Wednesday, 13 February 2013

Day 113: Throw enough mud at the wall and some might stick

Those whose confidence in the legal system is not on a sure footing did well to stay away from Courtroom 17.09 at Montreal's Palais de Justice today. The continued cross examination of the plaintiff's expert witness in chemistry at the tobacco class action trial was not a pretty sight.

Don't get me wrong. I am sure that the women and men in black frocks at the front of the room were doing their job exactly the way it is expected of them -- but, like parliamentary question period or pig slaughtering, it's hard to watch without thinking there is something wrong with this picture.

For four and a half hours today, industry lawyers shovelled a large quantity of government documents, scientific publications, and other seemingly-credible material before the eyes of Justice Riordan. The speed with which they set their conveyor belt obscured all but selected passages, leaving the distinct (if erroneous) impression that the companies were part of a scientific consensus and were harmonious partners with government.

This material was (a) presented out of context, (b) in a way that told a story about a third party (the government) who is not in court and able to challenge the misrepresentation, (c) sprung on the other side as allowed during cross examination and (d) based on material that is secret from the rest of the world. Nonetheless, it all seemed to be an accepted part of the process and within the rules.

This is just the warm up act, I had to remind myself. Wait till their real defense starts!

"They also serve who only stand and wait."

Although only one gave evidence today, there were actually two witnesses scheduled. In addition to André Castonguay, a second witness on deck was former ITL marketer, Wayne Knox.

Mr. Knox was a member of the mid 1980s market research team that made Imperial Tobacco the envy of its competitors (see Exhibit 762). His colleague, Bob Bexon, has only testified at this trial through his writings, as he died a few years ago in a bicycling accident. Mr. Knox likely knows much that could shed light on this important period at the company. If so, we will have to wait until tomorrow to hear it.

Mr. Knox spent the day cooling his heels as he waited to testify, and was only told late in the afternoon that his services were not needed today. He seemed pretty gracious about the situation - it was he who quoted Milton. Although he comes from out of town, there are worse places to have to kill time than Old Montreal.

Another problem with the system! Like Milton, Justice is blind. In this case, she is seemingly unaware of the inconvenience caused to those who have no choice but to heed her call.

Throwing more documents at André Castonguay

After Mr. Castonguay was sworn in, Suzanne Côté quickly picked up where she had left off last Thursday. She plucked document after document from the half-dozen large binders sitting on her desk, and drilled down a fat list of questions.

Was the witness aware of the 1972 conclusion of the UK Scientific Liaison Committee that that cautioned that smokers could "without realising it, nullify any beneficial effects from change to lowe-tar yield cigarettes.”?  ...  Did he know that this was quoted in a letter from the Minister of Health, Marc Lalonde?  Did he know about this press release from the Minister? No? Well how about this other one? Or yet another?

It went on and on.

Unlike last week, Ms. Côté put these documents on the court record and said she would later do so with those previously presented. When they are available electronically they will have Exhibit numbers 2007, 2008, 2009, etc.

The price of any fuzzy thinking or indecision - let alone bone-headed decisions - within Health Canada and Agriculture Canada over the past five decades seems to be to allow the tobacco industry to create its own narrative around these events. The plaintiffs have had access to these 160,000 documents for only a week, and were in no position to counter this mischief.

Although Mr. Castonguay often seemed little more than a ship of convenience to get these documents to court, he was not spared challenges to his report, (Exhibit 1385 and an English translation).  Ms. Côté encouraged him to reconsider his conclusions regarding the industry's role in the sale of low-tar cigarettes, its failure to disclose its method of better measuring smoking behaviour, its failure to disclose experimental results on the mutagenicity of its products, etc.

From where I sat, André Castonguay seemed to withstand fairly well her attempts to rattle his confidence, to wear him down, and to trap him into admissions. But he could not protect himself from being in the awkward position of being forced to answer well crafted questions on 'surprise' material which was more often than not out of his experience and expertise.

Ms. Côté's questions took up the entire morning. She knew how long a rope she could take in her questions, and explored the distance it gave her thoroughly. At the outset of the day, Justice Riordan had weakly suggested that less might be more, but after sighing "if you insist," he accepted the situation.

It was only after lunchtime that the second cross-examination, by Doug Mitchell for JTI-Macdonald, began.

Mr. Mitchell trotted out some stinky old canards.  Isn't it true that there are carcinogens in all our foods - and that there is no safe level of exposure to sunlight? Doesn't every alcoholic beverage also contain carcinogens? Aren't there benefits to nicotine - and doesn't it  reduce the risk of Alzheimers or Parkinson's disease?  I think I was not the only one in the room taken aback by this approach.

By the time the plaintiff's were able to respond with questions of their own (the 're-direct'), there were dozens and dozens of rabbit holes to chase down. They ignored most of them, returning to a few key messages and some rebuttal to a couple of documents.

At the end of a long day, André Castonguay was thanked by the judge and sat down. I don't know how he felt, but I was worn out and disgruntled by just watching events.

Some decisions are made out of the room

Some of this trial takes place behind the doors of private communications between lawyers. A case in point is the discussion once-anticipated for tomorrow regarding the receivability of the industry's 'pre-defense' motions.

Justice Riordan had said he wanted to hear arguments on the matter, and had required the companies to circulate their justification in writing last week. The court record which holds those files is a little out of reach, so I don't know how persuasive that justification was.

But for whatever reason, it would seem that tomorrow's discussion on these points is no longer needed. The companies will be able to present a pre-defense motion, and it will be scheduled for discussion after the plaintiffs have finished their case (i.e. in April).

As for the other motion they wanted to put forward regarding the use of exhibits entered according to the May 2nd judgement, Justice Riordan firmly shut the door without hearing a discussion. He said he had returned to the subject as often as he intended to and that the companies could "raise it in your appeals" after his rulings.

Tomorrow, some procedural issues and the postponed testimony of Mr. Wayne Knox.