Thursday, 16 May 2013

Day 144: Some unbelievable coincidences

The May long weekend has arrived. It is called Victoria Day in most parts of the country, but for the past decade it has been known as National Patriots Day in Quebec, where the tobacco class actions have just finished the first week of hearings on the "defence proof."

My bet is that very few lawyers active in the file will be able to enjoy the spring weather, but will instead be caucusing about how to adjust to the developments of this most interesting week.

The end of the line for witness, Jacques Lacoursière

During the first part of the week, there were more than a few expressions of sympathy/pity directed by the lawyers representing Rothmans, Benson and Hedges and JTI-Macdonald towards their first expert witness, the popular historian Jacques Lacoursière.

"An elderly person," "a man of 81 years," "he is tired," the judge was given as reasons to prevent certain questions being asked of him, or to interrupt the cross-examination with an overnight break.

Even observers from the health community expressed sympathy this morning at sight of this diminutive man with thin white hair sitting alone and seemingly lonely during the morning break. His stammering short replies and reliance on written notes made it sound like he might be suffering from a surfeit of "senior moments."

But as the day progressed, and the plaintiff's lawyers racked up several more damning statements from one of Quebec's better known historians, I could not help but feel that some sympathy should be extended to the companies who had this man appear as their opening act.

The continuation ....

Mr. Trudel resumed his cross examination from yesterday, maintaining a focus on shaking confidence in the witnesses' conclusion that in recent decades it was impossible for a Quebec smoker not to have known about the risks of smoking. 

In the course of answering these questions, Mr. Lacoursière revealed much about the influences that helped shape the report and those that were held off. In doing so, he left the impression that his own understanding of the social factors that influence knowledge and beliefs was weak, and that the influence on his report by historians hired by the litigants had been very strong.

Alone in his thoughts

Mr. Lacoursière is only one of 4 historians who have been hired as expert witnesses in this trial. (The other 3 are David Flaherty, Robert Perrins and Robert Proctor),

Mr. Trudel wanted to discuss with him his views on the conclusions of the other experts. The problem was that Mr. Lacoursière had decided not to read this material because he "had his own view" and "thought it would be better not to be influenced by others."

Nor had he read published reports on the historial reviews in other trials which supported "common knowledge" defence in tobacco litigation. [I am grateful to a reader for providing links to two such reports - 1, 2 ].

It is not very often that a man who is addressed as "professor" admits to not wanting to read the research of colleagues in his own field of study. And it seemed even more at odds with the statement in his expert report that he had since his student days "kept information on tobacco, every time I found it, because this affected the everyday life of people."

Justice Riordan also seemed perplexed. He commented that scholars often influence each other, and asked the historian whether it was just with respect to tobacco that he took this approach, and whether he generally read what his colleagues wrote.

"Je reste isolé dans mes pensées," said Mr. Lacoursiere. I am alone in my thoughts.

But not alone in the work

But a few minutes later, Mr. Lacoursière revealed that he was actively engaged with other historians in the course of this paper. In addition to the work of the UQAM historian (José Igartua) who he said had been recruited by the tobacco companies to supervise the collection of many thousands of newspaper stories, he had done his own recruitment of a University of Laval historian, Marc Vallières.

The information came to light when Mr. Trudel asked whether an attempt had been made to count the number of news articles on the topic in a given period, information which was suggested but not detailed in paragraph 61 of his report. ( Exhibit 30028.1). "Yes," replied the witness, identifying Mr. Vallières as the researcher on that project.

Marc Vallières,  historian and one of at
least 7 Quebec historians contributing to the trial 
This seemed to take Mr. Trudel by surprise - for as it turned out, he had requested such information from RBH counsel, Jean François Lehoux, and been told that it did not exist.

JTI-Macdonald counsel, Francois Grondin, stood quickly to declare that this other research was covered by litigation privilege. Other objections were made that it was not relevant.

Justice Riordan's exercise to untangle the facts that would let him rule on the objections created a mini-drama at the beginning of the day. Mr. Trudel read aloud (a little too quickly for these fingers to both transcribe and translate) Mr Lehoux's e-mail, which to these ears sounded like a denial of the existence of any such report. (Mr. Lehoux pointed the finger at Mr. Lacoursière for the content of the e-mail!)

