Wednesday, 15 May 2013

Day 143: The countdown clock starts

There are days when observing the Montreal tobacco trials has been like watching the proverbial paint dry. And there are days when it has all the excitement of playoff hockey.

Minus the beer and the cheering, today was a Stanley Cup day -- everyone was sitting forward in their seat intensively watching events unfold. Yet arguably the biggest development of the day happened not in the courtroom, but in a ruling Judge Riordan issued mid-day.

Time allocation 

Justice Riordan played what he must hope will be the final round in his ongoing tussle to get a reasonable and realistic schedule from the tobacco companies on the presentation of their case. In today's "Case Management Ruling" he followed through with his threat to cut the time available to the companies to 175 days, and set some conditions on the sequencing of their witnesses. (This gives the defence about three more months to than the plaintiffs took).

His nine-page judgment had harsh words for the companies - and especially for BAT's Canadian subsidiary, Imperial Tobacco Canada. "The Court must now intervene to avoid what it considers to be abuses on the part of the Companies, and especially ITL." He cites the "excessive lengths" required to review documents resulting from ITL's persistent objections, the "triplication" of expert witnesses with "overlap and overkill."  

"The court is convinced that ITL, in particular, is attempting to prolong this trial unnecessarily by many months through a series of excessive and unreasonable measures."  ...  "The courts are not the servants of individual litigants but, rather, of the system of justice." Any bets on whether Imperial Tobacco refers this ruling to the Appeal Court?

It would be hard to maintain this was a victory for the plaintiffs in that they mostly sat silent during the protracted exchanges between the defendant companies and Justice Riordan over several months. But it certainly is a welcome development for them and their pocketbooks. Doubtless they agree with Justice Riordan's comment that "After 15 years... judgment must be rendered in these files."

 Or maybe the companies will decide to take even less time ....

After this week's debacle of their first expert witness, Mr. Jacques Lacoursière, the companies might not look so enthusiastically at the prospect of a long trial.

Beginning this Monday, it has been the companies turn to tell their side of the story. They opened with a well-known and highly respected historian, whose job it was to convince the judge that Quebecers have long had "common knowledge" about the harms of smoking and addiction to cigarettes.

But it started poorly, and went down hill from there.

Under questioning from his own client (RBH lawyer, Jean-Francois Lehoux) the witness repeatedly blanked. Even when fed the cue-phrase "with respect to common knowledge" ("au niveau de la connaissance populaire") at the beginning of each question, he rarely provided a reply that was not a verbatim repeat of his expert report (Exhibit 30028.1) or incoherent or irrelevant.

It was hard to connect this deer-in-the-headlights witness with a man who is well known and well loved because of his ability to communicate.

It was almost a relief yesterday when Mr. Lacoursière pleaded tiredness and the court adjourned for the afternoon.

Throwing in the towel on their first witness

This morning, Justice Riordan asked kindly if Mr. Lacoursière was feeling better, and the two men discussed the restorative powers of an afternoon nap.

But the companies apparently decided they would take no more risks with this witness. After 2 or 3 brief questions (during which the witness was again corrected for putting the term "beliefs/croyances" on the record when what really meant to say (cough) was "knowledge/ connaissance", RBH's lawyer, Jean Francois Lehoux, packed it in.

The court had been in session for less than 15 minutes - and about half of their first witness' report was left untouched.

The Cross Examination

It was up to Phlippe Trudel to begin the cross-examination. From his first question until the court adjourned mid afternoon, the courtroom had the particular electric feeling that comes during cross examination. (It is at these moments that the trial really resembles a spectator sport, and when you can virtually see the mental score boards each side is keeping).

Surprisingly perhaps, Mr. Lacoursière seemed more relaxed and more confident (less fearful?) when being questioned by this plaintiffs lawyer than he had when responding to his client earlier this week. He no longer sat slumped over his report, but stood more erect and mostly maintained eye contact with Mr. Trudel.

The conversational tone in which Philippe Trudel put his questions only slightly masked how tough they were.

He almost mockingly adopted the same pattern and patter that the RBH counsel had drilled down over the past few days. Just as Mr. Lehoux had done, he identified a paragraph in the report and then ask the witness a formulaic question about its significance "with respect to common knowledge." 

With his opponent asking questions almost identical to his own, Mr. Lehoux had very little ground to object, and indeed was unable to block any of Mr. Trudel's questions over the day.

Over the morning Mr. Lacoursière was asked questions that exposed his inconsistent approach to polling and smokers' beliefs. Oh, and they also drew attention to moments when it was clear that Canadians really didn't have a solid grasp of the dangers of smoking - like a 1991 survey conducted for a health charity that showed that very view Canadians could volunteer that tobacco use caused common diseases, like emphysema and asthma.

Why yes, he had included poll results in his report, and yes, he did interpret their importance as well as criticize their methodologies, but then again, he was "as an historian, not qualified to interpret polls." This answer sounded even more rehearsed than it had yesterday.

