Tuesday, 27 November 2012

Day 89: Mr. Proctor shows he can not only walk a fine line, he can dance on one

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

I would bet that the tobacco industry lawyers felt well prepared as they entered  Montreal's Palais de Justice this morning, ready to defend their clients against the criticisms of Robert Proctor, the historian who is the first expert witness to testify at the Montreal tobacco trial.

Yesterday, they had been given the opportunity to challenge Mr. Proctor's qualifications, which they took as license to assault his reputation, mock his knowledge of Canadian geography and deride his research. From the laughter and verbal backslapping from their cafeteria table at lunch yesterday, it was clear that after a half day of courtroom pugilism, they felt they had left their marks on this witness.

Some of that confidence may have spilled over into today. At the end of the yesterday, Justice Riordan had suggested he was sympathetic to their view that Robert Proctor's mandate to review reports written by their expert witnesses did not permit him to write a counter-narrative. (Until he had ruled on the issue, the judge limited the testimony to the second part of the report, which is a more traditional academic critique.)

The industry lawyers arrived in court this morning armed not only with their confidence, but with several boxes of documents. It looked like they were ready to defend their own expert witnesses against any pre-emptive strikes from Mr. Proctor. They seemed ready also to make good on their threat of last week to pounce on any comments that Mr. Proctor made that were not substantiated by a document already on the trial record. (As Deborah Glendinning told Justice Riordan last Wednesday "We're going to be asking you to disregard any parts of his report where the documents are not properly in evidence. And, quite frankly, we expect we're going to be successful on many of these documents.")

What they had not counted on was a change in game plan on the part of the plaintiffs.

Mr. Proctor's second day 

Yesterday,  Bruce Johnston had asked for Professor Proctor to be qualified in the history of science, in the history of scientific knowledge and controversy, and the history of the cigarette and the cigarette industry. This morning, Justice Riordan mostly agreed to that qualification, but amended the last area of expertise to be  'the American cigarette industry.'

Justice Riordan's decisions had given the witness a broad qualification, but had limited his scope of comments to his views on the reports of Canadian historians David H. FlahertyRobert J. Perrins, and Jacques Lacoursière. (These gentlemen had been asked to provide reports on when awareness of health risks and addiction became part of the common knowledge of Quebecers, and the public health and government policies).

It soon became clear that Bruce Johnston was not interested in Mr. Proctor's views on what was in the industry's experts' reports, so much as he was interested in what was NOT in those reports. Mr. Proctor was given opportunity after opportunity to comment on the types of information that should have been considered by these historians, but which was not. Bruce Johnston seemed to have caught onto the perfect framework for his examination -- stay on the narrow path set by the judge, but use it to travel through some of the most interesting parts of the trial record and to provide them an historical context.

Mr. Proctor became the first witness to link exhibits from the trial to events in history. His decades of experience as a university lecturer were put to good use. Facing Justice Riordan, he concisely explained many key events in the public health catastrophe of tobacco use -- from the development of a cigarette whose smoke could be inhaled far into the lungs to the infiltration of public health authorities like the Surgeon General's reports by tobacco industry allies.

In his answers, Robert Proctor added details, context and colourful comments ("denialism", "conspiracy" "open controversy" "the cigarette is fraudulent by design") that were occasionally beyond the comfort zone of Justice Riordan and increasingly beyond the tolerance of the defence team. But he got his points across. It was the first time since the opening arguments that a narrative arch had emerged from the thousands of documents.

Doug Mitchell and Simon Potter are both highly theatrical lawyers, but today their outrage did not seem feigned. Their confidence from yesterday seemed to have evaporated. Doug Mitchell frequently got red in the face as he rose to object. "What is Mr. Proctor going to add other than his nice narrative flow and throw some more adjectives on the fire?" "He is just throwing stuff out there - he makes statements like I AM GOD!" 

But an even greater concern to the industry lawyers seemed to be that the work they had done to prepare to knock out the documents used by Mr. Proctor in his original report was for naught. Bruce Johnston had knocked them out himself by selecting an entirely different list of documents. The ones he used were already on the trial record.

The companies tried to make a 180 degree turn on their position that Proctor's sources were unusable. Last Wednesday, Deborah Glendinning had argued that Mr. Proctor could not testify on the documents he had identified in his report, as they had not been properly introduced in the trial.  "Most of the documents that he relies on are not in evidence, it's not proper procedure, it's not the way to go. ...We have a man who - right - wants to come and tell you a big long detailed historical story when none of the documents basically of import that he relies on in his report are properly in the evidence."

Today her protests went the other way. She wanted him to use those documents  "I have another objection for the record – this document was not in Mr. Proctor’s report .... We had 279 documents in his report. We are not even dealing with them." I guess there is no pleasing some people.

A highlight tour, with an expert guide

ITL's surveys on knowledge of harm
were ignored by industry expert witnesses
Exhibit 127
Each document presented to Mr. Proctor was a reminder of the history that had been neglected by the industry historians in their analysis. But it was also a tour around some of the most damaging evidence on the trial record. These included Imperial Tobacco's careful tracking of public understanding of the harms of smoking (Exhibit 127   987.41), its newsletters to employees promoting the benefits of smoking (Exhibit 126A), and its denial of health risks before parliamentary and government reviews (Exhibits 2, 729B).

Through these questions, Mr. Proctor was able to provide the context that he had written in the part of his expert report whose fate was still in the air. This fact was not lost on the industry lawyers, but it didn't seem to faze the judge.

Deborah Glendinning: All of these questions go to the first part of the report. 
Justice Riordan: We are really dealing with the moment of belief – I don’t see how this goes to that.

A late-in-the-day counter move

The defense team was so unprepared for the plaintiff's change in tactics that it took them most of the day to come up with a counter-strategy. At  3:45 p.m, Suzanne Coté asked for and received permission to present jurisprudence in support of limiting Robert Proctor's testimony to his written report. Justice Riordan agreed to hear her arguments, and dismissed Robert Proctor for the remaining half hour of the day.

But before she could present her case, Bruce Johnston revealed another tactical change. The plaintiffs' team was "evaluating the need to examine him on the first part of his report" (i.e. withdrawing the first half of the report) and was close to asking their final questions of this witness. The defense team should be ready for their cross examination tomorrow.

The court adjourned after Suzanne Coté presented her arguments for constraining expert witness testimony. A lot was in the air -- would the plaintiffs save Justice Riordan the effort of preparing a ruling on the first half of the report by their decision to withdraw it? (They promised to send word by 8:00 p.m.). If not, would Justice Riordan rule in favour or against the report?  Will there be further arguments on Suzanne Coté's argument that expert testimony cannot stray from expert reports?

And what surprises will tomorrow bring?

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.