Wednesday, 16 January 2013

Day 101: Breaking the Envelope

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

Wednesday's session of the Montreal tobacco trials opened with a continued review of whether historic documents fit the criteria established by Justice Riordan for admission under "Article 2870."

It closed, however, on a note of suspense, after Justice Riordan gave the plaintiffs overnight to consider how they would change their approach to their second expert witness, Christian Bourque.

The morning - more "2870" discussions

Nancy Roberts ignored Justice Riordan's advice - "you don't have to contest everything,"  and on behalf of Imperial Tobacco continued to energetically oppose each of the documents the plaintiffs are seeking to have admitted under the provisions of Quebec Civil Code that allow for documents to be put into evidence without a witness. So too did her colleagues who represent Rothmans, Benson and Hedges and JTI-Macdonald.

Yesterday, the lawyers had set a slow pace, but today Justice Riordan signalled his impatience. He was particularly severe when it appeared that his ruling of last week was not reflected in the arguments he was receiving.

You read my ruling," he admonished plaintiff lawyer Pierre Boivin, who was filling in for André Lespérance and trying to put in evidence a document showing how minutes of a 1967 research meeting in Montreal were shaped through revisions. "Is it a draft or not?" He was unmoved by Mr. Trudel's explanation that their team wanted to demonstrate differences between two versions of a meeting record. "I won't accept it on the basis it is a draft."

The documents under review today came from the records of the US and UK tobacco companies that are now on the Legacy website or at BAT's Guildford depository. It was clear that the defendant lawyers did not want these documents on the record, and that their intention was to keep the corporate veil between the Canadian operations and their parent companies unpierced. They vigorously argued that any documents from the Legacy site that traced the development of knowledge within the U.S. and British parent companies should be considered irrelevant when there was no evidence that the information had been shared with the local operations.

If, when Justice Riordan makes his decision on these documents, he agrees with their arguments it will further underline the importance of directly involving the parent companies, as the provincial lawsuits have been able to do.

The afternoon - Mr. Christian Bourque

Christian Bourque is a familiar figure to news audiences in Quebec, as he is the public face of Quebec's big polling firm, Léger Marketing. Although political and social polling is less than a fifth of his firms' work, he explained today, it is what most people associate him with. The company's real bread-and-butter comes from their extensive market research for commercial firms.

The plaintiffs faced few difficulties in having Mr. Bourque qualified as an expert in polling and market research. Unlike the situation with Mr. Proctor, his qualifications were readily acknowledged by the industry lawyers. (It may have helped that he has previously been qualified as an expert witness in Quebec courts, and has defended corporations against consumers class actions.)

Nor did the defendants' lawyers express any concerns about the 38-page expert report prepared by Mr. Bourque and two associates at Léger Marketing. (Well, at least not yet)

When the objections came, they were focused on the questions that Mr. André Lespérance wanted to put to his witness. It was Justice Riordan's sympathy to these objections that has put a spanner in the plaintiff's plans.

Mr. Bourque's Expert Report

The mandate given to Léger Marketing by the plaintiffs' firms (by my reading and translation) was to look at the market research reports provided under discovery and to 'provide an opinion on the significance and scope of studies intended to measure perceptions of tobacco products.' Specifically, their opinion was sought on what the companies knew about consumers' perceptions/knowledge about the risks associated with smoking and what the purpose of gathering such information might be.

The 'read-in' rule means that Mr. Bourque was not asked to present his report to the court today. Most of the lawyers in the room would have reviewed it thoroughly in the 18 months since it was filed. So too would the industry's own expert witnesses engaged to offer very different views of public knowledge on smoking, and to criticize Mr. Bourque's report. Today, these witnesses sat with their clients. Claire Durand, a sociologist at the University of Montreal sat with members of ITL's counsel, and Raymond Duch, an ex-pat Canadian currently at Oxford University, sat with JTI-Macdonald's lawyers.

To prepare his report, Mr. Bourque's team went through the reams of polling data gathered (mostly) by Imperial Tobacco over several decades. As a preface to their findings, they caution readers that when it comes to polling the line between "perceptions" and "knowledge" is very thin. They report that from the surveys used by the tobacco companies, it was often not clear whether it is perception or knowledge that was being measured.

They conclude that the industry's studies showed that a 'good number' of people did not perceive a danger with tobacco products. Between 1971 and 1990, those who felt that there were conditions under which smoking was not dangerous fell, but never to zero (it went from 52% to 20%). Their team found no survey results showing near-universal knowledge that smoking was dangerous for everyone.

Nor did they find that the specifics of health dangers were widely known. In 1988, only 56% of smokers associated heart attacks with smoking. Smokers did not identify nicotine, tar or gases in cigarette smoke as a source of risk. Many smokers did, however, think some tobacco products (those with filters or light cigarettes) could be smoked in greater quantities without causing problems.

Mr. Bourque concluded that the companies conducted their research to measure the impact of anti-smoking efforts or other external events. The companies were assessing the impact of perceptions of risk on smokers behaviour and their decision to quit smoking. He felt it was logical to conclude this was not only to predict future market demand but also to adjust marketing strategies.

In 1972, a bare majority of smokers thought
smoking was dangerous for anyone

Mr. Lespérance's failed efforts to get additional information about Quebec smokers

The industry surveys often provided regional or demographic break down of data, but Mr. Bourque did not include in his report the separate analysis for Quebecers that this data would have permitted. By contrast, the defendants' expert witness, Mr. Duch, has prepared a Quebec-specific analysis using polling sources like Gallup to suggest a much higher level of knowledge about the harms of smoking.

Mr. Lespérance tried to offer Mr. Bourque the opportunity to provide shed light on the situation in Quebec. He drew the expert's attention to the 1978 results of  ITL's survey (Exhibit 987.12, p. 403/39), which showed that Francophone smokers were half as likely to think that you could not smoke more than 2 cigarettes without causing damage (16% vs. 31%).

Mr. Lespérance's line of questioning drew a sharp rebuke from the bench. "You asked him to add the numbers, but we can all do it -- and at much less expense," said Justice Riordan. "You are pushing the envelope."

A few similar questions later, and Justice Riordan put his foot down. Mr. Lespérance was not to ask questions that went beyond the expert's mandate or report. "You have a choice," the judge said. "Either you can ask questions that highlight the report as it is, or you amend it."  

Mr. Lespérance tried to convince the judge that it was more appropriate to view this report as a form of counterproof to the tobacco companies main line of defence, which is that 'everyone knew' about the dangers of smoking. He appealed to the need for some manoeuvering room, but Justice Riordan didn't agree. "You have broken the envelope. That is my decision."  

An hour before regular quitting time, the session ended. Overnight the plaintiffs are to decide whether they will limit themselves to the report as written, or whether they will seek permission to have it amended.

With 6 more expert witnesses lined up to testify over the next 5 trial weeks. Justice Riordan's forceful response today has likely given them a lot to consider!

What happens tomorrow?  Either there will be more testimony from Mr. Christian Bourque, or there won't. You heard it here first.

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.