Tuesday, 12 March 2013

Day 124: One Year Later

For information on accessing documents, see note at the end of this post 

The Montreal tobacco trials entered their second year today. There was no birthday cake.

A year ago the court-room was packed with spectators and the corridors were full of camera crews and well-wishers. Today, the camera crews were back in force -- but for a difference trial and on a different floor. Outside our 17th floor courtroom the hallways were silent. No onlookers joined us on the public benches.

During a dull moment today, of which there were more than a few, I calculated that in court-time alone more than 15 person-years of work-time have been spent in courtroom 17.09 on this case. And we are not yet past the half-way mark!

The return of Christian Bourque

The witness today was Christian Bourque, vice-president of the polling firm Léger Marketing, and the plaintiff's expert witness on polling.

Mr. Bourque's mandate was to review the companies' ongoing knowledge of smokers' perceptions and knowledge about the risks of smoking and to identify the apparent goals of the industry's studies about the risks associated with smoking. (His expert report is Exhibit 1380)

This was Mr. Bourque's second appearance at the trial. Following Justice Riordan's instructions in January that an amended report was required before he could testify about Quebec-specific findings, he did a second analysis of Imperial Tobacco's research data.

It would seem that, according to Imperial Tobacco's studies, the state of knowledge about the harms of smoking was worse in Quebec than in other provinces. In this second report (Exhibit 1380.2), Mr. Bourque found that Quebecers' beliefs about smoking were weaker, and that the difference is statistically significant.

"There seems to be a difference in the level of knowledge or perception of the dangers of smoking in Quebec compared with elsewhere in Canada. Quebec respondents who knew or perceived dangers with smoking were proportionately smaller." (my translation).

Mr. Bourque also found that during these core years of the period in question, Quebecers thought you could smoke more cigarettes without hurting your health than did smokers in other parts of Canada.

Mr. André Lespérance asked no questions of his expert witness today. The brevity of his examination was countered by the perplexing exhaustiveness of the cross-examination by Imperial Tobacco's counsel, Suzanne Côté.

A long cross-examination.

Mr. Bourque appears to be another victim of Imperial Tobacco's recent tactic of detailed and prolonged cross-examination. For virtually the entire day, Suzanne Côté read from a thick binder of prepared questions, moving down the list as though taking inventory. Despite her obvious skills in grilling witnesses (no follow-up questions missed), there was an artificial note in this marathon of questions.

Ms Côté applied a fine-tooth comb to the methodology used by Canadian Facts, often focusing on methodological issues. Watching her were the expert witnesses for the defence team -- Montreal sociologist Claire Durand and Canadian ex-pat Raymond Duch.  I am sure they felt good that their detailed criticisms had been given air-time.

I confess I was unable to figure out the strategic thinking behind this approach, even to the extent of properly describing it. Many questions seemed benign and unimportant. Mr. Bourque's safe but mostly unmemorable answers were of no apparent assistance to either side.

Could the company be ragging the puck in order to delay the trial moving to the next stage? The thought occurred to me when Ms. Côté ceded the floor with not enough time left in the normal sitting day for the other two companies to get their turn. If the intent had been to force another day for Mr. Bourque, it failed. Justice Riordan insisted that this testimony finish today - which it did, an hour later than usual.

Knowledge and perception

One of the industry's core defences in this case is that the risks associated with smoking were "known" to Quebeckers.

It seems obvious that Justice Riordan will be required to rule on the epistemological issue about smokers' "knowledge" of health risks. Christian Bourque's appearance today may have foreshadowed some of the arguments the companies will make, and perhaps their cross-examination was designed to add yeast to this fermenting debate.

For example, each of the companies' lawyers today used Mr. Bourque's presence to enter into evidence results from seemingly arcane polls.

* Ms. Côté pointed to a Gallup poll that found that only 4 out of 5 Americans ("the same number as those who believed smoking was "dangerous for anyone" in 1991) believed that the earth revolved around the sun and not the other way around.

* Simon Potter drew attention to a Leger Marketing poll that questioned Canadians' belief in the supernatural (57% believed in angels!) to challenge the view that awareness and beliefs were different.

* Catherine McKenzie pointed to a 1991 Angus Reid survey showing that only 82% of Canadians correctly stated that there were 10 provinces.

Despite the distractions of the cross-examination, Mr. Bourque's report and his testimony are a reminder of how rich Imperial Tobacco's market research was. Many of the documents on which his report was based are available as exhibits 987.1 to 987.50.

They can't all be good days.

Yesterday's testimony by Wayne Knox was a delight. Tomorrow's appearance by William Farone looks very promising. Today will be soon forgotten.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links