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.