Tuesday, 9 April 2013

Day 135: An agenda to intimidate

This afternoon's discussion between Justice Riordan and Imperial Tobacco's counsel about the upcoming trial schedule felt again like a high-powered game of cards. For 90 minutes, each side seemed to assess the other's hand - and their willingness to play it.

At stake is another year of everyone's life, as the industry lawyers suggest that they want twice as long to present their defense as the plaintiffs took to make the case against them.

Show me your cards, the judge had effectively told the defendants in the Montreal class action suit when he told them on March 14th that by today he wanted to see a more definitive list of estimates than the version shared at the beginning of January. "This is going to be your best estimate, at this time, of who the witnesses will be, what they're going to talk about and how long it's going to take."

The purpose of the exercise, he hinted, was to work to try to tame the proposed of length of the companies' defense. "With that list, I intend to work with you to see if we cannot shorten it to some extent and avoid duplication, and perhaps find admissions and do a case management."

Not exactly playing along

The list the judge was given today has not yet, as far as I know, been made available to the public (at least I haven't seen it in full). But from what was said in court, it appears that the industry has lengthened, not shortened its list. In January, they forecast 21 government witnesses -- today, apparently, the list has grown to over 38.

Their schedule suggests the trial will run past the spring of 2015 - and that's before the potential addition of 3 more expert witnesses. Twenty-six more months of trial!

The companies not only cocked a snoot at Justice Riordan by trying to defeat the purpose of the exercise, they also included elements that were bound to irritate this judge. They ignored his recent instructions on the sitting schedule for this spring, and made no adjustments to reflect his concerns about the scheduling of Simon Potter as a witness in a trial for which he is also counsel.

The person given the task of dealing this hand to the judge is a rare presence in this courtroom -- another Toronto-based counsel for Imperial Tobacco, Valerie Dyer. With its big team, Imperial Tobacco often switches-up its team, but bringing in this new player at this time also looked like it was a play for psychological advantage in this open-court negotiation.

Ms. Dyer is obviously a woman with experience.  With the solid presence of a hospital matron, she came prepared with arguments why the long list of witnesses was essential to the case.  In a completely deadpan way, she explained "Like Mitt Romney, I like to work with binders of people." 

Cards on the table: the "government defense"

Although the industry lost its ability to make the government an official defendant in this case, Ms. Dyer referred on at least three occasions to the "government defense" that she is presenting. With or without the government in the room, it is clear that Imperial's plan is to focus on the interactions among the companies and Health Canada and Agriculture Canada.

"The plaintiffs are asking you to look through the prism of history," she explained. Her line-up of witnesses were "the people who made the policy."  She wants the trial to hear from those who measured tar and nicotine levels for government, those who discussed voluntary measures with the industry, those who responded to developments on addiction, those who believed in a less hazardous cigarette, those who developed new strains of tobacco to be grown in Canada, and those who studied smoke chemistry.

"There is no question that at the time everyone thought they were doing the right thing," she said. "[Yet] all the plaintiffs say is that we commit faults." 

Not in the deck: The dead witnesses

Without any obvious sense of irony, Ms. Dyer explained that it is because many witnesses are dying that the company has expanded its list of government workers who will be asked testify.

The discussion began with a report of the recent death of ITL scientist, Stewart Massey - only one of a list of principal figures and potential witnesses who have died since the trial began.

Ms. Dyer noted that Dr. Harold Colburn (from Health Canada) Professor PK Basrur (University of Guelph) have both died in recent years, and she reported concerns about the advancing years and "deteriorating health" of other proposed witnesses, such as Maurice Leclair and former IMASCO chair, Purdy Crawford.

In her count of "my dead witnesses," Ms. Dyer includes 10 deceased Imperial Tobacco staff, 20 deceased Health Canada representatives and 6 to 8 deceased associates of Agriculture Canada. Her staff, she said, kept an close watch on the obituaries.

Close to his chest

Justice Riordan delayed most of his response to the lengthy forecast for the trial. It would require more thought on his part, he said, noting that the discussion might continue on Thursday.

Nonetheless, he indicated his concern with the length of the trial and his unhappiness with the prospect of Simon Potter testifying or the suggestion that the trial would not sit for three weeks in June.

The other hands

The plaintiffs said little this afternoon, other than to note that "everything [in the schedule] seems exaggerated in time" and that this spring's schedule could still accommodate about 10 additional witness-days. They pressed for the extra week's hearing in June and signaled some concerns about the ways time might be misused during the filing of documents.

A bluff?

As I understand it, the tobacco companies will be arguing in three weeks time (April 29, 30) that sections of the claims against them be struck down for want of evidence or other reasons. Perhaps now is not the time to expect them to produce a schedule that does not offer some practical (i.e. time-savings) pressures to buttress their legal arguments.

The benefits to the companies of signalling a long and sustained defense go beyond trying to tinker with Justice Riordan's judicial calculus or scaring the plaintiff's account managers. Provincial governments and their legal teams are also likely sizing up the length and strength of the industry's defense as they plan their next moves in the cost-recovery suits.

