Wednesday, 21 November 2012

Day 86: Twenty-Eight Seventy (2870)

See note at the end of this post for information on accessing documents

More surprises were in store today at the trial of the Quebec class action suits against the three Canadian branches of the multinational tobacco companies BAT, Philip Morris International and Japan Tobacco.

The witness who had long been scheduled to testify at the trial, David Sweanor, was no where to be seen. His appearance was cancelled yesterday, with no explanation made public.

The unexpected hole in the trial schedule became an opportunity for a case management discussion that took the entire morning. This allowed for a continued discussion on issues raised last week, but not resolved. These included Justice Riordan's still unsuccessful attempts to get signals from the tobacco companies on how they intended to present their defence, as well as the plaintiff's attempts to cross all the 't's and dot all the 'i's in the next three months of the trial.

The numbers game

As a young child, I used to listen to my mother and grandmother playing the cardgame cribbage. I heard their recitation of the mysterious numbers  - "fifteen two," "fifteen four," "fifteen six," -  as a clear signal of their elevated status. Only by knowing what these numbers meant could I ever be let in on the game! But how to find out?

I never really learned to play cribbage, but I have not forgotten the allure of the chanting of mysterious numbers. Over the past months I have frequently experienced the same bewildered wonderment when numbers with clearly-special meaning are tossed around the court room.

One number much bandied this month has been 2870 (pronounced by Quebec lawyers as vingt-huit soixante-dix, and by come-from-aways as twenty-eight seventy). The number refers to the section of Quebec's Civil Code that establishes rules for admitting unconventional evidence into trial.
2870. A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.
The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.
The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.
This provision of the code took on an even greater importance this month as Justice Riordan persuaded the plaintiffs to abandon their plans to introduce documents from the Legacy site through a witness from that library. Instead of trying to set a precedent, the judge had recommended, it was better to take a "catholic"  approach. When André Lespérance informed the court last week that they would instead use the provisions of 2870 for these documents (but bene esse), Justice Riordan smiled broadly.

Much more on this process in this trial will be revealed. Four days of hearings in December (the 13, 14, 19, 20) have been assigned to looking at the use of this provision to put additional documents (including 160 documents from Legacy) onto the trial record.

As Justice Riordan put it today, this route is "not ideal, but is not illegal."

A ruling that hints that 2870 might be accommodating?

Last Monday, Justice Riordan had been asked to rule on whether David Schechter's testimony at a previous trial could be admitted to this process under - you've got it - article 2870. Last Wednesday, he had ruled that it could, and this week he issued his reasons.

To this untutored eye (any occupation with 2870 rules is way too intimidating!), the ruling seems to encourage the view that a lot of information could come in through this process. Justice Riordan did not buy the arguments proposed by Imperial Tobacco that a necessity test should apply. He ruled that Mr. Schechter's testimony was both admissable and reliable. (He even offered another section of the Code that could have been used to justify admitting this testimony).

Justice Riordan's ruling also criticized Imperial Tobacco's argument for having "nearly led [the court] into error" Today, Suzanne Coté politely but firmly defended the argument prepared by her colleagues. She elicited a respectful acknowledgement from Justice Riordan that his words may have gone further than he intended.

Preparing for Robert Proctor - never too early to throw a little mud

Again today, tobacco industry lawyers did a little chest pounding about the appearance next week of noted science historian, Robert Proctor.

Doug Mitchell was blunt. "We have a problem with Mr. Proctor testifying at all. That will be debated."  Pressed by Justice Riordan, he outlined some of the arguments that the companies will be forwarding on Monday to try to disqualify Mr. Proctor and his testimony. These will be presented during the 'voir dire' that will precede his testimony. The companies say they need a whole day to challenge Mr. Proctor's qualifications.

Mr. Mitchell didn't look the least uncomfortable as he took a few early swings at Mr. Proctor's character. “I bet he is going to say he is an expert in a lot of things I would not think he is an expert in. He’s a prolific man. He’s been on [CBC Radio's programme] Q! Will he recognize he’s not an expert in law, despite the fact that he makes several legal conclusions? ... We’ll see!" 

Simon Potter used a similarly sneering tone to express his concern that "we have a man who wants to come and tell you a big long detailed story where none of the documents are properly in the evidence."

