Friday, 8 March 2013

Day 122: Vaccinating key evidence against appeals.

Jacques LaRivière, the former head of communications for the Canadian Tobacco Manufacturers Council, had been scheduled for a repeat visit to the Montreal Tobacco trials Thursday, but it was not to be.  Apparently there was too much ground to cover for the half-day scheduled, and he is now expected to return in early April.

The entire sitting day was spent instead determining whether documents could be entered onto the trial record under the "2870" provisions of the Quebec Civil Code. (This is a mechanism by which statements made by witnesses can be admitted even if they do not testify.).

Justice Riordan has made two lengthy written previous rulings on such documents. On January 10 he ruled on 19 documents and on January 28 ruled on twice as many. In both rulings (the first in French, the second in English) he provided the reasons under which such evidence would be permitted.  Papers from dead people, or people who cannot be found after reasonable efforts have been made are in. Drafts are out.

The third request from the plaintiffs was for almost 300 documents, each of which required a separate determination. A lengthy written ruling on this request was  not in the cards, and today's assessment was made on the fly - - and under the pressures of time to get through the list.

I lost count of exactly how many documents received quick decisions today (I think about half the list was covered), and there were moments where quick decisions felt like snap decisions. It was not an ideal situation - not least for the judge whose assessment of each document was encumbered by occasionally hyperbolic arguments.

Justice Riordan's management of the file rarely engages an emotional tone, but today he resorted to snapping at Imperial Tobacco's counsel, Nancy Roberts, who refused to respond to his earlier directions to not make repetitive and lengthy objections and who also tried to weasel him into adding interpretive language to his earlier rulings. Some grumpiness was evident throughout the day - perhaps a sign of PMS (pissed-off magistrate syndrome).

It was not a fun task, and at the end of the day everyone looked like they had made a visit to a bad dentist.

Avoiding the stigma of "2M" 

Unlike the first set of documents, these records were not new to the trial. Most of them had already been accepted under Justice Riordan's pivotal May 2nd Judgement, in which he facilitated discovery documents being entered into evidence, even if the companies did not acknowledge their authenticity.

Documents that were entered into evidence in this way were marked ""2M". This not only reduces their power as evidence (the contents not proved!), but also makes them vulnerable should the appeal courts eventually strike down Justice Riordan's May 2nd ruling. If that happened, any decisions he made that were based on "2M" evidence might also be struck down.

Justice Riordan had previously acknowledged that the defendants could use the 2870 process to remove the "2M" designation from important evidence. In his January 10 he recalled the industry's position that the May 2nd ruling was improper, and that if they were "ultimately right" then these documents would be "excluded from the proof. The plaintiffs don't want to run that risk, and reasonably so." (My translation) During today's review he also reminded the companies that it was their actions that had put the plaintiffs in a situation where they had to protect themselves against a judgement from the Appeal Court on this issue.

Win some

Most of the documents submitted by the plaintiffs were accepted by Justice Riordan as evidence under the 2870 provisions. These include some documents that the companies are understandably reluctant to see given any additional evidentiary weight, such as:

* Bob Bexon's letter to his pollster on how to counter the influence of anti-smoking groups (Exhibit 990.15), and other memos written before this gentleman became president of the company
* The survey results conducted by Imperial Tobacco over many decades. These were the records that the company tried repeatedly (but failed) to have put under seal of confidentiality.
* Several documents written by RJR senior scientist, Frank Colby, regarding research in Canada, as well as documents written by RJR's scientist, Derek Crawford.

Lose some

There were a couple of documents that Justice Riordan refused to promote from the "2M" category, citing concerns that the material was not a final version of the record. Where the records were mixed, as when there was an attachment to a letter authored by a deceased employee, the file was occasionally split.

The most disappointing moment of the day came when Simon Potter challenged the relevance of a document written in 1958 by Rothman's colourful Patrick O'Neil-Dunne to his Australian counterpart.

Justice Riordan seems to give more credence to Simon Potter's diatribes than others in the courtroom, and the performance elements of this seasoned lawyer' objections seem to occasionally divert the judge from the disingenuity of their substance.

In this instance, Mr. Potter insisted that because the letter was written to an Australian it had no relevance to the case.  The plaintiff's lawyers seem to have dropped the ball in providing a quick reason why it should be accepted -- perhaps the fact that the document was in smeared text and in their second language made it difficult for them to immediately find the most important words on the 6-page file.

Patrick O'Neil-Dunne's 1958 admission 

In 1958, Mr. O'Neil Dunne, in his capacity as the head of a Canadian tobacco company was admitted within his company that he accepted that smoking caused cancer.

'In London I attended both the open and the secret sessions of the Seventh International Cancer Congress. The official view of the British and United States government public health services (also supported by Russian and Eastern Germany – not to mention a number of smaller countries) is: -

a) Doctors in these countries are no longer going to argue whether there is or is not a link. They are proceeding on the basis that there is. 

b) Statistically, the link is absolute, 

c) Chemically and biologically, the link has been proved beyond doubt on animals

d) On the assumption that one cannot stop the human race from smoking, the question now is simply one of what is the medical profession and the tobacco industry going to do about it."

Justice Riordan went further than refusing to give the document a "2M" designation - he struck it from the record.

The document, which was once Exhibit 917, is no longer on the plaintiff's database. The version from my records can be found here. This is a record that is not on the Legacy web-site (Rothmans were never part of the US litigation efforts).

The empty federal chair 

The second item of business this morning was the introduction by Ms. Suzanne Côté of several records that were pulled from the still-secret files of the federal government. These records are not yet on the database of the plaintiffs, but will become available as Exhibits 20007 to 20053. As I remember them, some are scientific publications, many are internal correspondence within the federal government.

These documents show the regrettable significance of the first item of business. Justice Riordan began the day by rendering his decision to turn down a request by the plaintiffs to have a former government employee in the court to assist them in providing a counterpoint to the industry's use of government records.

The reasons that these records are part of this case are because (a) the tobacco companies brought them in as third-party/action in warranty respondents, (b) the federal government did not act early to get out of the case, (c) Justice Riordan rejected a collaboration agreement between the federal government and the plaintiffs, (d) Justice Riordan rejected the government's request to be excused from the case after the Supreme Court decision in similar provincial litigation.

That is to say, the companies have not succeeded in having the federal government as a third-party to the trial, but they have handicapped the plaintiffs case. The industry now has the upper hand by having millions of pages of government documents and the resources to comb through them and cherry pick safe in the knowledge that the plaintiffs do not have he background to adequately respond.

This week the court was told that the plaintiffs recently engaged Neil Collishaw as a consultant. (Full disclosure: I have shared the same small office with Neil for over a decade and know how valuable he is as a team member!). Like virtually every other Health Canada employee who was involved in tobacco issues during the class period, Neil has been fingered as a witness for the tobacco companies. For that reason, Justice Riordan will not allow him in the court until government witnesses are called.

On Monday, the trial will resume. Mr. Wayne Knox will return for his second day of testimony.