Monday, 13 May 2013

Day 141: Jacques Lacoursière and common knowledge

Today the three tobacco companies began to present their joint proof against the allegations they face in Quebec's two large class action suits.

They chose to begin with evidence to support their claim that the harms of smoking were well known by the Quebec smokers who are represented in these actions. The expert witness to whom they assigned this task is as close to a "star witness" as they have on their roster.

The popular historian and his expert opinion

Within Quebec, Jacques Lacoursière is as close to a household name as an historian could be. Now 81 years old, his curriculum vitae bulges out with 50 years of notable publications and accolades. This teacher, television personality, author and researcher earned his PhD the hard way -- twice. In 2008, he received an honorary doctorate from both the University of Moncton and the Université Québec à Montréal.

Many Quebecers would have learned about their own history through the Boreal Express that he co-authored, or through his 15 volume history of the province sold through grocery chains Loblaws and Steinberg's, or through the Radio-Canada series on Duplessis for which he provided research support. The theme throughout his wide-ranging works on Quebec's, he told the court today, was "daily life."

Despite the fact that tobacco seems to have played a very small role in his publication history to-date, it turns out that this is a subject that has long interested him.

In the opening passages of his expert report, he recounts that it was an early exposure at school to Jacques Cartier's description of tobacco that piqued his interest, and that since then "every time that I found information on tobacco, I kept it, as it was among the issues affecting daily life that became my central interest." (An official translation of Mr. Lacoursière's report is not available, and my clumsy translation may not do it justice - see para 7 in his report, Exhibit 30028.1, for the original text).

He suggests that for over 60 years, he has kept a clipping file on tobacco! Beginning in 1949 with the daily newspaper Le Devoir, he then expanded his subscriptions to La Presse, The Gazette, Journal de Montreal (in 1966)), and Le Soleil and Journal de Quebec (in 1990). "All in order to pull out those things which touched daily life, including, of course, tobacco."  

Even though he never published on tobacco, it sounds as though Mr. Lacoursière was well prepared to help Rothmans, Benson and Hedges when they approached with a request for him to review the state of common knowledge in Quebec on the to physical health and addictions risks associated with tobacco use and cigarettes for the years 1950 to 1998.

With the help of four Ph.D. level history students and others, Mr. Lacoursière's work for this case involved the collection of about 20,000 articles and historic records. They collected over 143 binders with material, but only about 1 in 30 of those documents found their way into his report.

The 714 records (newspaper clippings, electronic files and other blasts-from-the-past) are not yet available, but will likely be put on the trial record later this week as Exhibits 30029.1 to 30029.714. They will provide a useful historical compendium of the way that key events in tobacco history were covered by newspapers, magazines and electronic media in Quebec.

These records include news reports of government statements and scientific findings, as well as those of independent scientists and industry-related scientists who contested the lung-cancer smoking link. The denials by tobacco company representatives also seem to be faithfully included. In this mixed bag "About 90% of the news reports denounced tobacco use,and about 10% contested the relationship between smoking and disease,"  Mr. Lacoursière told the court this afternoon.

His report and its annexes will provide a handy-dandy catalogue of smoking-related events as covered in Quebec newspapers over six decades. But as for his conclusion that  it would be impossible for someone not to know that smoking was dangerous? Or that his research task was relevant? That's a different question.

Flaws in Mr. Lacoursière's work have already been discussed in this trial when another historian, Robert Proctor, soundly criticized the approach taken by the industry's "common knowledge" experts Jacques Lacoursière, David Flaherty and Robert Perrins. In his own expert report, (Exhibit 1238) Robert Proctor faults these historians for failing to look beyond the newspaper headlines.

Mr. Proctor criticized Mr. Lacoursière for making "no effort to look at the industry‘s impact on popular attitudes, and no effort to examine how manipulations in the design and marketing of cigarettes—such as filters or low tars, for example—may have influenced smoking behavior and popular attitudes toward cigarettes or the maladies they cause.  Instead, we have a kind of argumentation by accumulation .... Lacoursière‘s chronology is more like a clerical performance than a serious historical assessment and analysis."

Mr. Lacoursière's testimony 

One might have expected the day to be a good one for the combined defence teams. Certainly there was no indication from their teams that they expected anything but smooth sailing on this their opening day. Why they had even called in the media! (The CBC sent a camera crew and filed a small report).

The conditions for the defence were as ripe as they are likely to get. Mr. Lacoursière is an experienced raconteur (you don't get to be a famous popular historian without knowing how to tell a story well). The plaintiffs had planned no unpleasantness or challenge to his being qualified as "an expert in popular history". The vagaries of scheduling meant that the soft-spots in his report had already been put on record, giving the witness the advantage of 'having the last word' against his critics.

Why, even the rules of this courtroom were softened in ways that allow the defence to make its points more clearly!  One of the first things shown this morning were 2 powerpoint slides that RBH lawyer, Jean-Francois Lehoux, used to establish how this witness perceived the development of common knowledge and how he approached historic research. (Technically, Mr. Lacoursière is an RBH witness).

