Thursday, 24 January 2013

Day 106: He took a licking and kept on ticking

When the Montreal tobacco trial resumed Thursday morning for the last day of Richard Pollay's testimony, it was Doug Mitchell's turn to cross-examine this expert witness on marketing. It was not the first time this counsel for JTI-Macdonald had done so.

Mitchell vs. Pollay - round 2

Richard Pollay was an expert witness for the federal government during its defense of the 1988 Tobacco Products Control Act and the 1997 Tobacco Act. (The first law was not deemed constitutional by either the first judge who heard the case or the Supreme Court of Canada, the second was approved by both).

Mr. Pollay's expert report in this trial (Exhibit 1381) is very similar to the one he presented in 2000 and for good reason. The Tobacco Act trial took place shortly after this current lawsuit had been filed, which means that the documents that Mr. Pollay reviewed for one case could be expected to be essentially the same as in the second. The "cut off" period being applied to evidence on this trial is about 2000.

It was Doug Mitchell who managed RJR/JTI-Macdonald's offence during the Tobacco Act trial, who tried to prevent Mr. Pollay from being qualified to testify and who tried to damage his testimony during cross-examination.  Justice Denis, who conducted the trial, did not seem to have found Mr. Mitchell very persuasive. (Justice Denis said very nice things about Mr. Pollay in his final ruling.)

Undeterred, Mr. Mitchell took the same approach as he had eleven years ago, even asking many identical questions. (Why was the "Youth Target Study" a described as a major study by RJR? How many documents did you see from RJR-Macdonald showing research on people under 18 years of age?  Do you know what the market share for Vantage cigarettes was? etc.)  It will be some months before Justice Riordan will rule on this case and allow us to know whether the same challenge on essentially the same opinion will yield different results.

The pugilism of cross-examination

There must be a code-book of court-room tactics that gives names to the various moves that are made by lawyers against witnesses from their opponents. I hope to find one so that I can better describe this stage of the trial, when lawyers seek to diminish the impact of their opponent's expert witnesses.

As a spectator, I felt like I was watching a combat sport - but a different one than Mr. Potter's cross-examination yesterday. It was as though we have moved from a slow-paced wrestling (grappling of ideas, attempts at a takedown) to a fast-paced boxing match. Mr. Mitchell kept a steady round of jabbing questions, hitting at Mr. Pollay and his report from several angles, often on the same point.

Well, not a boxing match, exactly, as Mr. Mitchell was the only one wearing gloves. Because Mr. Pollay could only answer the hostile questions put to him, he served more as a punching bag than an opponent.

Unlike Mr. Potter, who had used open-ended questions which allowed Mr. Pollay to provide content, Mr. Mitchell favoured questions for which the answer would be a simple (and damaging) "yes" or "no".Like a good punching bag, Mr. Pollay took the beating without showing much impact on his professional standing. Nonetheless, it must have taken a personal toll, and he looked tired long before the end of the day. This is not a job for the feint of heart.

There was a lot of adrenaline in the room, and the whiff of middle-aged testosterone. More than 20 lawyers leaned forward in their seats as they watched intensely. Only Judge Riordan leaned back in his chair.

Mr. Mitchell's attempt to discredit

The purpose of Mr. Mitchell's questions today seemed aimed at establishing that Mr. Pollay a) doesn't know very much about tobacco companies or marketing b) was biased in his selection of documents, c) was lazy in reviewing the documents produced during this trial, d) mischaracterized the documents he cited, e) lacked scholarship or intellectual integrity.

He quizzed Mr. Pollay on his general knowledge of the corporate history of JTI-Macdonald, and probed where there were holes in his knowledge. He listed the name of several corporate officials who had appeared during this trial, and asked Mr. Pollay to identify their positions in the company.

He pounced on any hesitations or qualifiers as indications of dishonesty or ignorance. For example, when Mr. Pollay began an answer about the way the Print Measurement Bureau measured subscribers by saying "I believe..." Mr. Mitchell sneered "Are you speculating?"

Mr. Pollay's contribution to the public health understanding of tobacco marketing has been to analyze and articulate the patterns of activity of tobacco industry marketing and to distill the data from hundreds (or thousands) of marketing plans into their core characteristics. To illustrate these general themes (i.e. "friendly famliarity"), he cites short passages from industry documents which capture the idea. Mr. Mitchell pounced on several of these references, suggesting that the passages chosen were not properly cited or that they did not support Mr. Pollay's conclusions.

