Thursday, 14 March 2013

Day 126: Are we nearly there yet?

At 9:30 this morning, William Farone was sitting calmly as the bailiff gave his idiomatically Montreal instruction to "please close your cell phones" which heralds the arrival of Justice Riordan and the opening of proceedings in the Montreal Tobacco trials.

A half hour later, the former Philip Morris scientist took his leave. The cross-examination had evaporated overnight.

The lawyer who represents Philip Morris' interests in this trial (through their Canadian subsidiary, Rothmans, Benson and Hedges) is Simon Potter. Mr. Farone had correctly predicted yesterday that Simon Potter would keep the cross-examination ball in play until the end of the day yesterday in order to allow the lawyers to meet overnight and think up some "hard" questions.

What he had not predicted was that today Mr. Potter would have no such questions.

Instead it was Ms. Nancy Roberts, who represents the interests of Philip Morris' global rival, British American Tobacco, who stood to ask a few short questions about reconstituted tobacco. (The trial has already learned that for a long period, Imperial Tobacco manufactured this product under contract to the other companies. By the way it has been described, reconstituted tobacco bears the same relationship to tobacco leaves as bologna does to meat).

Her purpose was to get Mr. Farone to acknowledge that he had no personal knowledge of the way in which Imperial Tobacco Canada manufactured its reconstituted tobacco leaf. He agreed he had none, and the cross-examination was over.

Mr. Trudel used his 're-direct' to expose a misleading question put to the witness yesterday by Simon Potter, who had suggested that the U.S. Surgeon General had concluded there was a health benefit from low-tar cigarettes. Yesterday Mr. Potter had asked Mr. Farone: "And you know that the Surgeon General says that the use of filter cigarettes and low-tar cigarettes decrease lung cancer; don't you?". Mr Farone seemed familiar with the 1,000 page report. (Exhibit 601-1979 - large file) "He said that? I think what he said was, if you were going to smoke, you should smoke a lower tar... I don't think he actually said that it reduced it.?"

Whether or not health authorities endorsed low-tar cigarettes is an important issue in this trial. Today, Philippe Trudel, pulled out the report and invited Mr. Farone to clarify that the Surgeon-General had reached no such conclusion. He also pointed to the Surgeon General's concerns about ventilation of cigarettes possibly increasing the risk of disease, and the need for warnings about the issue. Mr. Farone testified that the ventilation was a strategy for the objective of a safer cigarette, and  reaffirmed his view yesterday that some levels of ventilation reduced smokers' exposure to toxins, other levels didn't.

"Did Philip Morris ever warn its customers or clients that smoking lower tar nicotine cigarettes may increase their chances of getting disease?" asked Mr. Trudel.

"They did not make that specific warning," replied Mr. Farone.

Loud and Clear!

Shortly after Mr. Farone left, Simon Potter rose to ask about the remaining time for the plaintiffs to finish their case. "I want to review the bidding" he began and then started to complain about the number of hanging threads that remain on issues that are supposed to be finished this month.

Justice Riordan seemed indifferent to Mr. Potter's concerns, most of which are currently under negotiation with other defendants. (One example is whether the companies would accept an affidavit in lieu of a court appearance of an elderly witness.)  The judge did, however, uses the occasion to lead a card from his own suit -- his pushed again for scheduling of the defense witnesses.

Each time the issue is raised, Justice Riordan expresses his concerns with more force - in both tone and substance. This time, he also added more details to his expectations, and put a time frame around some of them.
* He told the companies to produce a clear list of their proposed witnesses, one that follows the standards used in most trials and which includes both the length of time required and subject matter that will be discussed for each witness. This list must be produced by April 9th.
* He signalled that he will try to reduce the number of witnesses, especially from the government. "I am going to work with you to see if we can shorten it to some extent." 
* He wants clarity on how many members from each class of victims (the Letourneau addiction class or the Blais lung disease class) will be questioned.

He also clarified that he would allow a few loose ends on the plaintiffs case. The plaintiffs will be able to question certain witnesses on their knowledge of documents when those witnesses are called to testify by the tobacco companies, even if it is some time after their "proof" has theoretically closed and the questions aren't technically a cross-examination. The documents in question (most of which are on the trial record as "2M" records) will be known in advance. Some flexibility will also be allowed on a few other remaining issues (including a document whose status is now under appeal to the Supreme Court).

Even-handedly, he had some tough words for the plaintiffs too, and cautioned them against adding further to the list of new evidence than necessary.

Despite the tough talk, things seem far from settled. The first week of April is now semi-scheduled with the last witnesses and arguments on the plaintiffs case (7 more sitting days!). Where we go from there is still a mystery.

Who is in? Who is out?

Justice Riordan has also been wrapping his head around some of the details that may become important later in the trial -- especially if he finds in favour of the plaintiffs!

He wants more clarity on who is included in each of the classes, and furthered discussion today on the issues he wants better defined. At the time the actions were certified, the Blais case included both throat and larynx cancers even though -  as the judge pointed out today - larynx cancer is usually counted as a throat cancer.

Another of his concerns was the application of epidemiologist Jack Siemiatycki's conclusion that the legally attributable risk was 4 or 5 pack-years of smoking (depending on the disease in question). This is a higher amount than the threshold defined in the certification ruling, which was for those who smoked at least 15 cigarettes a day for 5 years, which is equal to 3.75 pack years.

A third clarification he requested was the treatment of people who became addicted to smoking when smoking cigarettes manufactured by companies that are not on trial. He cited, as an example, someone who was already a smoker when they immigrated to Canada and settled in Quebec. "We need to exclude people who smoked other cigarettes."

Back to "2870"

By late morning, the trial had returned to a review of documents that are already on the trial record, but which are a lesser standard of evidence - the "2M" documents.

Last week, when the current review started, there were 300 documents to review and the process was painful for all. Today was no picnic, but it was a much smoother and less tension-filled process. I would attribute most of the difference to a change in style on behalf of the Imperial Tobacco lawyer in charge of this process, Nancy Roberts. (The documents from the other companies had all been previously reviewed).

While continuing to put her clients' concerns on the record, she made less of a performance of it, and allowed the process to run about as quickly as possible. As a result, the remaining documents on this list were decided on. At the end of the day, Justice Riordan thanked her.

Again, almost all of the documents were approved for admission as evidence under the 2870 rule. The plaintiffs succeeded in selecting documents that were linked to Justice Riordan's earlier rulings.

Because documents from dead people are allowed, the plaintiffs were able to introduce many letters, speeches and reports authored by or sent to former presidents of Imperial Tobacco - John Keith, Paul Paré, Ed Wood - and senior officials from British American Tobacco. Much of this materials dates from the 60s and 70s, when the company was trying to hold back the tide of scientific evidence about their products.

Correspondence from senior BAT officials - like Sir Patrick Sheehy - were also entered into evidence in this way. Against objections that "This witness is not dead - he simply does not want to come!" Justice Riordan took the view that it was not reasonable to go through the legal process to obtain testimony from foreign witnesses.

By the end of the day, the few dozen documents that remained on this list had been dealt with. It's powerful reading, and must be even more powerful evidence.

Next week will begin with the return of two witnesses -- Jeffrey Wigand and Ed Ricard. On Tuesday, Jack Siemiatycki will return. On Wednesday and Thursday, the plaintiff's expert witness on addiction, Dr. Juan Negrete, will appear.