Tuesday, 13 November 2012

Day 82: a GREAT DAY for public health researchers

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

Some of the lawyers in the Montreal tobacco trial lay low, and leave a very small personal impression. Most seem to try to keep themselves and their clients on the judge's good side (which, in fairness to Justice Riordan, does not seem hard to do). Almost all convey their respect for the court in both the tone and content of their remarks. But don't count Silvana Conté in this group!

This senior litigator with Osler, Hoskin and Harcourt made her third appearance at this trial today. Once again, she aggressively pushed her position past the comfort zone of this trial and of this judge. Once again, she left the court empty handed.

But her loss represents a significant gain for public health research.

A megaload of data on Canadian smokers

For decades Imperial Tobacco maintained what is arguably the best and most consistent monitoring tool on smoking behaviour. Its Continuous Market Assessment (CMA) surveyed smokers behaviours, brand choices and knowledge and attitudes about smoking and health issues. (A review of the CMA - Continuous Market Assessment - can be found in Exhibit 524). The tables from decades of this research were kept on microfiche, and are said to exceed 37,000 printed pages. 

As part of the usual pre-trial exchanges, these records were provided to the plaintiffs and were reviewed by one of their expert witnesses, Christian Bourque. He used them as the basis of his report on consumers' knowledge of health harms. 

One of the roadblocks that Imperial Tobacco's lawyers tried to put on the use of the data and its treatment in the trial record was their claim that the information was confidential. Silvana Conté aggressively - and unsuccessfully - argued this position last May.  

But although Justice Riordan ruled against her request and the Court of Appeal refused to have his decision reconsidered, the door had been left open in the judgement for ways to minimize the release of information while satisfying the needs of the trial. 

Today Ms. Conté was back in the court with her proposals on how this could be done. She effectively blew off the core decision of Justice Riordan that these documents did not merit confidential status and suggested that a small subset of the file be placed on the record "under seal of confidentiality." What's more, she signalled future representations for confidentiality on other sections of the document.

Justice Reardon seemed taken aback. He turned to André Lespérance and asked doubtfully "Do you agree with that?"

Mr. Lespérance seemed to have given up his ambitions for this document he once fought to remain public. His chief concern, he explained, was to get the portions used by their expert witness on the trial record.

Justice Riordan was not satisfied. In a rapid-fire discussion with Ms. Conte he made it clear that her interpretation of his ruling did not sit well.  "Did I not decide on confidentiality?! ... We aren’t talking about whether it should be under seal later – I have ruled on that."  

He outlined Imperial Tobacco's choices - "What do you want to do – file the whole report or would you prefer to file only the portions of it that are necessary to complete your cross examination? Ms. Conté ignored the opportunity to climb out of the box she had put herself in during previous claims that the entirety of the record must be considered.

André Lespérance offered an openness to the partial record being produced, provided that Imperial Tobacco would not follow through on its earlier threats to try to make the Bourque report not receivable without the entire CMA record on file.

Silvana Conté wouldn't say what the company's intentions were and Justice Riordan intervened again - "I want an answer to Mr. Lespérance's question - are you going to raise an objection to the receivability of the report because [the plaintiffs] did not file the whole document?" 

Deborah Glendinning tried to help her colleague out, but not to good effect."We won't be objecting to the Bourque report being filed, but we may well be objecting if the underlying documents have not been filed."

With the company's lawyers having rejected all of his proposals to reduce the public exposure of their marketing research, Justice Riordan moved on. "That’s it. I consider this matter closed. The document will be filed without being under seal." 

Government surveys have come and gone, and government policy on commercial interests has often prevented the release of brand-specific smoking behaviour. Imperial Tobacco's research is likely the most stable survey tool available to monitor the response of smokers to public policy and commercial pressures. The information that will be released soon - maybe even tomorrow - is a valuable gift from this trial to the public interest.

What a delight. And it was only 10:30! 

The mysterious 'motion for directions'

The anticipated discussion on a tobacco industry request for demands to be made of the plaintiffs did not take place. Justice Riordan said it would be deferred till tomorrow, as "one of the issues raised in this motion that needs to be explored further is the plaintiffs' deposition with respect to the Legacy documents."  He also dropped several hints that he had reservations about the motion or its likelihood of success - ("It seems to be a disguised appeal of my May 2 judgement").

The non-discussion that followed this announcement sounded like a prequel to some major upcoming tensions on the use of documents that have been filed as a result of Justice Riordan's oft-cited May 2nd judgement. The companies today repeated their intention to erode the trial value of documents that are "not proven" but that will be used to support the plaintiff's expert reports. 