Mr. Pollay did not pass the specific knowledge questions, and it was clear that in the decade since he has written the report the details of some of the documents he had cited had faded from memory. He declined to give answers when he was not absolutely certain (such as the exact date certain laws came into force). He did so at the risk of making his memory look less sharp than the steel-trap minds of these legal teams.

He did not, however, concede any of his conclusions or fail to defend them when the questions allowed him to do so. He defended his conclusions and when given the opportunity added more information.

Imperial Tobacco's cross-examination

ITL counsel
Craig Lockwood
Mr. Craig Lockwood belongs to the next generation of tobacco industry lawyers, but he does not look like a John Grisham-style corporate lawyer. He has instead the look of someone who has been (and is) expected "to go far" and who enjoys an intellectual challenge. There may be lawyers in this case who push the decorum envelope, but Mr. Lockwood is not among them.

When his turn to cross-examine Mr. Pollay came after the lunch break, he showed that he did not need a sneering tone of voice or rhetorical devices to land some pretty hard questions on the witness.

He followed the same path that had been set by Mr. Mitchell in pointing out the work not done by the witness. By illustrating the documents not reviewed or cited in the report he tried to leave the impression that Mr. Pollay had been unduly cherry picking. He also returned to the theme of Mr. Potter's questions yesterday -- that the activities of his company were no different than those of other manufacturers, who similarly target young markets.

In the afternoon, Mr. Pollay seemed better prepared for these questions. If the real interest of marketing was for smoker reassurance and not for switching, why did the term "reassurance" appear so infrequently in the documents from Imperial Tobacco? And why is the term "pre-quitter" used only in a few places? If you are going to count references, then you should also use “concerned smokers," and "dissonant smokers", Mr. Pollay explained.

The plaintiff's response

The plaintiff lawyers hardly blinked as they watched their witness and the judge carefully over the day. Bruce Johnston intervened on very few occasions, and sent no signal that he thought his witness needed protection, no matter how tough the pounding.

When his turn came to follow-up on the questions from the defense, he focused on a small number of issues. He pointed out that there were 30 million pages of documents that had been produced by the defendants. ("That's an awesome number," said Mr. Pollay, admitting that he had not looked at them all).

Mr. Johnston used his questions to remind the court that the reason that there were no records of targeting young smokers at RJR/JTI-Macdonald was because the orders had come down to destroy any such evidence (Exhibit 656) and that Rothman's analysis of competitor activities had concluded that "RJR generated many studies and advertising campaigns focusing on starters i. e. 12-16 year olds." (Exhibit 762)

He also followed up on one of the few topics where Justice Riordan had shown interest (for the most part, the judge did not take notes today).

"You were asked whether you had studied the question of whether consumers had been misled. Were you asked to answer that question?"
"No, I was not."

"In your opinion as an expert in marketing, were the marketing strategies as conceived and implemented misleading ?"
"Yes, I believe they were misleading by offering reassurances and by their failure to provide information that would have informed consumers."

At about 3:30, Mr. Pollay was thanked by Justice Riordan for his efforts and his "bravery" in facing the Montreal winter, and left the courtroom.

The empty federal chair

Each day this week there has been a reminder of the impact on this trial of the release of the federal government. Today's came in the form of a misrepresentation (as I understand it) of events during the trial of the Tobacco Act.

Mr. Pollay had referred in his expert report to a document from Imperial Tobacco showing that the company included "starters" in its definition of "switchers" had not been produced by Imperial Tobacco.  Mr. Lockwood produced a document from that trial showing that, indeed, the "Switching Analysis" in question had been filed as an exhibit in that trial. (It was exhibit D-179 in that case, and in this trial is Exhibit 989.32). On face value, it looked like Mr. Pollay had made a mistake.

What Mr. Lockwood did not show was the trial record which records the federal government - in the form of Mr. Maurice Regnier - challenging Imperial Tobacco for not including this document among those shared during discovery. The document had been found on the Brown and Williamson website. The document was only forked over after this specific request had been made.

In other words, Mr. Pollay was right in that the report had not been 'produced' during the initial discovery (although it was later 'produced' as an exhibit). But Mr. Regnier, who would have remembered having to hound Imperial Tobacco for the document was not on site to make this point. As a result, Mr. Lockwood was allowed to present a half-truth to the court that has the effect of a mis-truth, and which was intended to diminish the credibility of an important witness.

In other news

Charlottetown's The Guardian reports that UK-based tobacco companies Carreras-Rothmans and BAT have asked to have the provincial suit filed against them dismissed.

The Montreal trial does not sit next week. Two expert witnesses for the plaintiffs will appear the following week -- pneumologist Alain Desjardins on February 4 and 5, and pharmacologist André Castonguay on February 6 and 7.