anything to do with target markets," said Mr. Ricard dismissively.

Media plans 1981 - Exhibit 300
Yet those who worked in marketing had apparently seen young smokers as targets, according to documents filed earlier in court, such as plans for advertising expenditures (Exhibit 300).

Oh no, explained Mr. Ricard, this didn't suggest that they were planning to spend more advertising to young males -- merely that they were using Print Measurement Bureau statistics to ensure that they did not market in print media with less than an 85% adult readership. (Say what?!)

New documents were filed that gave Mr. Ricard further opportunities to explain away the repeated and consistent emphasis on a youthful image for its brands. Some of these were subject to rulings by Justice Riordan and also the Court of Appeal.

Imperial Tobacco went to some lengths to try to keep these 8 documents off the public record.  The four that are now available are marketing documents from the late 1980s (Exhibits 292-82 292 - 88292 - 88A) and a 600+ page summary of the holdings of the Imperial Tobacco marketing library (Exhibit 520).

Another marketing documents (Exhibit 292-87, a 1986 consumer research planning summary) sheds further light on the "Youth target" research which was much discussed during trial of the federal Tobacco Act. It turns out that the project was dreamed up with Labatt Breweries (the company to which ITL's former marketing head, Tony Kalhok, had moved three years earlier).

Currently, there exists no on-going research available to Imperial Tobacco that looks specifically at youth lifestyles' values and attitudes. In an attempt to fill this gap, we have joined forces with Labatt Breweries and Creative Research to develop a research methodology whose major objective would be to identify meaningful lifestyle parameters of young Canadians (what turns them on). 

It is not known whether this annual survey of children as young as 13 was ever successfully syndicated to any other companies, or whether it continued to "fill the gap" for the shared interest and budgets of beer and tobacco companies.

Tax evasion? surely not ... just a labelling issue.

A month from today, the Quebec Court of Appeal will consider a request from the three defendant tobacco companies for a review of Judge Riordan's decisions at the outset of the trial that he would allow questions on the participation of the companies in contraband cigarette sales. Until then, the trial has been treating the subject like thin ice.

Bruce Johnston tested that ice today, as he pushed on the credibility of Ed Ricard and Imperial Tobacco. He began by asking Mr. Ricard whether Imperial Tobacco voluntarily participated in the round-tripping of cigarettes through the duty-free market. Mr. Ricard said the company knew it was happening, but did not actively participate.

"Did you know that imperial tobacco pleaded guilty to the criminal charge?" Mr. Johnston asked. Dismissing the objection of Deborah Glendinning, the judge allowed the question.

"I am not aware that Imperial Tobacco pleaded guilty to a criminal charge, the witness replied. "My understanding it was a contravention of labeling product - it was improper labeling of products."

This was the cue for Bruce Johnston to present Imperial Tobacco's pleading (a document not yet made available by federal or provincial governments that negotiated the plea bargain with the company). The French text, flashed on the screens in the courtroom more quickly than it could be fully transcribed, admitted that between the first of January, 1989 and February 28, 1994 the company had possession of and had assisted individuals in selling tobacco that did not have a tax stamp and that this criminal offence under the Excise Tax act was admitted. (The plea was entered as an exhibit, but is under reserve and not available pending the Appeal Court decision). Not having a tax stamp is one way to creatively downplay the seriousness of tax evasion as a labelling infraction.

The ice was too thin, however, for Mr. Johnston to line up another shot at the credibility of Imperial Tobacco on this issue. He tried to introduce into the trial record comments from another Quebec Superior Court justice, André Denis (who ruled in 2002 that The industry was a willing accomplice of black-market cigarette smugglers), but Justice Riordan would have none of it. Bruce Johnston's plea that the ruling went to the credibility of the defendants fell on apparently deaf ears.

Whom to believe?

By the end of the day it felt like we had all attended a refresher course on many of the key trial issues where  the evidence doesn't add up. Somebody has to have it wrong.

Speaking of having it wrong, I misidentified the counsel representing the Canadian Tobacco Manufacturers Council in an early post yesterday. My apologies to Ms. Genevieve Gagnon and also to the other Ms. Gagnon.

Tomorrow, Wednesday August 29, Mr. Ricard will make what is expected to be his last appearance. In the afternoon, a former librarian for Imperial Tobacco, Ms. Rita Ayoun, will testify.

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.

Monday, 27 August 2012

Day 48: And we're back! ......

The summer break ended for the Quebec class action tobacco trials sharp at 9:30 on Monday, August 27th, 2012 when Justice Brian Riordan entered courtroom 17.09 for the first trial day in 9 weeks.