The background provided by Mr. Lacourcière to Justice Riordan changed during its telling. At first, he said he had contacted Mr. Vallières in 2010, but when it was established that the threshold date in question was the completion date of his expert report (in December 2010), he changed his mind and said it was actually in 2011 that he had asked Mr. Vallière to conduct this work. Mixing up dates is easy to do - even for historians!

Seeing where the ruling was going, Mr. Trudel withdrew his request for the document. But the inconsistency between the explanations of the JTI and RBH legal teams -- was it litigation privilege? or something under Mr. Lacoursière's control? -- and the unexpected but convenient mix-up over dates set a tone of suspicion that lingered throughout the morning.

Common knowledge in a heterogenous society

Robert Proctor (Exhibit 1238) detailed substantive concerns about Mr. Lacoursière's approach, and the inadequacy of merely cataloguing news stories that did not take into account other factors that influenced individual and social views.

Philippe Trudel pursued this line of criticism as he asked the witness to reflect on differences in knowledge of Quebecers of differing ages and social classes, of different diseases and at different points of time. He pointed to other factors that might influence opinion, like the role of the companies in fuelling the "scientific controversy" and asked whether this might not have contributed to the reception of information about the risks of smoking. Mr. Lacoursière mostly side-stepped these questions by referring to his lack of competence in medicine or science.

Conveniently missing information 

The file of 20,000 news and other reports which formed the reliance material for Mr. Lacoursières report have been put on the trial record. (Cataloguing these documents is a daunting task, and a way has not yet been found for them to be made readily available to the public.)

It turns out that these were not quite as comprehensive a set of clippings as first presented. They failed to include years of reports from the right-wing working man's tabloid, Montreal Matin. Mr. Lacoursière today described the paper today as "very favourable to the tobacco companies." 

The articles which were not included in his reliance material but which were found by the plaintiffs team in the local library would have contributed little to informing Quebecers that smoking was dangerous, and would seem more likely to contribute to misinformation. One implied that tobacco companies were the ones with knowledge about smoking and health, another described a landmark study on Canadian veterans and lung cancer as "an insult to statistical sciences," and a third promoted the idea of smoking in moderation.

Another document seemingly missing from the reliance material was an editorial from a paper at the opposite end of the journalistic spectrum from the now-defunct Montreal Matin. In 1969, the Montreal Devoir  took an editorial position that dumped on the scientific evidence that tied smoking to disease. It talked up the idea that air pollution, urbanization or even changes in the level of fat in milk might be the culprit behind increases in lung cancer.

How was it that this article had been missed in his report? Mr. Lacoursière pointed the finger at Mr. Igartua, who had been recruited by the lawyers to supervise the review of that paper.

The cross examination by Bruce Johnston

When he stood to ask a short set of questions, Mr. Johnston maintained the same laid-back and unruffled tone that had been set by his colleague over the past two days.

But, if anything, his questions were tougher - and they were aimed not at Mr. Lacoursière's conclusions, but at his integrity.

Mr. Johnston began by asking the witness whether he had received any help in preparing his report. "No." Did you have notes from anyone? "No." Did he personally prepare the summaries of news-reports? "Yes." Was he sure? "Yes."  

So why was it that the summary phrase for a Reader's Digest article (a magazine that Mr. Lacoursière said he had personally reviewed) was word for word identical to that on the cover sheets that he said he had no hand in drafting? The two identical phrases were read to the court.

Bruce Johnston: Why is the formulation the same?
Jacques Lacoursière: It is the same formulation.
Bruce Johnston: Can you explain why?
Jacques Lacoursière: Probably the person came to the same conclusions
Bruce Johnston: In the same way?
Jacques Lacoursière: With the same words!

Yesterday, Mr. Lacoursière had been asked to explain how it was that stories from the Financial Post in the 1960s had been caught in his research net when that paper was not included in the study design. (He said that he had read them by chance 40 years ago, and had just happened to have kept them).

