Wednesday, 6 March 2013

Day 121: A natural experiment in courtroom tactics

There was a full plate of issues waiting when Justice Riordan opened today's session at the Montreal tobacco trials. The plaintiffs are dotting the i's and crossing the t's on the evidence they have spent almost a year putting on the record. At the same time, the defendants are trying to better position themselves on the starting blocks for their defence which will start no sooner than they can help.

Courtroom observers don't witness the issues that are settled without Justice Riordan's assistance. But in this trial, I get the impression that there are few issues that are not so contentious as to require his hands-on management. Today there were many that only he could settle -- too many for a short blog and just enough for an interesting and dynamic day in court.  More details tomorrow.

Warning: More expert witnessess!

Several weeks ago, the defendants suggested that they would be seeking authority for additional witnesses to provide expert testimony about health warnings. Today was the day that this request was formally made.

Suzanne Côté led off  by presenting legal reasons why this should be allowed. She took little time before reminding Justice Riordan of his reflections last September 12 when allowing CTMC documents to be subpoenaed. "Let's be realistic. We are looking at a case where the potential stakes exceed $20 billion dollars. It is therefore essential that the Court receive all evidence that is pertinent and available, whether it favours the suit or opposes it." (my translation).

After he had his views read back to him, Justice Riordan smiled and asked for the plaintiff's preliminary reaction before hearing further arguments. He was told that their side had no philosophical problems with the request, but were concerned about any potential delay.

Clearly telegraphing that he was open to the suggestion for new witness, Justice Riordan heard Simon Potter explain the rationale behind the request. The reason given was that the plaintiffs case "had evolved" and was putting more emphasis on the type of warnings than simply the fact of whether warnings were there.

"What we have seen over the past months of trial is that it wasn’t one warning that was missing, but scores and scores of different warnings... The suggestion is that the government mandated warning was not enough and that it should have been accompanied by a cacophony of other warnings."  

Simon Potter explained that this "cacaphony" had motivated the defence to seek expertise on the following questions:
- "would different warnings have had any real effect on the market place"
-  "would a number of different warnings over time have had any beneficial effect on consumers’ assessment of the risk they were deciding to take"
-  "what is the science of warnings."

JTI-Macdonald's lawyer, Francois Grondin, was the third on the match, and he was the one fingered for Justice Riordan's hard questions about the request. "Is it only in the past month that the companies have recognized warnings as an important element?" the judge asked in a clearly doubting tone. "Why didn’t you anticipate this need in the beginning?"

Mr. Grondin is the boy-scout on the defense team, and squirms a bit when giving flimsy answers. "We need to eliminate the distortion that was put in the case," he tried to explain, but offered no further details about the development of this request.

André Lespérance, however, hinted at another reason the defendants might have changed their plans. The request for new warnings witnesses came after Robert Proctor had trashed the approach taken by the historians hired to argue that there was high public public knowledge of the risks of smoking.  "Will they retire their other experts?" he suggested.

Before long, Justice Riordan gave the industry permission to file two additional reports on warnings, and gave them the deadline of Tuesday, June 25th to do so. "We want them to have the [St. Jean-Baptiste long] weekend to work on them," he teased.

Be careful how you answer the phone!

Quebecers might want to be alert to the fact that Imperial Tobacco has a survey "in the works" that will look at "whether any of the conduct of the defendants had any impact on any class member."

After a long silence on the topic, Justice Riordan spontaneously raised the issue of whether Imperial Tobacco still intended to conduct a public survey for the trial. He forced Deborah Glendinning to answer his question  "Do you wish to have authorization and why?" 

"We had hoped to have it underway already," she explained, but it was "delayed due to scheduling and other issues. At this point the earliest I think we could probably have it completed would be hopefully by the summer break." 

While my mind was cynically wondering how many surveys were underway in order to get the results they wanted, Justice Riordan asked a more basic question. "You are doing an actual survey? In 2013? About what went on in 1950?"

No specifics were given. Ms. Glendinning said only "I would rather not get in the details of what we are investigating – it is going to be a survey of people who would be in the class and would have something to say."

Justice Riordan referred to his previous decision to allow such a survey, but ordered that it also be filed no later than June 25th.

Cutting the pie

Despite repeated requests from Justice Riordan for the companies to produce a joint statement of their respective market shares during the years relevant to this trial, the companies have failed to do so.

So it was the other side that got the ball rolling today as their young team-member, Gabrielle Gagné, presented her research effort to assess market share across the three companies dating back to 1956. On an excel sheet she had identified varying estimates of the (national) market share, linking it to the relevant document source. When there were different estimates for the same year, she had calculated an average figure.

Justice Riordan seemed suitably impressed with this report, which is now Exhibit 1437.  His opinion was not shared by Imperial Tobacco, however. Craig Lockwood complained that the data was for national sales, and did not necessarily reflect the situation in Quebec. He was also concerned that it was based on estimates, and not actual sales. "It doesn't tell you what you need to know."

This was Justice Riordan's cue to remind the companies that the ball was in their court to provide different numbers. "If you can come with an agreement among you, then I would be hard pressed not to accept that. In the absence of that ability then I would guess that each company would have its own version... I want evidence on this point."

Taking it up a level

There are two main categories of exhibit evidence in this trial.