It didn't take long for the summer to recede into history, and for things to return to the 'normal' of this trial. Lawyers from six parties (the two class action plaintiffs, the three tobacco companies and the federal government) soon engaged in a fractious day of arguments and testimony.

There was barely a pause to acknowledge the passing earlier this month of one of the class representatives, Mr. Jean-Yves Blais.

Jean-Yves Blais: 1944-2012

Jean-Yves Blais outside the courtroom
March 12, 2012
When Mr. Blais attended the opening day of the trial, five months earlier, he seemed in poor physical and mental health, much older than his 67 years. He struggled to answer the questions the media gently put to him.

Supporting him at the court that day were his wife, Lise, and his son, Martin. They were in court again today, and Justice Riordan expressed his condolences directly to them.

Mr. Blais was one of an estimated 1,200 Quebecers who have died from lung cancer or respiratory disease since the trial last sat in June.

Inner workings exposed
The morning and the early part of the afternoon were spent going through an agenda of more than a dozen case management issues that required court time. Other less contentious changes that were made during the summer may become evident later.

It is said that the two things that are better to not see made are laws and sausages. Case management of a lawsuit of this length and magnitude might also qualify for such a viewer advisory.  Sausage meat is not as finely ground as many of the points made today!

Changes to the witness list

New on the witness list, if I heard the name correctly, is Mr. Leblond, a former leaf blender with Imperial Tobacco Canada. He is scheduled to appear later this week.

Dropped from the witness list is Mr. Roger Martin, who is currently the Dean of the Rotman School of Management, but who once was a consultant to Imperial Tobacco Canada. Instead of testifying, he prepared an affadavit on how his engagement with Imperial Tobacco was unrelated to the super-charged issue of removing scientific documents from the reach of litigants. In his affadavit, Mr. Martin explains that it  is entirely coincidental that Mr. Roger Ackman and Mr. Patrick Dunn chose to chronicle their dispute over destruction of documents at ITL during a communications training session. His account also explains why it is entirely normal that there is no other record to substantiate this version of events, and no other record of that meeting. An entertaining read.

A change in venue has been made for the questioning of Mr. Peter Gage, former RBH employee. Next week, lawyers will decamp to Victoria, British Columbia and will question him from there while those based in Montreal can  watch the proceedings on screen.

Disagreements about documents 

The plaintiffs have subpoenaed documents from the CTMC, and a motion to quash this subpoena will be argued next Tuesday. A former employee of  the CTMC (Ms. Takacs?) will appear in connection with that motion. This arrangement was arrived at despite exuberant industry protests decrying a "fishing expedition" and "discovery of a non-party in the middle of the trial." Watching these discussions but keeping quiet was CTMC's counsel (and new face to the trial), Ms. Genevieve Gagnon from the lawfirm Julie Chenette

Other disputed documents which have been newly requested by the plaintiffs include records from Imperial Tobacco's defence of a claim in Ontario by the estate of Miriana Spasic, who died of lung cancer in 1998.

The federal government asked, and received, an extension on the time available to them before being required to file case material. This was granted under the shadow of a pending Court of Appeal ruling that might remove the federal government from the case altogether. Before granting their request, Justice Riordan teased the federal lawyers with a proposal that the government volunteer to provide the information to the industry irrespective of the eventual Court of Appeal in return for a longer extension.

The Macdonald Stewart Foundation documents

The plaintiffs indicated that visits had been made to the archives of the Macdonald-Steawart Foundation, and there was a brief discussion on how documents from this archive could be integrated into the trial record.

1964 Handwritten letter
between company presidents
Macdonald-Stewart collection 
The Macdonald tobacco company was a privately held business before it was sold to RJ-Reynolds in 1974 by David Stewart. (The company operated as RJR-Macdonald until it was sold to Japan Tobacco, and has been known as JTI-Macdonald since 1999). Some of the business material that was in the personal collection of the Stewart family was transferred to the foundation that was created with the proceeds of the sale.

In addition to an excellent collection of cigar indians and cigarette paraphenalia, the archives also include documents that shed some light on the relationship between the companies during the years when the health harms of smoking were becoming widely recognized. Because these documents are not under the control of any of the tobacco companies (some of the letters we have seen in the collection were sent to the home addresses of the company managers, thus escaping company files) they would not have been exchanged as part of the 'discovery process'.

Ed Ricard returns - again

By the afternoon, the case management discussion wound down and Ed Ricard, former marketing strategist to Imperial Tobacco and the official company witness, was recalled to the stand.

From his first questions, Bruce Johnston swung hard at the witness. His goal was clearly to attack the credibility of the company's spokesperson at the trial.

