Thursday, 29 November 2012

Day 91: The 'common knowledge' defence takes a beating

There has been full house on the plaintiffs side of the courtroom this week during the testimony of historian Robert Proctor at the trial of the Quebec tobacco class action suits.

Several admirers of Mr. Proctor turned up to see their man in action (some of whom brought their copy of Golden Holocaust for signing). His fans, however, were outnumbered by visiting lawyers engaged in provincial lawsuits against the same tobacco companies. Talent scouts maybe?

It's always more fun to watch a game when the stands are full, and it was especially pleasurable this week to be surrounded by people who understand the law and 'the game' that is played out in court. Too bad they could not have left some of their insider insights behind after their short visit.

This knowledgeable audience seemed to have figured out by lunchtime yesterday (less than an hour after Mr. Potter started his cross examination) that the tobacco companies were doing themselves damage by prolonging this witnesses' time in the courtroom. It seemed to take the company lawyers another half day to figure this out.

But figure it out they did. This morning Mr. Potter announced that he had no more questions for the witness, although yesterday evening he had said he had a "number more" questions. He ceded the floor to his colleague from JTI-Macdonald, Mr. Doug Mitchell.

Like Simon Potter, Mr. Mitchell has decades of experience in tobacco cases in Canada, and has worked with many of the exhibits in this file during previous cases when his company was challenging federal laws banning tobacco advertising. Like Simon Potter, Mr. Mitchell is assigned the "bad cop" role on the defense team, and has the job of asking innuendo-laden questions and laying verbal traps.

(It is hard to describe in writing the particular contribution these lawyers bring to their questioning of this witness. The last person I knew who was able to say "Oh, I see" with the same blend of sneer, doubt and malice was my teenage sister. Surprisingly, she survived adolescence.)

I have no basis to know how these accomplished lawyers compare with industry standards, but this week they did not seem to measure up to the witness's ability to rise above the implied insults and step elegantly over any trip-wires.

Mr. Mitchell's first attempt to bolster his case was by selecting a footnote from Mr. Proctor's severed expert report (now Exhibit 1238), which was a document written by a man who until recently was a frequent visitor to this trial, Byron Rogers. His name does not appear on this document, "Policy Analysis of Tobacco Product Promotional Activity Restrictions", (Exhibit 990.26R, under reserve) because it is not customary for public servants to be named as primary authors of policy documents that are worked and reworked through government minsitries.  Nonetheless, Mr. Mitchell tried to make it sound like Mr. Proctor was a faulty researcher for not having identified the author or known the progeny of the document.

The contrast in the patient tone of Mr. Proctor's answers to the accusatory tone of the questions again served to strengthen the impression that the witness was a man you could put confidence in. He explained why the answer to Mr. Mitchell's question was irrelevant to the point in his report. (And he took advantage of the moment to provide a further short lesson on the role that industry sponsorship of cultural and sporting events played in undermining restrictions on traditional advertising.)

Mr. Mitchell tried a second time, this time with the American Historical Society's Statement on Standards of Professional Conduct. Mr. Proctor is a member of this society, and said he subscribes to its values - including those that Mr. Mitchell tried to imply were missing in his testimony and report. Mr. Mitchell implied that the witness was not respectful of "divergent points of view" and was too loose with use of material written by others for someone in a profession that practices zero tolerance of plagiarism. Mr. Proctor's calm answers made the questions sound more juvenile than they probably were.

Mr. Mitchell, who only yesterday had "two to three hours" of questions for the witness, announced after not much more time than a smoke-break that he was finished.

Likewise, Ms. Glendenning threw in the towel. Yesterday she had said that her questions for Mr. Proctor would extend beyond this week. "There are things that have come up in the evidence this morning that we're going to need some time to deal with, and so even if we get started tomorrow, we will not be finished [Thursday], in my view."  This morning she announced she had no questions for this witness.

A cross examination that had once been scheduled to last four days was over in about 3 hours. On reflection the defence team may think it was at least 2 hours too long!

Justice Brian Riordan's Crucial Question

Before allowing Bruce Johnston the opportunity to ask his witness further questions, Justice Riordan indicated he wished to speak with the witness. He spoke gingerly as he lead up to his question:  'It has come to my mind that much for the same reasons that you criticize the three expert, from my point of view as the adjudicator in this process, there is an omission in your testimony. I don’t fault you for that. I think it is a function of the questions you were asked to respond to." 

He spoke shortly about the discussion over the past days about survey results and then, unusually, began to read from his computer screen. This is his first question to a witness that has been so obviously prepared in advance. "In the decision I will have to make it would be helpful to have your view as American historiographer at what date if any can it be said that the average American knew or can reasonable be expected to know that the smoking of cigarettes caused [the four lung diseases that are the subject of one of the two class action suits]." He elaborated that he wanted to know "when the average American knew or reasonably should have known. "

Robert Proctor qualified some limitations to his answer and then provided his view that in the 70s and 80s, survey results show that the average American was "more likely than not" to answer a question that they knew about such harms. "There is a scientific consensus in the 50s, an administrative consensus in the 60s .... the third stage is a journalistic or popular consensus." He said he could not be more precise than the "70s and definitely the 80s."

Good-bye, Mr. Proctor

There was a good feeling on the plaintiffs' side of the room as Robert Proctor stepped down from the stand shortly after 10:00 a.m.  Lawyers from various government and class action suits mingled in the corridor afterwards and talked shop. For their common interests, it had been an interesting few days watching what one lawyer described as "the plaintiffs playing chess, while the defence played checkers."

There was no one but us chickens left to watch the afternoon session. A few more exhibits were put on the record (concerning the response of the industry to Health Canada's 1995 report on nicotine levels and Export A advertising). The witness schedule was given a few tweaks. Imperial Tobacco's attempt to lay a subpoena for documents on the next witness, Jeffrey Wigand, was slapped down. 

Perhaps the most noteworthy event of the afternoon was Justice Riordan putting the industry on notice that they were to present their schedule for defence by December 12th.

The trial will adjourn until December 10th. When it comes back, Jeffrey Wigand will testify for the first half of the week, after which motions to allow documents to be filed under Article 2870 will be heard.