Thursday, 7 February 2013

Day 110: A volley of questions to André Castonguay

Today was the first time that the tobacco companies have mounted an extended cross examination of a plaintiff's expert witness in the Montreal tobacco trials.

In the steady flow of questions that Imperial Tobacco's lawyer, Suzanne Côté, directed to chemist André Castonguay over the long day there may be hints about how her team will manage their defense once their turn comes to present their case later this spring.

Two things seemed clear. One is that Justice Riordan's wishes don't weigh very heavily in their tactical decisions. Yesterday, in return for not insisting that they move into their cross examination mid-afternoon, the judge had unmistakeably signalled that he wanted the examination of this witness to be finished today. But from the moment that Imperial Tobacco's team moved in this morning with a mover's dolly of boxes and plunked five thick binders down on the witness's desk, it was clear that they were there for the duration - and that if five documents could do the work of two, so be it.

The second message was that the removal of the federal government from their case has not altered their intention to deflect responsibility to the government for any wrong doing in the way that cigarettes were made and sold.

The long shadow of the 'action in warranty' against the federal government.

It has been almost three months since the federal government was released from this case, after the Quebec Court of Appeal disagreed with Justice Riordan's decision to keep them as co-defendants because they had dragged their heels and not made a more timely exit.

Over the four years leading up to their liberation on November 14, the federal government was obliged to provide the industry with hundreds of thousands of documents from its records.

In the normal way of things, the plaintiffs would have also received copies of these documents and would have integrated them into their databank of materials received from all three tobacco companies and, just recently, the CTMC. For unexplained reasons, this never happened. As a result, when the federal government got its discharge papers the plaintiffs found themselves in the awkward position of the industry building its case on documents the plaintiffs had no access to.

I had been puzzled about how the plaintiffs could be entitled to receive these documents after the federal government had no official role in the case. It is clear from  reports such as that written by industry witness, Robert J. Perrins, that these records included "advice to the Minister" and other files that cannot normally be shared with third parties or the public. (Believe me, I've tried!).

This morning the court learned of the creative legal solution that had been found to allow the entire record to be shared with the plaintiffs. The Justice Canada lawyer who had been responsible for the case, Nathalie Drouin, arrived at court with both a CD and a subpoena in her hand. The CD contained electronic copies of 650,000 documents spanning  3,400,000 pages of material.

It was the subpoena served by the plaintiffs that had brought Ms. Drouin to court and that proved to be they key for the materials to be handed over. She brought with her a draft of the directions she wanted Justice Riordan to issue that would require the government to release the material and would require the plaintiffs to treat it with the usual confidentiality. Justice Riordan obligingly read out these negotiated "orders". All that was missing was the gift-wrapping.

The job done, Natalie Drouin and her colleagues left the room. Had they stayed, they would have heard how important these government records seem to be to Imperial Tobacco's defense.

Suzanne Côté's rapid-fire cross-examination of André Castonguay.

Suzanne Côté
For the most part, the industry legal teams switch-up their bench, and make sure that the lawyers directing the play have the same mother tongue as the witness' testimony. As most of the former employees who have been witnesses have chosen to speak in English (even if their mother tongue is French), this has meant that the Ontario-based lawyers have usually lead Imperial Tobacco's defense in this case.

The plaintiff's expert witnesses from Quebec have naturally chosen to testify in French, and so the Quebec lawyers are front and centre at this part of the trial. Suzanne Côté today moved to the driver's seat, a place she frequently holds during Imperial Tobacco's legal arguments, but less often for witness testimony.

Although cordial and professionally polite, her ferocious energy, stamina and obvious smarts make her a little intimidating to watch. I am sure it is even harder to stand three feet away from this energy-centre. I don't think questions could have been been asked any more quickly, and I doubt that even a teenage girl could have out-talked her today.

As she kept up her rat-a-tat-tat of questions, Ms. Côté barely stopped for a sip of water or to shift her weight on her (stiletto) heels. She did not need to pause to think and she segued smoothly from answer to  question, document to document, topic to topic.

André Castonguay must have felt like he was trapped in a batting cage with a pitching machine set on "fast". There was indeed a machine like quality to her questions in that they were dispassionate and without the animosity or false-warmth that is sometimes shown by her colleagues.