Mr. Johnston pointed out several discrepancies between what Mr. Ricard had said over the years of providing information through deposition or testimony and the court record from other witnesses or documents. He repeatedly invited Mr. Ricard to change his testimony - but not once was this invitation accepted. "I am not going to change my testimony," Mr. Ricard repeated again and again. "I stand by exactly what was said."

Mr. Ricard's view of events sounded like a hard story to stick to, and with Bruce Johnston 'sticking it to him,' he soon began to look as battered as his testimony.

The first issue addressed was the putative existence of an agreement between the federal government and the industry that constrained the company's ability to provide truthful information to its clients regarding health consequences of smoking. Mr. Ricard had testified that he recalled clearly reading that such an understanding existed. A request for documentation related to this claim resulted in more than 60 documents being produced by Imperial Tobacco (Mr. Ricard did not know how those documents were selected). When pressed to point to the document among those that was the source of his belief about an agreement, Mr. Ricard read a prepared statement into the record.

His taut text sounded so different than his previous testimony that the impression that it was written by someone else was instantly set. He said that the voluntary code agreement to not tinker with the health warning was "consistent with his understanding" that the government did not want the industry to be more forthright with its customers about the dangers of smoking. The delivery of this crafted message made him look even more like a man paid to take the fall.

Mr. Johnston highlighted the implausibility of such an agreement from several angles. Would not the president of the company or the head of public relations know of its existence?  But even when told neither Mr. Jean Louis Mercier or Mr. Descoteaux did not maintain that such an agreement existed, Mr. Ricard did not bend. "It does not change my testimony."

Mr. Johnston then turned to correspondence in which the department of Health was asking the industry to provide more health information. In particular, he focused on the response from the CTMC to a 1977 request for more educational messages, as Sweden in which the Paul Paré (who was both CTMC president and president of Imperial Tobacco) refused the request by saying that the companies "cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you."

"Mr. Paré wrote what he wrote," said Mr. Ricard today. "It does not change my testimony."

Mr. Johnston then turned to other topics in which the testimony of Imperial Tobacco's main witness was inconsistent with documents or with the views of other witnesses.  Did the company ever market to 16 year olds? (Mr. Ricard said no, Mr. Descoteaux said yes). Did it suggested that some cigarettes were less harmful? (Mr. Ricard said lower tar cigarettes were less harmful, ITL President Marie Polet said that it was very wrong to suggest they were safer).

By the end of the afternoon, Ed Ricard looked like a punching bag. He took the pounding, he swung with the blows and offered no real defence. Yet by day's end he had still not budged.

Mr. Ricard will return to testify over the next two days (Tuesday and Wednesday).  On Thursday, Mr. Leblond is scheduled to testify for the first time.

Summer rulings

During the summer recess, three rulings were issued in this case, none of them favourable to the tobacco companies. In late June, Justice Riordan ruled on two issues that were argued just before the summer recess. In one June 28th ruling, he rejected the tobacco companies' argument that they should not have to provide particulars on their finances to the plaintiffs (although he imposed confidential treatment of these documents). In another ruling on the same day, he refused most of the requirements Imperial Tobacco was seeking to have imposed on the federal government (although he imposed deadlines on the government).

From the Court of Appeal last week, Justice Allan Hilton refused Imperial Tobacco leave to appeal the June 5th decision of Justice Riordan to not put 8 documents under confidential seal.

More rulings are to come ... this Friday the Court of Appeal will hear requests from two of the companies regarding the June 28th ruling on financial records. On the same day, the federal government will request leave to appeal Justice Riordan's decision to disallow some of the expert opinion of David Burns.

Friday, 10 August 2012

Please release me, let me go....

The three parties involved in the Quebec class action suits assembled in the Pierre-Basile Mignault room in Montreal's beautiful Court of Appeal on Thursday, August 9 to seek a decision on whether the federal government can be liberated from this trial.

The Court of Appeal was asked to decide whether the February 2012 decisions of Justice Riordan to allow Imperial Tobacco to expand its claim against the federal government, and to reject the government's request for dismissal of all the third party/action in warranty claims made against it by the three tobacco companies.

Getting the Court of Appeal to overturn a lower court decision is a two-step process - the usual first step is to convince one judge of the Appeal Court that an appeal is justified, the second is to convince a bench of three judges that the initial ruling was wrong.  But just over three months ago, Justice Kasirer deferred the decision on the government's request for leave to appeal these decisions, and set an unusual mid-summer hearing for three of his colleagues to consider  all issues together. So it was that the questions were the subject of a one-day hearing before Justices Jacques Léger, Jacques Fournier and Clément Gascon.