The higher level is given to documents that were properly introduced through a witness who appeared at the trial or which were ruled on favourably under the provisions of Article 2870 of the procedural code.

The lower level is given to those documents that were introduced without a witness and by virtue of Justice Riordan's ruling on May 2, 2012. These "May 2nd documents" are designated with a "2M" code. They are  papers that were provided by the defendants during the pre-trial exchange of material but for whom the author or recipient was not available to testify about them.

Because the second category of documents carry less weight in the trial, the plaintiffs are trying to promote important or useful documents "2M" exhibits to the higher category. To do this they can either reach an agreement with the defendant company involved, or they can subpoena a witness to testify whether he or she received or wrote the document in question.

Today both approaches were used. This provided a natural experiment where the different strategies of the defense teams produced very different results.

Option 1: minimize witness time

Mr. Simon Potter has consistently tried to limit the appearance at this trial of former or current employees from Philip Morris International/Rothmans, Benson and Hedges and has on at least a few occasions reached agreements with the plaintiffs to achieve this goal.

Today he had agreed to allow a number of RBH documents to be put into evidence or to have the "2M" designation removed because doing so avoided Mr. Heffernan being called to testify.  "All these documents are the result of a deal really – there is no other word for it – a practical deal reached in order to avoid needless travel by Mr. Heffernan,"  explained Mr. Potter. 

His strategy resulted in several damaging documents gaining strengthened status, but no damaging testimony from Mr. Heffernan. (A list of new exhibits from RBH appears below).

Option 2: make no concessions

Unlike RBH,  BAT/Imperial Tobacco has not shown much interest in accommodating the introduction of documents through agreement. The result is that the plaintiffs must recall witnesses from that company in order promote "2m" documents to more powerful level of evidence.

André Lespérance suggested on Monday that this was a waste of time, but Imperial Tobacco's lawyers held firm. "We are not going to simply have the documents dumped into the record without them being put in context," Ms. Glendinning had said.

Former marketing vice president, Mr. Tony Kalhok, is the first witness to be recalled for this purpose. He came willingly (without a subpoena) and brought with him the same bonhomie shown when he first testified over 10 months ago.

It took very little time for Ms. Gabrielle Gagné to have Mr. Kalhok confirm that he was the recipient or author of dozen or so documents under discussion and for Justice Riordan to agree to remove the "2M" designation from these exhibits. (1015, 1026, 1029, 1035, 1039, 1044,  1045, 1051, 1056, 1063, 1065, 1073, 1074, 989.3).

It was when Imperial Tobacco's lawyer began to put these documents "in context" that the comedy began.

Mr. Lockwood began by fishing for Mr. Kalhok to say that a research report (Exhibit 989.3) would have had little impact. "Did this exploratory research involve anything that went to market?" asked.

He didn't get the answer he wanted. "If we ran Matinée advertising afterwords, it probably did. We did not do exploratory research just for the point of doing exploratory research," said Mr. Kalhok proudly.

Mr. Lockwood tried again. "Would you say that Imperial Tobacco did a significant amount of research that did not result in a market product?"  Again, Mr. Kalhok refuted his point. "Not at this time."

The lawyer gave it a third try. He pointed to the "caution to the reader" that expressed the limitations of focus-group research and invited Mr. Kalhok to "comment on the accuracy" of the report.

Instead of picking up on the cue, Mr. Kalhok tried to explain that focus group research always came with a disclaimer "so people wouldn’t take it literally." When the question was repeated, the witness looked confused. "Is this a trick question?" he asked.

The smiles on the faces of the judge and many lawyers may have given a hint that there was an underlying trick, but in any case, Mr. Kalhok put to rest any idea that he might not see the research as valid. "Paul Crocker was very reliable which is why we used him."

The fun continued. A similar opportunity for him to cast doubt on research conclusions became a shout-out to a former colleague. "Jim Uniacke was a thorough person, so they are probably reliable."

Not surprisingly, Mr. Lockwood soon decided he had no further questions. Justice Riordan thanked the affable witness, and recalled Mr. Kalhok's scheduling concerns of a year ago by wishing him "good curling." (In a trial this long, it's good to know the judge has a great memory.)

Imperial Tobacco's strategy resulted in several damaging documents gaining status, and also some very unhelpful testimony. Today, at least, Mr. Potter made the better call.

(Mr. Kalhok is currently scheduled to testify for 3 days as a witness for Imperial Tobacco. I think after today's answers might have bought himself three more leisure days next fall!)

New Exhibits 

Exhibits newly introduced today (which, to confuse the story, also include some new "2M" records) include:
- a survey questionnaire aimed at people as young as 15 (Exhibit 1439),
- a 1981 marketing strategy by Rothmans' South African directors (Exhibit 1440),
- a 1988 product design meeting which reveals that burley tobacco was used in some blends, and that CO levels were not honestly reported on packages (Exhibit 1442),
- a 1987 memo that shows that RBH felt Imperial Tobacco was understating the actual tar levels on its brands and that nicotine levels were being increased (Exhibit 1443),
- a top-level plan from 1982 to help the company reverse its dwindling market (Exhibit 1444),
-a document from a decade later on the companies "slide from hell" (Exhibit 1445),
- a market review from 1969 (Exhibit 1446),
- a business plan from 1994 (Exhibit 1447).

Tomorrow  there will be arguments about the use of Article 2870 to allow more documents to be entered as evidence.