Lo and behold! Mr. Lacoursière had also described this ancient Financial Post story using the identical words that were on the cover sheet prepared by someone else.

As he sat down, Mr. Johnston put a rhetorical question on the record. "How is it that the words can be exactly the same as those which you put in your report." 

Francois Grondin, the lawyer for JTI-Macdonald, conjectured that the research notes might have been prepared after Mr. Lacousière's 2003 report. Mr. Lacoursière's reputation for honesty might be helped by the companies being able to substantiate the unusual sequence of research notes being drafted at the end of a project.  

And Justice Riordan's inquiry

The last question to this witness came from the judge, who wanted to better understand how advertising might influence "common knowledge" about smoking and disease. Mr. Lacoursière's final answer brought smiles to the plaintiffs' side of the court.

Justice Riordan: Are you saying that advertising has no effect?
Jacques Lacoursière. It could have an effect, but because I am not an expert I cannot say whether or not it does. But the manner in which advertising happens is very seductive. That's the least I can say.
Justice Riordan. I think we will leave it there.

Abuse process? Not me! or me! or me!

In his scathing ruling issued on Wednesday, Justice Riordan justifies his decision to limit the time permitted for the companies to present their defence proof to 175 days (125% of the time taken by the plaintiffs) by describing the companies proposal for 300 trial days as "excessive and unreasonable to the point of being abusive."

It would appear that these words stung, and that some professional reputations felt besmirched. Lawyers for the companies who have adopted the view that "we all hang together or we will surely hang separately" today expressed their unhappiness with being 'hanged together'.

Simon Potter (RBH) was the first to stand and ask permission to make "a speech." Mr. Potter makes lots of speeches in this trial, but most of them are extemporized. It was quite unusual to see him reading from notes, which he had by inference rehearsed and which he had timed to 6 minutes.

In a tone of voice more reminiscent of a solemn church reading than his usual flamboyant oratorical style, he asked Justice Riordan to withdraw the opinions expressed in his ruling, even if the time constraints remained in place. He said that an injustice had been done to Rothmans, Benson and Hedges, which "did not deserve a single one of the critical statements in your opinion."  He took a few swipes at what he saw as excesses from the plaintiffs team, and protested the idea that he might have to "squelch" his preference for an expert witness in favour of those chosen by his colleagues working for other firms.

He hinted that the ruling was causing him some trouble - " I am sure you will understand that my client is asking me some very difficult questions".

Suzanne Coté represents Imperial Tobacco, whose legal team insists on sitting at the front of the courtroom (as the default leader of the defence), and which demonstrably has used up most of the air time in objections, and most of the court time in arguments and appeals. "You were very harsh on the client, ITL" she said.

She was clearly stinging from the word abusive being recorded "'in a judgement of the Superior Court! ... Suzanne Cote does not accept it because Suzanne Coté is not abusive!" 

She claimed that the companies could have and would provided a more acceptable option. "We are reasonable. Let us talk and come back with something."

Guy Pratte (for JTI-Macdonald) said he wanted to be able to "calmly and serenely" review the opinion and perhaps discuss it next week. He expressed concerns that the ruling "levels against me and people from my team ...the most serious charge that can be levelled – that of abusing a court's process - a court to whom I owe my highest duty." 

When the court resumed after lunch, Justice Riordan promised that he "would take time to reflect - we will talk next week."

I think there will be a lot of eyes on this discussion. In his ruling, the judge seems to draw a line past which the manoeuvres by armies of lawyers hired by deep-pocketed clients become a misuse of public resources.

More on class definitions and other important words

In the afternoon, the court returned to tinker with the wording proposed by the plaintiffs to respond to Justice Riordan's concerns about ambiguity and clarity. For over an hour, the companies provided their new and renewed objections.  

During the discussion, Justice Riordan revealed that he does not consider cancer of the oral cavity to be included in the Blais class, and he urged the companies to see the advantages to their case of having the definitions tailored to the evidence at this point of the trial.

Monday is a holiday. On Tuesday, Mr. David Flaherty will make his second appearance at this trial - this time as an expert witness.