Everyone in the room - including the plaintiff lawyers -- seemed to sit back and watch, as though they knew there was no stopping her. A couple of times Bruce Johnston drew Justice Riordan's attention to the fact that her questions were trespassing over the boundaries that were repeatedly set for their side (i.e. questions involving events after 2000, or events in other jurisdictions). Justice Riordan brushed these aside, but with a bearing that suggested he just wanted the day to be over, and that he felt the best course of action was to ride it out. He took few notes, and asked only one or two clarifying questions of his own.

Trying to blur the lines between directing minds and regulating bodies

André Castonguay's report (Exhibit 1385 with an English translation) is a comprehensive review of many chemical-related aspects of cigarettes over many decades. In it, he contrasts the state of knowledge of independent scientists or health authorities with the scientific knowledge within the industry. Because he report was written in 2005, before the Canadian companies disclosed any documents to the plaintiffs, it relies on documents pulled from Guildford or from the Legacy site.

Very little of Mr. Castonguay's report was addressed by Ms. Côté's questions. Instead, she used his explanation of smoking machines, the sorry chapter of light cigarettes and other portions of his report as spring boards to flash before the court dozens of documents, many of which were pulled from the still-secret trove of government documents.

One theme of her questions was the suggestion that the company was on the right side of history on some scientific errors, and that its enlightened view was ignored or pushed aside by health authorities. For example:
* She showed almost illegible copies of news stories from the Ottawa Citizen and London Free Press in the early 1960s where Imperial Tobacco President, JM Keith, said that smoking machines were unreliable as they did not reflect the way cigarettes were actually smoked. "There are too many subjective factors in the smoking of any product, Mr. Keith said, citing the speed at which a person smokes, how much he smokes and the number of puffs." (London Free Press)
* She displayed a book on "Smoking Behaviour" published by BAT Scientist, in which SJ Green concludes  "[I]t is doubly unfortunate that machine smoking under fairly arbitrary conditions, probably different from those of any known human smoker, should be so often and so wrongly regarded as equivalent to human smoking.”

This theme was repeated in a series of questions about some of the more notorious chemicals found in cigarette smoke, tobacco specific nitrosamines. She showed documents that suggested that (a) Canadian companies had lower levels of these compounds than U.S. blends, (b) levels were further reduced in the 2000s as a result of industry changes to curing practices, (c) the federal government refused to endorse these changes when asked to and (d) IARC didn't even include these chemicals on the list of "known human carcinogens" until 2007.

Another series of government documents seemed designed to establish that the federal government was not "ignorant" when it recommended low-tar cigarettes, but that it had pushed for the reduction of tar in a considered, science-based, and consistent fashion. Press release after press release from the 1970s was flashed quickly across the screens.

In a similar fashion, recommendations by the Canadian government and some independent scientists to reduce the number of cigarettes smoked were the basis of questions pressing Dr. Castonguay to acknowledge that any industry suggestion to "smoke in moderation" was supported by science and government.

Dr. Castonguay didn't have too much choice but to keep his replies short. He resisted her attempts to blur the line between the quantity of a smoke "yields" to a machine and the actual "delivery" to a smoker. He firmly maintained the distinction between toxicological prudence in reducing exposure to harmful substances and epidemiological evidence that doing so will result in measurable benefit. Often his answers merely served to validate her claims about the historic existence of views that support her company's defense.

By the end of the day, Ms. Côté's work seemed far from completed and Rothmans, Benson and Hedges was still in queue with a few hours of questions, as well as JTI-Macdonald's "few".  Mr. Castonguay was asked to return next Wednesday.

The road ahead

Only somewhat bleary-eyed after the day's romp through dozens of documents, none of which were put into evidence, Justice Riordan opened discussion on the task ahead of him next week when he will be asked to rule on whether the industry should be allowed to propose some "pre-defense" motions. (Debate on the subject is scheduled for next Thursday, and written arguments were to have been circulated among the parties last week).

He tried without success to get the plaintiffs to signal how they would respond to the industry's arguments that pre-defense motions should be receivable (apparently the written pleadings offer some precedents).  Mr. Lespérance's response was focused more on the can of worms that would be opened if such motions were discussed, such as his own team's interest in returning to a decision to strike out some of the defense claims that was put on ice earlier in the process.

It would appear that next Thursday, this case will come to another fork in the road!

The next medical expert witness to appear in this trial, Dr. Louis Guertin, will testify on Monday and Tuesday. On Wednesday, Dr. Castonguay will return and former ITL marketer, Wayne Knox, may be called as a fact witness.