Belt and suspenders: two legal principles to support the federal position.

Within my circles, the case for the federal government is considered very strong. The Supreme Court, after all, unanimously determined a year ago that that it was "plain and obvious" that similar claims by the tobacco companies in two B.C. cases had "no reasonable chance of success and should be struck out." Core government policy decisions, the Court confirmed, are shielded from lawsuits. Moreover, it said, the floodgates of such "indeterminate liability" against the government should be kept closed. With the same industry claimants, the same government defendants and the same government-industry interactions involved, the issue has already been decided, the government and its supporters say. It is a chose jugée!

To add to this belt of legal doctrine the suspenders of a second legal principle are attached - the doctrine of precedent. Because the Supreme Court unanimously sided with the government in this chose jugée, and because such decisions are binding on all lower courts, it is thought inevitable that the Quebec Court of Appeal will come to the same conclusion. This is what the New Brunswick Court of Queens Bench decided last February when it struck out similar third party claims by the same companies against the same government over the same issues.

These two issues were the core of the federal government case presented confidently during the morning session by counsels Nathalie Drouin and Maurice Régnier. Their presentations detailed the many ways in which the actions in warranty were identical to the third party claims that had been considered and struck out by the Supreme Court and the many reasons why the Court should make exceptions to the general rule of not allowing appeals of such rulings when a trial is ongoing. The amended claim of Imperial Tobacco was dissected and presented an unacceptable attempt to slide past the Supreme Court decision.

(When available, the written arguments of the federal government and industry will be posted here).

Hoist on its own petard?

Despite the safe money being on the federal side, the tobacco company representatives (Suzanne Coté and Craig Lockwood for Imperial Tobacco, Simon Potter for Rothmans Benson and Hedges and Doug Mitchell for JTI-Macdonald) offered the judges a variety of reasons to refuse to consider the appeal and to uphold Justice Riordan's decision.

During their afternoon's presentations, they took several swings at the strategy of the federal government leading up to the trial, especially its decision of postponing any attempt to get out of the Quebec case until the BC issues were resolved. (A few weeks before the Supreme Court issued its decision, the federal government reached an out of court arrangement with the plaintiffs - it too was rejected by Justice Riordan.)

Simon Potter painted a picture of a recalcitrant government, resisting Judge Riordan's appeals to bring forward its motion to be dismissed from the case. He cited Judge Riordan's frustrated comments in his February ruling that although he had "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." Potter pointed out that in a ruling as early as 2008, Justice Riordan had pushed the federal government to fish or cut bait. The outcome was a decision of Justice Riordan to postpone a final decision on the federal involvement, a case management decision the Court of Appeal should respect, he concluded.

Craig Lockwood took swipes at other actions of the government, in particular its continued engagement in licensing 'lower tar' varieties of tobacco after evidence of compensation had been shared with them.  The industry should be permitted to show that these actions were wilful and reckless, he said, and therefore the federal government should remain in the case.

The B.C. (and New Brunswick) cases should not be considered precedents, the industry argued, as they were decided on laws quite different than those in Quebec. Because the Supreme Court ruling was on the statutes in those provinces and not on common law or other principles, the ruling did not automatically apply to Quebec's differing laws. In support of this position, they emphasized the logic of Judge Riordan's ruling that  another Supreme Court ruling (on the Canadian Food Inspection Agency) was more relevant as it reflected the constitutionality of different proceedings in different jurisdictions. The distinctiveness of Quebec's legal system was repeatedly emphasized by the industry's representatives.

Judicial solidarity?

To date, the Court of Appeal has turned down almost all of the appeals sent its way in this case, and concerns about allowing any appeals of decisions made while the trial was under way were reflected in some of the comments from the bench. Justice Leger pointed out that Justice Riordan would have taken the Supreme Court decisions into account before making his decisions. Justice Gascon reflected on the slippery slope of allowing appeals of interlocutory judgements.

A BIG decision

In this case, the Court of Appeal will have to decide whether to draw a line between the Quebec class action and the B.C. and New Brunswick case s and, if so, on which side of that line the federal government’s future involvement lies. 

It is not only the federal government and industry that have a lot riding on the outcome of this hearing. If the government is excused from the case, valuable experience and expertise sympathetic to the plaintiffs' side will leave the room. Testimony by the government's expert witnesses, which support the plaintiff's case, will not be available. The imbalance between the resources of four local law firms and those of three of the world's largest multinationals may become more important.

The Canadian public also stands to lose a unique opportunity for a judicial review, however strangely constructed, of the government's handling of a one of Canada's most sustained and deadly epidemics.