Monday, 26 November 2012

Day 88: Industry tries hard, but fails to disqualify Robert Proctor

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

Version 1

Of the four days scheduled this week to hear the testimony of science historian, Robert Proctor, the entirety of the first day was spent in tobacco company efforts to persuade Justice Riordan to disqualify this witness.

Despite these efforts, Mr. Proctor will testify tomorrow. When the trial of the Quebec class actions against tobacco companies resumes, he will begin to present information from the second half (pp 75-107) of his expert report“A History of the Knowledge—and Ignorance—of Harms from Cigarettes in Canada, 1950-2000.”

The decision on whether he will be allowed to present the first half of his report has yet to come.

Version 2

The longer version of the day's events required a thick skin on the part of Professor Proctor, a willingness to play nasty on the part of the industry lawyers and an ability on the part of those in the unusually full observer section to sit and watch prolonged verbal attacks piled on a scholar. This is a rough sport.

The appearance of Mr. Proctor marks an important change in the trial. He is the first witness at this trial who is not a former tobacco industry employee, or otherwise a member of the 'tobacco family'. He is also the first expert witness and likely the shiniest 'star witness' the plaintiffs will produce. Mr. Proctor has a reputation, which means he has a reputation that could be destoyed.

The significance of the day was underscored by the presence in the audience of lawyers from litigation efforts underway in other jurisdictions, as well as an expanded cheering section for both plaintiffs and litigants.

If at first you don't succeed ....

This was the industry's second try at keeping Mr. Proctor out of the trial. The first time was argued in the early fall of 2011, many months before the open trial began. From his decision, it is clear that Justice Riordan was asked last year to consider many of the issues raised today (bias, foreignness, out of area of expertise, etc). Despite losing this first attempt to strike down Mr. Proctor's report, and despite failing to persuade the Court of Appeal to reconsider the ruling, the industry gave it an energetic second attempt again today.

The cart before the horse

One of the many peculiar things about this trial is the back-to-front way in which evidence is presented. One example of this is the fact that Mr. Proctor's mandate as an expert witness was to rebut the testimony of three historians hired by the tobacco companies:  David H. FlahertyRobert J. Perrins, and Jacques Lacoursière. Yet the contribution of those witnesses is some months off. 

Introducing Mr. Proctor

Robert Proctor
Immediately after the witness was sworn in, Mr. Bruce Johnston introduced  Professor Proctor by going through his curriculum vitae and highlighting his  many accomplishments.

Mr. Proctor explained that he decided to become a historian of science as it allowed him to not narrow his field of research when doing his graduate studies, but instead to retain broad interests. 

These varied interests are reflected in the books he has published in his 25 year career as a university-based researcher. (He is currently a professor at Stanford University in California). The titles are familiar to even casual followers of arts and letters - Racial Hygiene:  Medicine Under the Nazis; Value-Free Science? Purity and Power in Modern Knowledge; Cancer Wars:  How Politics Shapes What We Know and Don't Know About Cancer; and  The Nazi War on Cancer. 

In the past decade, said Mr. Proctor, more than half of his work had addressed tobacco use and tobacco companies. Although his most recent book, Golden Holocaust:  Origins of the Cigarette Catastrophe and the Case for Abolition, was published last year, he was no Johnny-come-lately to the topic of tobacco. Although he had actively worked on the book for a decade, he said it reflected the "sorts of things I had been thinking about for two decades." 

[If you have the patience for a long download, you can access an electronic copy of Golden Holocaust here]

Mr. Proctor is not only an experienced researcher, he is a seasoned trial witness. He said he had testified about tobacco on 30 occasions, and had never failed to be qualified as an expert witness. 

Doug Mitchell's mud-throwing arm

I have observed earlier in this trial that the lawyers working for Japan Tobacco (a team seemingly headed by Guy Pratte from Borden Ladner Gervais) have been the most cordial and constructive among the defendants' legal teams. Today, JTI-Macdonald seemed to have issued a cease-fire in their charm offensive. 

Lawyers from JTI's other firm, Irving Mitchell Kalichman, moved to the front desk. It's not a pretty job, asking questions designed to make experts look inexpert and Mr. Doug Mitchell, who lead the industries' charge, did nothing to make it look any prettier than it is.

There was something schoolyard-like about the style with which Mr. Mitchell worked through a long list of items where he thought Mr. Proctor was vulnerable. Nonetheless, the calm and steady way in which Mr. Proctor replied to the lawyers' high-pitched and overly-modulated insinuations often made the witness sound like the one in control.

What we learned from Mr. Mitchell's questions was that Mr. Proctor was not an expert in many areas related to tobacco use (addiction, marketing, psychology, etc). We also learned that Mr. Proctor is not ashamed of having an "evidence-based bias" or of believing that "it is wrong for an industry to produce a product that kills millions of people."

