Tuesday, 2 April 2013

Day 131: Still more finishing touches

See note on accessing documents at the end of this post.

There was a somewhat reduced gathering in Courtroom 1709 of Montreal's Palais de Justice as the Montreal tobacco trials reassembled after the Easter-week break.

Today's business was of a nature that did not require a full bench of lawyers from either of the two plaintiffs' teams, nor from the three tobacco companies who are defendants in the trial. There were no witnesses scheduled for the day, and no surprises were anticipated.

There were only a couple of lawyers present for most teams, and even that smallish cadre dwindled over the day. For once, all the of the lawyers in the court could have comfortably fit in one elevator as they headed out for the day.

Group dynamics are often different when the size of a gathering changes, and this trial is no exception. It was not only the absence of court-dress that gave an air of reduced formality - there were more comments passed across the floor, more tangential comments, and more conversational exchanges. (It's not that the hostility was lessened - it was just expressed less stiffly.)

Even Nancy Roberts, who rivals Simon Potter in her capacity for drama-queen objections, was unable to sustain a theatrical tone when she presented Imperial Tobacco's many objections to this intimate group.

One week - Two rulings

Although the court was not sitting last week, time did not stand still. Two rulings were released during the recess.

The Court of Appeal gave an initial response ruled on Imperial Tobacco's request for a review of Justice Riordan's decisions to admit documents under the provisions of Article 2870 of Quebec's Civil Code. Justice Jacques Dufresne ruled that a panel of the Court would be convened on June 10th to consider further their request.

The other ruling was Justice Riordan's reasons for permitting three Brown and Williamson documents to be introduced as evidence in this trial over the objections of ITL. (These documents are now Exhibit 1467.1, 1467.2 and 1467.3). There was something new and different in this decision, however. Four words appeared for the first time in any of his rulings "With Costs Against ITL."

Lots of loose ends 

This was the first week of 'overtime' in the plaintiffs' presentation of their proof, which had originally been scheduled to finish at the end of March, but which continues to receive finishing touches.

Today's tasks all involved adding more evidence to the trial record, or increasing the value of evidence already on the record.

Over the past month, the plaintiffs have worked to remove the lower-status "2M" designation from certain documents filed under the conditions set by Justice Riordan's May 2 ruling. Their three main approaches to this have been to a) appeal to Article 2870 for documents written or received by people who are now dead or unavailable, b) recall witnesses who can confirm receipt or authorship of material, and c) negotiate with the companies for consent to re-designation in exchange for not having witnesses recalled. Today, all three approaches were evident.

Two of the companies -- Philip Morris/Rothmans, Benson and Hedges and JTI-Macdonald -- consented to changes in evidentiary status for some documents from their companies in return for witnesses not having to be recalled. Today, the following exhibits consequently had a change in status: 781, 1316, 1325, 744, 610, 612B, 621, 637, 641, 697, 1414, 1415, 1416, 1417, 600A, 958, 968A, 968C, 968W, 989.21
Imperial Tobacco seems to have taken a different approach. Today they reluctantly agreed to the upgrading of two exhibits authored by Ed Ricard, but not to documents authored by other key players in the company. As a result  Jean Louis Mercier and Michel Descôteaux will testify in late April after they return to Montreal from their wintering spots.

2870 and CTMC documents. 

At the beginning of this year, the plaintiffs received some 30,000 documents from the CTMC archives. To put some of these documents in evidence, they have recalled the former CTMC head of communications, Jacques LaRivière, to testify later this week.

But for a few dozen documents where the author is deceased, they asked  Justice Riordan to apply the provisions of Article 2870 of the Quebec Civil Code. That is to say, they asked him to repeat a process that the Court of Appeal has now said it will review.

Officially, Justice Riordan made no changes to respond to the higher court schedule and rejected the request of Imperial Tobacco to reserve his decisions until the appeal process was completed. "If the Court of Appeal clarifies the criteria and some of the documents need to change their status, I propose to change the status," he said before explaining that he would "be provisionally deciding today."

But he most certainly changed the style with which he considered the documents. Much more than before, today the plaintiffs were swimming upstream in trying to get his approval.

The judge gave the thumbs down to many documents, and gave almost all requests a rough ride. "We already have evidence on all that." ..."What does this document give us?" ... "What does this have to do with anything?" ... "I don’t see the usefulness of this."

Sadly, the plaintiffs were unable to introduce several documents that showed how the industry orchestrated presentations to the 1968 parliamentary hearings (the Isabelle Committee). Justice Riordan considered their coordination of experts, farmers and other friendly groups to be irrelevant to the trial -- what's more, he sounded like he thought it was standard fare.  "If they didn’t do this, you would think they were incompetent." 

A much smaller proportion of documents made the cut. On the fly, the plaintiffs triaged their list and withdrew many documents.

Papers from the Macdonald Stewart Foundation 

Another set of documents introduced today came from the private philanthropic foundation, the Macdonald Stewart Foundation. It was established with the proceeds of the sale when Macdonald Tobacco was sold to RJR-Reynolds in the early 1970s.

The Foundation holds the personal business papers of the Stewarts, the last owners of the company. Dating from the 1960s, they are among the oldest of the business documents available.

These papers are not yet available on the plaintiff's database, but when they are they will add more detail to the colourful history of this family. (They will be Exhibits 1485.1, 1485.2, etc.)

Management issues

At the beginning of the day Justice Riordan shared some additional thoughts on his ongoing concerns about the criteria of class membership in this trial. (The original scope of the classes as outlined by Justice Jasmin in 2005 have been subject to ongoing review.)

Today's questions to the plaintiffs included issues related to the severity of emphysema, the inclusion of the larynx among throat cancers, and the time it takes for a smoker to become addicted. This is a pot that is likely to be stirred many more times!

The judge also announced the sitting schedule for the coming weeks.

The defendants' motion for "non-lieu" has been scheduled for April 29 and 30th for some weeks. Today, Justice Riordan said that he would render his ruling on the matter the following week and that after that it would be straight back to work. "If I do not find for the defendants, we will start the defense on the 13th [of May]." The trial will sit between then and June 27, recessing only for the first week of June.

Tomorrow, the cross-examination of addiction specialist, Dr. Juan Negrete, will be completed. On Thursday, the former head of communications for the CTMC, Jacques LaRivière, returns.

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