Extracts from the proposed schedule for the defense

May 2013

13          Trial management/review of judgement
14 15 16 Expert witness Jacques Lacoursiere
21 22 23 Expert witness David Flaherty
27 28 29 Expert witness Raymond Duch

June 2013
10 11 12 13 – "2870" documents
17            Expert witness Robert Perrins' support materials
18 19 20  Health Minister Marc Lalonde

(August 2013 to April 2014 - industry witnesses, not revealed today)

May 2014

5,6      Health Canada: Maurice Leclair
7         Waterloo University) J.C. Robinson
8         Waterloo University) W.H. Cherry
12        Health Canada: Neil Collishaw
13 14   Health Canada: Monique Bégin
15, 20, 21, 22  Health Canada: A.J. Liston

June 2014
2, 3      Health Canad: D.F. Bray
4          Health Canada: Margaret Catley Carlson
9          Health Canada: Perrin Beatty
10        Health Canada: Michele Jean
11, 12, 16, 17  Health Canada: Murray Kaiserman
18-19   Health Canada: Denis Choinière

September 2014
2-3       Labstat: Bill Rickert
4          Health Canada: Byron Rogers
8 9       Health Canada; Bruce Rawson
10        Health Canada: John Bachynsky
11        Health Canada:  J.L. Fry
15        Health Canada: David Kirkwood
16        Health Canada: Maureen Law
17        Health Canada: David Dodge
18        Health Canada: David Crombie

October 2014

1          Agriculture Canada: Frank Marks
2, 6, 7  Agriculture Canada: Wade Johnson
8, 9, 14 Agriculture Canada: R. Pandeya
15        Agriculture Canada: J. Brandle
27, 28, 29 Agriculture Canada: Brian Zilkey
30        Agriculture Canada: WA Court

November 2014
3         Agriculture Canada: W.A. Court
4, 5     Agriculture Canada: J.J. Cartier
6         Agriculture Canada: Yvan Martel
10       Agriculture Canada: Elson Ashby & Carole Size
11, 12 Agriculture Canada:  Ken Walker
13       Agriculture Canada: Nestor Rosa

December 2014 - May 2015  (dates not clear)
(Representatives from the classes -- 15 members of the Blais class and 35 members of the Letourneau class).

Earlier in the day

The industry's proposed schedule was only circulated at lunch time. During the morning, three short items of business were managed.

A government witness - Statistics Canada

Julie Bernier, who directs the health analysis section at Statistics Canada, had been summoned in order for the plaintiffs to put on record data from three of the surveys conducted by Statistics Canada on smoking behaviour.  These include data from the National Population Health Survey (Exhibits 1535.1), the Canadian Community Health Survey (Exhibits 1535.2, 1535.3, 1535.4) and the Canadian Tobacco Use Monitoring Survey (Exhibits 1537.1999, 1537.2000, 1537.2001, 1537.2002, 1537.20031537.2005, 1537.2004). 

Two of the companies unsuccessfully attempted to block the introduction of this evidence (the third, RBH, had previously introduced survey reports from one of these surveys, which would have made it a harder argument to sustain. They expressed concerns about "the process and the use that will be made of the data without our ability to put questions" and the "use of this this evidence to establish the size of the class."

They did not, however, offer any alternative or preferred sources of information about smoking rates in Quebec. Their complaints about lack of confidence intervals in the data resulted in Ms. Bernier agreeing to provide this information in the coming days. 

A secret discussion about secrets

For only the second time since the trial official opened last March, the courtroom was closed to observers as  Justice Riordan examined whether a portion of CTMC minutes should be kept confidential or privileged. It is not entirely clear what decision was reached during this hour, although by inference Imperial Tobacco may have been successful. This afternoon it was reported that the company would provide a newly redacted version of the material. (These minutes will be introduced as Exhibits 479 KK and 479 JJ).

Getting to the end of the "2870"

Another list of requests for "2870" was completed today. 

Imperial Tobacco has objected to virtually every one of the documents proposed over the past months, and although Nancy Roberts' delivery of the objections has been cranked back a notch, it has still been a trying process.

Exhibit 102
With the end of these rulings in sight, Justice Riordan began to push back against Ms. Robert's objections, pointing to the holes in her argument about one of the more emotionally compelling documents introduced in the trial. 

Under review was the posthumous account by scientist Pat Dunn of the pressure he felt from lawyer Roger Ackman to accede to the new document destruction policy. (Exhibit 102a)

Ms. Roberts did not want Mr. Dunn's reflections to be given the status of testimony. She objected that these documents were "replete with opinion and double hearsay" and that they were unnecessary as "we had Mr. Ackman who testified in court that he would never have said one of the statements attributed to him."

"What if I don’t believe Mr. Ackman or his memory?" Justice Riordan asked. "I have to keep the options open, don’t I?" 

But it was still hearsay, protested Ms. Roberts. "It's not hearsay if it was said to him directly," Justice Riordan pointed out - "if I don’t have the document, how can I weigh the evidence?"

Ms. Roberts tried another approach and pointed out that the evidence was already on the trial record, as the document had been admitted under the  May 2 ruling. Justice Riordan reminder her that the company was contesting that ruling, and that the plaintiffs naturally wanted to have it admitted under other provisions in case the company's challenge was successful.

Over the past year, Justice Riordan has made virtually no references to the credibility of any testimony. The fact that he chose one of the more dramatic conflicts -- and one involving the testimony of corporate lawyers -- made this even more noteworthy.

Tomorrow (Wednesday) the trial will suspend for a day. On Thursday, there will be a discussion of proposals to change the definition of the classes in both the Blais and Letourneau actions.