Every trick in the book. And then more books and more tricks.

Although I did not catch it, I am told that the companies also signaled that they will be presenting a "motion to dismiss" the case on the basis that the claims have not been proven. 

Another mountain of documents

It was not even morning break before the contentious issues of the morning had been dealt with and attention turned to the filing of documents. The first set presented were 'left-over' documents that could have been put on the record during the testimony of RJR-Macdonald senior executive Peter Hoult but which, by agreement were filed without the witness. They involved the use of additives in Canadian cigarettes. (They are not yet available)

The second set was similarly a grouping of documents left over from the appearance of one-time RJR-Macdonald lawyer, Guy-Paul Massicotte. These documents, also not yet available, mostly involved material he was sent in his capacity as Canadian link for the industry's ICOSI network.  

But it was the third set of documents, those connected to the expert report of Christian Bourque, that held a surprising disappointment. Although Silvana Conté had not persuaded Justice Riordan that any of Imperial Tobacco's marketing documents deserved confidential treatment, she had apparently been able to convince the plaintiffs team to agree to place many historic documents "under seal." 

Until this is changed, these documents - including many that predated any government surveys - will remain as locked up in the trial as they were at Imperial Tobacco's archive. Of the documents filed (Exhibits 987.1 to 987.50 - available soon), I counted at least a dozen that were made confidential by agreement between the parties.

Hopefully Justice Riordan will exercise his discretion and make the treatment of these reports consistent with other evidence at this trial.

[NOTE: The confidential status was removed the following day. See list of documents pasted below]

No witnesses are scheduled for tomorrow. The major focus will be on the treatment of documents from the Legacy collection.  On Thursday, some loose ends will be tied up as two witnesses (Mr. LeBlond and Mrs. Ayoung) return to finish their testimony.


The CMA studies below are now available. See note at end of blog if you have difficulty downloading them.  

987.19 Study - 8M - July/August 1955
987.20 Study - 8M - September/October 1956 
987.18 Study - 8M - September/October 1957
987.41 8M Study - December 1958/January 1959

987.40: 8M Study - June 1962 
987.46 Opinion survey on smoking and health - November 1963
987.42 Canadian Smoking Habits - Fall 1964
987.16 Memorandum on Export 'A', by Canadian Facts - January 1966 
987.43 Study - Canadian Smoking Habits - Spring 1966
987.45 Trends in cigarette smoking in Canada for 1967 
987.34: Study of Canadian Smoking Habits - July 1968
987.32: 8M Study - Fall 1968
987.30: Detailed tables - 1969 
987.29: Study of Canadian Smoking Habits - Spring 1969

987.9: Canadian Smoking Habits, by Canadian Facts - 1972 987.2: CMA - September 1972 
987.35: 8M Study - Spring 1973 
987.3 CONF CMA - November 1974 
987.39: Project Wrap - February 1974 
987.22 CMA - June 1979 
987.24: CMA - June 1977 
987.27 Report of a Survey on Current Consumer Beliefs and Attitudes Towards Smoking and Health - March 1977
987.50: CMA - July 1978
987.4: CMA - February 1978 
987.12: CMA, Volume III - 1978
987.23: CMA - November 1978 
987.13: Canadian Smoking Habits, Volume II - 1978
987.5: CMA - November 1979 
987.44: Vantage Advertising Research for 1978 -September 19, 1978 
987.10: CMA - February 1979
987.11: CMA - February 1979
987.14 University Smoking Survey - Report - May 1979
987.15: Segmentation of the French and English Speaking Canadian Cigarette Markets - 1979 

987.6: CMA - February 1980
987.26 CO Report on Qualitative Research - April 1981
987.47: Canadian Smoking Habits, Volume IV - Spring 1981
987.48CONF Canadian Smoking Habits - Spring 1982
987.36: Canadian Facts - November 1982
987.37: Canadian Facts - October 1982
987.38: Canadian Facts - Aug./September 1983
987.49: Canadian Facts - August 1983
987.7: CMA - February 1983 
987.25 Project Day, Exploratory Phase in Edmonton - August 1988
987.17 Project Viking, Wave 2 - August 1988
987.8: CMA - February 1989 

987.1: The Canadian Tobacco Market at a Glance - 1991 
987.21 Project Viking, Wave 3 - December 1991 

987.31: Detailed tables - unknown date
987.33: Study T-7204 - unknown date

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: https://tobacco.asp.visard.ca

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