Mr. Mitchell characterized Mr. Proctor  - "from California" - as a man with no authority to speak of events in Canada. He asked questions that successfully showed the witness' poor command of Canadian or Quebec political history. He also found flaws in the expert report, including referencing and spelling errors.   He showed that Mr. Proctor did not have a perfect memory of the report he wrote 18 months ago and was unable to rhyme off examples of specific events to support some of his statements.

Simon Potter was only one other industry lawyer who participated in the exercise of disqualifying Mr. Proctor. Like Mr. Mitchell, he is a remnant of the old guard of industry lawyers who fought the federal government on advertising restrictions in the 1980s and 1990s. Mr. Potter went over much of the same ground Mr. Mitchell had covered, emphasizing the documents that Mr. Proctor had not accessed (i.e. from government collections) and suggesting that his report, produced in two months, was a rushed job.

Mr. Proctor's resilience to mud

Justice Riordan gave the companies a wide scope in their attempts to discredit Mr. Proctor. While essentially agreeing with one of Mr. Johnston's very few objections that the questions had more to do with the report than the witness' qualifications, he nonetheless allowed the questions to continue. 

Mr. Proctor took the opportunity of hostile questions to put his own views more clearly on the record. Among these were his concerns with the improper historical approach taken by the companies' experts. Assembling news stories about tobacco and health and not giving those clipping collections any historical context was not good historical practice, he said. "You cannot take what someone is told as evidence of what they knew. He invited comparison of trying to measure the Russian experience under communism. "Look how often they were told communism was good" yet it would be wrong to conclude from press coverage in Pravda that the Russian people actually believed that communism was good.

He told the court that the frequent reporting of tobacco and health stories over past decades does not illustrate that the dangers were will known, but rather the opposite. Newspapers don’t often write stories about not "sticking a fork in your eye" because the dangers of doing so are well established, he pointed out "One reason that newspapers kept publishing stories about tobacco use was because the harms were NOT well known." 

He similarly pointed to the importance of the numerous surveys conducted by the industry to establish the actual level of awareness of the harms of smoking. Public knowledge was heterogenous - including "heterogeneity by person, topic, age and by many other things as well." 

Arguments and legal precedents

At 3:00 p.m., Mr. Proctor stepped down from the witness stand and moved to a seat that was located just behind the "bar" that divides lawyers from non-lawyers and was a little ahead of the walkway that demarcates observers from official participants in the trial.  This half-in/half-out position seemed to reflect the limbo of Mr. Proctor's status as he watched the lawyers argue for and against his qualifications. 

Bruce Johnston pointed out that it was "obvious that he is extremely qualified – perhaps uniquely qualified – to perform mandate given to him." He pointed out that the mandate given to Mr. Proctor was not to be an expert in Quebec law or history, but "to look at the work of three historians hired by the defendants in this case and to review that work on the basis of whether or not it was proper historical scholarly work." 

And as for the industry's complaints that the report had been done in only two months "[David] Flaherty had 20 years and never looked at documents."

Justice Riordan asked Mr. Johnston to respond to his cautions from last week,  "I feel he has written two reports – one is the mandate, and the other is something quite different." 

Bruce Johnston explained that the testimony of the industry witnesses provided a connection between the two parts. These historians "are part of a method to try to shutter historians to let them arrive at the conclusions [the industry wants]. They allow themselves to have shutters put on them." If they had consulted the industry documents and assembled a story such as that in the first part of the report "they would have found their own historicity."

Doug Mitchell came armed with a number of court-rulings, recent and not-so recent, that spoke to the value of expert witnesses and the rules that should guide their role in court. He acknowledged that it was unusual to disqualify a witness at this point, but asked that Justice Riordan either do that or as him "to go back and write a report within the scope of his expertise."

Mr. Potter stressed Mr. Proctor's 'bias' as a reason to disqualify him. The court was no place, he said "for people who clothe themselves as historians and allow themselves to talk about anything, or a place for rant and contentious diatribe..."

Justice Riordan's ambivalence?

Justice Riordan hinted at some of his concerns before calling a brief recess at the end of the day. It was possible to have issues with the expert report, but not necessarily with the expert witness, he said. "He is here on a particular role with a limited right and capacity to testify." Whether or not he was morally right, said the judge, was not relevant to the job at hand.

When Justice Riordan returned slightly before 5:00 p.m., he was carrying and reading a document that  looked like it could have been his ruling from last year. His decision was briefly stated and incomplete:

"The second part of the report is admissible. We have allowed testimony to be given on it as well as cross examination – I haven’t changed my mind on what I said on that point.  As for the first portion, back in 2011 I said that I needed to have more information on the 'voir dire.' I would like to think about it a bit."

He instructed the lawyers to prepare their questions to start with the second portion of the expert report and that he would give his decision on the first part later.

Robert Proctor will be on the stand again tomorrow

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 
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