Now, only four months ago the plaintiffs were warned off their plans to use powerpoint. Justice Riordan had cited concerns about the amount of court time that would be lost to objections from the tobacco company lawyers to the courtroom innovation. With the tables turned, the plaintiffs let it pass almost without comment. Philippe Trudel rose to share some "private reflections", thought the better of it and quickly sat down. It was only one of several moments over the day that made heads shake and lips smile.

Going off the rails

By mid-day, however, the Defence's first day seemed to be getting bogged down.

The dialogue between lawyer and witness had slid into a pattern that was not going anywhere pretty. Mr. Lehoux's questions on the report seemed to elicit no new information, but merely prompted the witness to restate his written view. (Whether the witness' obvious reliance on the written text in his answers was related to the minor mental lapses he was experiencing - i.e. remembering people's names - was hard to assess.) Progress seemed slow and - even to my ears - the questions seemed leading.

The plaintiffs did not complain much - they seemed to have decided to allow the day to ride out. Justice Riordan, however, showed his irritation at the rate of progress even without the prompting of an objection.

After lunch, it went further downhill. Against Justice Riordan's obvious discomfort and repeated complaints, Mr. Lehoux insisted on playing numerous excerpts from television news programs, NFB films, radio interviews and Health Canada promotions.

An impatient court watched a "vox pop" television item, a studio interview filmed after the Surgeon General's report, and listened to radio interviews with physicians. We saw smokers from all walks of life - railwaymen, glamour gals, physicians - explain their frustration in trying to quit smoking.

There were enough NFB cartoons to fill a good part of a Saturday morning TV schedule. There was one about a child who escapes from the land of the King Size, and another cartoon showing a smoker so despondent about his inability to quit that he decides to end it all by filling the kitchen with gas - only to  trigger an explosion as he lights a final cigarette. Smoking tango dancers. Smokers avenging taxes.  Blowing up dynamite!  And more!

It was a most peculiar afternoon - and not just because there was no popcorn to go with the film! Surprisingly, given the story-telling talents of the witness and the novelty in the court of watching a new medium, there was no narrative arch to the material that was being presented and certainly no dramatic punch.

Knowledge and beliefs

para 112 of
Mr. Lacoursière's report
A continuing question in this trial is the importance of distinguishing between knowledge and beliefs. On this point, Mr. Lacoursière seemed not entirely helpful to his clients.

At one point, Mr. Lehoux had asked him to explain why, as an historian, he could report on knowledge (measurable through historic records) but could not do so for beliefs (which would be in the domain of pollsters) and then tried to maintain that there was no reference in this expert's report related to popular beliefs.

Mr. Lacoursière interrupted to correct his client, and pointed to a section in his report where indeed both knowledge and beliefs had been reported. In that case (para 112), the number of Canadians who believed that smoking caused lung cancer in 1952 was less than one-third of those who had heard reports that it did. (25% vs. 89%).

There was another point where Mr. Lacoursière referred to beliefs ("croyances") instead of knowledge ("connaissances"), only to have Mr. Lehoux quickly correct him. This drew an objection from plaintiff lawyer Philippe Trudelle. The short verbal dust-up that followed - "It was a minor lapse! This is not a child's game" - could only have emphasized to the witness how important this distinction is to both sides.

Mr. Lehoux also gave his witness some opportunities to respond to the criticisms that were expressed by Mr. Proctor. Why did he not refer to tobacco advertising but did refer to advertising of stop-smoking aids? Why is it not important to public knowledge when industry representatives deny 'common knowledge'? 

Mr. Lacoursière's replies did not shed much light on the matter - the witness mere restated that the fact that stop-smoking aids were sold meant that there was a public understanding that it was hard to quit and that the industry views would not have affected public knowledge as much as those of the more credible organizations, like the government or medical authorities. (One might have thought that this was a more important distinction for 'beliefs about' rather than for 'having heard about', but there you go).

There will likely be more such opportunities presented tomorrow. Despite Justice Riordan's mid-afternoon threat to restrict Mr. Lehoux to one day of testimony, RBH will continue to examine Mr. Lacoursière tomorrow. The other companies and the plaintiffs will then have an opportunity to ask questions.

Can anyone find a witness?

There seems to have been slow progress in finding additional witnesses for this opening defence session, and Simon Potter was pointedly asked to explain what would be happening later this week after Mr. Lacoursière's testimony was finished.

Mr. Potter's offer to have the court talk about other yet-unresolved issues (like the definition of classes) was rejected. The plaintiffs and the judge want to know which witnesses are scheduled to fill in the holes left when Mr. Lacoursière is finished and before Mr. Flaherty begins -- and the holes after that too!

Despite having 90 plus witnesses on their list, the companies seem to have no one yet available to testify.

Tomorrow Mr. Lacoursière's testimony will continue.