Justice Riordan said he had read Mr. Proctor's expert report twice, and expressed sympathy for some of the industry's concerns, including the scope of Mr. Proctor's report and the evidentiary support for his conclusions. He noted that latter part of the report was more focused on his mandate to "evaluate and comment on three expert reports submitted by historians hired by Canadian tobacco manufacturers" David H. Flaherty, Robert J. Perrins, and Jacques Lacoursière), but that the opening section "goes well beyond"  context setting for this mandate.

Bruce Johnston offered his assurance that the testimony would not stray beyond the mandate, and that the historical context was key to the witness' conclusions.

For those missing Don Cherry's hyperbole and the pugilism of Hockey Night in Canada, next Monday's attempt by Simon Potter, Deborah Glendinning and Doug Mitchell to take down Robert Proctor may be the next best thing. Seating is free.

Bigger Battles Ahead

Last week, Deborah Glendinning had signalled that ITL wanted this case to be thrown out without the company's having to present any defense. Today, she repeated that there would be "very significant motions to have part of the allegations dismissed for lack of proof" and that there were "a whole series of motions that we are in the process of preparing and considering."  If nothing else, the companies want more time. "We want some clarity before we begin our defense. Will be asking for delay before we present that defense."

Justice Riordan did not look impressed. He said wryly that he "was looking forward to reading" the motions, but that they were not customary and he would "have to be convinced." He repeated his request from last week that Imperial Tobacco start its defense by presenting its expert witnesses. After Deborah Glendinning informed him this was not their intent, he warned "I want to see the motions as soon as possible. Don’t assume that there will be a break between the two sets of proof." 

A bigger bowl from which to cherry-pick. 

The Montreal Gazette reported this week that the number of registered class members had reached 8,000. Last year, when the number was only 2,000, Justice Riordan had required the plaintiffs to provide the names and addresses of these class members to the tobacco companies. Last month, the Court of Appeal upheld his provisions that the companies could not contact those individuals nor access their medical records.

Today, the companies asked Justice Riordan to require the additional names to be provided and that they be allowed to use the larger list to draw potential witnesses. George Hendy presented the request: "You denied access to the medical files, just as the Court of Appeals did. You said that the survey expert had to be careful. That hasn’t change. All we know now is that there are 8000 and not 2000... The more information that we have, that you already said was compellable, then the better off we are going to be in preparing our case."

Justice Riordan agreed, and gave the plaintiffs a week to provide the additional names. But he emphasized the constraints on the use of that information, and pressed the companies to say when they would be issuing subpoenas. Again, they gave no clues as to their plans, except to say that they were "at least a year away" from calling these witnesses.

Will that be separate bills?

Justice Riordan repeated his request to the companies to provide him with historic market share information, only to be told that this was "controversial" and "very complex." After ITL and Rothmans had essentially rejected this request, the judge reminded them "If there is a finding of liability, then one of the aspects I am going to have to look at is how to assign it. One of the ways to look at it would be to look at market share. It seems to me to base it on tailor made cigarettes and not sticks."

Even at this, the companies volunteered only that there would be "factual and legal arguments" to establishing market shares. Justice Riordan reminded them that "If I can't get an agreement from you, it will be a gap in the proof and I will have to decide how to deal with it," and that his preferred approach was to get the information from the companies.

(As Justice Riordan talked about basing any damages on market share of tailored cigarettes, I wondered if Deborah Glendinning now regrets getting Justice Riordan to exclude fine-cut from the case, as without fine-cut her client has a much bigger share of the market).

Lots more to come!

A few more adjustments to the schedule were agreed to. Pending confirmation, the road ahead is:

November 26 - 29: Expert witness Robert Proctor (4 days)
December 10 - 13:  Fact witness Jeffrey Wigand, (2-3 days) and discussion of 2780 documents
December 17 - 20:  Expert witness Robert Proctor (2-3 days) and discussion of 2780 documents
January 14 - 17:  Fact witness P. Cadieux (2 days) and expert witness Christian Bourque (2 days)
January 21 - 24:  Expert witness Richard Pollay (2 days)
February 4 - 7:  Expert witnesses Alain Desjardins (2 days) and André Castonguay (2 days)
February 11 - 14:  Expert witness Louis Guertin (2 days) and fact witness Frank Lane (2 days)
February 18-21: Expert witness Jack Siemiatycki (4 days)
March 4 - 7: Juan Negrete (4 days)
(During the interim weeks not identified in this list, the court will not be sitting.)

Tomorrow there will be no witnesses. The time will be used to produce more documents on the trial record.

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.