Nonetheless, it wasn't long before Mr. Lacoursière conceded that an historian could use polling while interpreting "common knowledge." It was just that he had chosen not to do so.

Other questions from Mr. Trudel exposed the limitations of his report on what smokers knew. Did smokers understand how important the risks of tobacco use were? Or how likely they were to get any of those diseases? By showing that he had no personal knowledge of the degree of risk for larynx cancer or bronchitis, Mr. Lacourcière effectly demonstrated that if there was common knowledge on these issues, it was not shared by all.

Still more questions looked at the methodology Mr. Lehoux had used -- why were some newspaper reports included when the papers themselves had not been included in the survey methodology? (Can one really have a 1963 Financial Post clipping on hand "by chance"?)  And in the absence of established or constant definitions for addiction ("dépendence") how did this historian come up with a meaning that he could apply historically?

The inference grew stronger that the hands on the pen of Mr. Lacourcière's report may not have been uniquely his own.


It was when Mr. Lacoursière admitted to having retinal problems and no vision in one eye -- and was unable to read an overhead screen on which the letters were blown up to at least 5 inches -- that Mr. Trudel began to explore the background to Mr. Lacoursière's report.

(With such bad vision, is it plausible that this witness reviewed 20,000 texts, let alone the microfiche files from which they came? Well, he said his vision was much better in 2001 when he commenced the research.)

It turns out that the man who directed research on the majority of newspapers which were reviewed (UQAM history professor José Igartua), had not been selected by Mr. Lacoursière, but had been chosen by the lawyers at Ogilvy Renault. (Simon Potter, now representing RBH through McCarthy-Tétrault was a partner at Ogilvy Renault at this time, and his client was Imperial Tobacco Canada).

Nor was there a close working relationship between the two men. Mr. Lacoursière spoke of difficulties reaching Mr. Igartua when he wanted to understand why files from the Gazette had not been collected after 1983. (After he finally was able to reach him, Mr. Igartua apparently did not know).

The pre-digested state of the "reliance" materials (the 20,000 documents from which Mr. Lacoursière had selected some 700 extracts) was made evident when Mr. Trudel displayed the cover sheets that accompanied each binder.

The research notes that were displayed on screen in the court (soon to be available as Exhibit 1541) look remarkably like the summaries in Mr. Lacoursière's chronologically ordered report.

Others may have had different impressions, but from my seat Mr. Lacoursière began to look less like an authority and more like a pawn in someone else's game.


Although no tobacco advertisements were included among the material Mr. Lacoursière considered relevant for "common knowledge", he had nonetheless  routinely included them in his files when clipping Actualité and the two other publications he had personally reviewed.

Mr. Trudel put a binder of such ads on the trial record (Exhibit 1541), and drew attention to a Vantage ad that addressed smokers "REMORSE" ("Remord"). (It is not yet available, but is in a similar genre to the smoke-smart ads discussed earlier in the trial).

Could such ads have an impact on beliefs about filters? Mr. Trudel wanted to know.

His answer had both Mr. Lehoux and the lawyer representing the company that made Vantage, Francois Grondin, scrambling to their feet."It's not important to me as an historian if a company tries to convince people that there is less danger in one product than another." said the industry witness.

Bad enough to have your witness get embroiled in the "beliefs vs. knowledge" debate -- but now he was commenting on the intention of tobacco companies to influence beliefs about harmfulness!

Mr. Lacoursière was sent out of the room while the industry lawyers attempted to block further questions on advertising. Having apparently run out legal reasons, Mssrs Grondin and Lehoux appealed to the unfairness of asking "a man of 81 years to comment on an ad he has never seen."  (Imperial Tobacco's lawyers were unusually silent throughout the day.)

This was the second time that an appeal to the witness' age has been made to block a question or comment from the plaintiffs side. Justice Riordan was not in the mood to tolerate such ageism. "Let me be clear. His age has NOTHING to do with the possibility of asking him a question and the professional requirements of his job. ... Je - rejette - les - objections! ".

Richard Pollay is endorsed - well, hypothetically at least

There was a hint that the last set of questions today may not have been planned far in advance -- Mr. Trudel found himself in the awkward position of asking Imperial Tobacco to provide a copy of his own history of marketing expert, Richard Pollay.

Mr Trudel wanted Mr. Lacoursière's opinion on Richard Pollay's views that advertising was designed to affect smokers' beliefs by providing "friendly familiarity,"  "reassurance" and "misleading" information.  If Mr. Pollay were correct, might that not affect common knowledge? 

Before these questions were answered, more objections had to be overcome - but this time they were from a witness who clearly didn't want to give his opinion and who said he didn't "like hypothetical situations."

Justice Riordan directed him to answer."You are an expert witness - he can ask you a hypothetical question. You are here to help me. You should accept the hypothesis and to respond to the question."

Mr. Lacoursière responded that for each of the three propositions - familiarity, reassurance, misleading -- there could indeed be an impact on common knowledge.

Tomorrow, Mr. Johnston will resume the plaintiff's cross examination. A discussion of the definition of class members is also anticipated.