Monday, 24 September 2012

Day 60: A bolt from the blue

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

My guess is that each of the six legal teams involved in the Quebec tobacco class action suits spent hours this weekend reviewing scenarios for the scheduled testimony today of RJR/JTI-Macdonald's chemical analyst, Ray Howie.

If so, they may wish they had just gone to the movies or played with their children. What happened today threw over everyone's game plan for the day, and may even change the course of this trial.

The day started routinely enough. André Lespérance unhurriedly introduced documents and asked questions, which Ray Howie calmly answered.

For about an hour the focus was on the company's efforts in the early 1980s to allay concerns about (and avoid regulations over) carbon monoxide in cigarette smoke. It was a perfectly interesting story and a juicy example of the industry's willingness to sidestep health concerns (see below).

Mid-morning Kevin LaRoche, who represents JTI during Mr. Howie's testimony, tried to put some brakes on the damage to his client. He told Justice Riordan that he was concerned that the discussion of the company's actions related to the effect of their cigarettes on fetal weight and cardiovascular disease was wandering away from the "class diseases" of lung disease and addiction.

André Lespérance, likely thinking that this was no different from scores of objections on relevance that are quickly dismissed, briefly responded that their claim included the companies' failure to warn and therefore questions about informing smokers of the risks of carbon monoxide to heart disease and fetal weight was relevant.

Kevin Laroche pressed his case, saying that the scope needed to be limited “otherwise it becomes a Royal Commission of Inquiry into the behaviour of the industry which is one thing it can't be if we want it to finish in this century."

Justice Riordan dropped a bombshell:  I maintain the objection.  Unexpectedly, the plaintiff's case lay on the chopping block. Swaths of evidence presented and planned was suddenly ruled not relevant to the trial.

Immediately Bruce Johnston and Philippe Trudel were on their feet. Bruce Johnston pointed out that the Letourneau claim on addiction in particular relied on allegations that the companies lied, which they needed the opportunity to prove. It's a stunning, STUNNING objection, he exclaimed. Indeed they all looked quite stunned.

Justice Riordon then made a second surprising statement, inviting the plaintiffs to refer the decision he just made to the Court of Appeal. He went further to say that he would welcome that higher court's clarification. This sudden desire for a higher court's view is very different than his usual more biting references to the frequency with which the tobacco companies try to appeal his decisions.

Philippe Trudel recovered quickly enough to request the opportunity to present a motion for reconsideration in the afternoon, which was agreed to.

So, six months into the trial, what was that cause of action again?

And so it was that in the afternoon Mr. Howie was sent home and Justice Riordan was presented with some quickly developed arguments for and against a mid-trial change in the scope of examinations.

It was up to Philippe Trudel to make the arguments for the plaintiffs. He pointed to the numerous clauses in motion to institute proceedings that specifically refer to the company's failure to warn, and the detailing of 31 diseases caused by smoking. Among those claims is the allegation that "Mrs. Létourneau is addicted to nicotine, a toxic product and her addiction exposes her to an increased risk to get one or many of the diseases associated with cigarette use, as well as expecting a reduced lifespan." [unofficial translation]

He also referred to the decision of Justice Jasmin when certifying the class action, and the questions that were set to guide the joint proceedings: [unofficial translation]
* Did the defendants have knowledge of, or could be presumed to know about the risks and dangers associated with their products
* Did the defendants put in place systematic policies of non-disclosure of these risks and dangers
* Did the defendants trivialize or deny these risks and dangers?
It was not only the plaintiffs that thought these issues were part of the trial, Mr. Trudel pointed out, but also the defendants. He referred to the company's filings and the plans to have expert witnesses rebut allegations about many diseases.

Earlier attempts to strike down the parts of their claim that included other diseases, he reminded Justice Riordan, had been rejected by Justice Julian in a 2006 ruling. Justice Riordan himself, in a 2001 decision had rejected a request by Health Canada to limit questions to their witness, Denis Choiniere. At the time he had said that such information was relevant "in light of the claim for punitive damages." 

A decision to prevent the introduction of evidence to support their allegations was just another way of striking those allegations out of the claim, he pointed out. 

Both Mr. Trudel and his colleague Bruce Johnston tried to explain why industry actions to minimalize disease risks was part and parcel of their cause of action and their theory of the case.

Mr. Pratte, who led the industry's positions took a different approach in presenting his arguments, ignoring any pleadings or case materials. He acknowledged that the plaintiffs had met the necessary test of showing that these diseases were included in the pleadings. But this was not sufficient to allow these issues to remain part of the case, he said. He relied on case law and legal analyses which he shared with the other lawyers, but did not display on the screens.

Mr. Potter seemed to respond to hints dropped by Justice Riordan of a desire to rein in the trial. He reminded the judge of his decision in June to rule questions regarding 'firesafe' cigarettes irrelevant. He suggested that Justice Jasmin's foundational questions were not always relevant. 

For Imperial Tobacco, Craig Lockwood made a very short comment to the effect that there "needs tie back of common issues and class definition. There needs to be a substantive hook into the damages." For the federal government, Maurice Regnier said nothing.

We're awake now

Last week, Justice Riordan complained that Bruce Johnston's questions might be intended to "wake up the judge." His ruling today has certainly shaken up the plaintiffs.

Justice Riordan adjourned the day without ruling on the motion for reconsideration. 

Back to Ray Howie and Carbon Monoxide

Before this dramatic turn, Ray Howie had continued his testimony about events at the company. He continued to maintain that he had little involvement in 'smoking and health' issues and was mostly unaware of the engagement of boss, Derick Crawford, on this file.

His ability to make this sound credible took a bit of a beating when André Lespérance asked him to read aloud a handwritten note received from his boss at the end of 1981. In it, Derick Crawford brought him up to speed on the threat of government action on carbon monoxide and the plans of the CTMC "to put together an industry document comprising input from all four companies trying to refute the alleged dangers of CO." Mr. Howie's proposed task was to quickly write up "two pages of facts on why we feel there is no justifiable evidence at this time to associate CO with any health disorder."

The problem identified in the memo and in Ray Howie's testimony was that the evidence wasn't all on their side - particularly with respect to the effect of carbon monoxide on fetal weight which "does not look too good." (Exhibit 600C, see also Exhibits 600600A600B)

The 30-year old memo seemed much more compelling after being read aloud in his Irish accent than if just flashed on the screen. Mr. Howie said the as events turned out, he had not written the paper requested. The government eventually "backed off" and had not regulated carbon monoxide levels until the passage of C-51 in 1988. 

Mr. Howie will continue his testimony tomorrow. Former RJR-Macdonald President, Peter Hoult, is expected to testify on Wednesday and Thursday.

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