Tuesday, 21 May 2013

Day 145: Four Seasons later, David Flaherty returns

Fifty-three weeks -- a full four seasons -- have elapsed between historian David H. Flaherty's first appearance as a witness in the Montreal tobacco trials and his second appearance today as an expert witness for Imperial Tobacco Canada Ltd.

The long gestation of an expert report 

Some might think that a year is a long time to wait for a court appearance, but for Mr. Flaherty this is but a fraction of the 26 years that have passed since he began to prepare to testify in tobacco lawsuits.

It was his Western University school mate and RJR-Macdonald lawyer, Earl Cherniak, who recruited this University of Western Ontario history professor as far back as 1987.

"It took some winnowing down," Mr. Flaherty said today, "but gradually I learned that the three law-firms wanted to learn what Canadians had been told over time."  

For 20 of the next 26 years, Mr. Flaherty continued to be engaged in the research about "awareness" of tobacco's harms. (He downed tools between 1993 and 1999 when he held the position of Information and Privacy Commissioner of British Columbia).

He never once published his research findings outside of his reports to the tobacco companies.  He explained today that this was because "I knew that eventually I would get to be an expert witness." 

The Four Seasons Project

Although this trial has learned of the companies' early efforts to prepare against liability litigation (Exhibit 40),  one of the key documents -- an early report from Mr. Flaherty to the "Four Seasons Project" - has yet to become an exhibit.

It was in connection with this report that on Day 29 of the trial, Mr. Flaherty was asked to testify so that his report could be put on the trial record. Well, it turned out to be a little more complicated for that. First the plaintiffs had to overcome the companies' objections that the report was covered by various forms of legal privilege - a barrier overcome fairly quickly.

Two days later, Justice Riordan dismissed the objections of the companies, poetically comparing their concerns to the "falsely pious modesty" of Molière's hypocritical impostor, Tartuffe. He said it would be "absurd, and tend to make a mockery of the process" if he were not allowed to read the document "while everyone else in the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries," as a result of it being legally available on the Legacy web-site.

The second hurdle took a little longer. It took until last December before Quebec's Court of Appeal dismissed the companies' appeal of Justice Riordan's decision to dismiss the objections.

The third and final hurdle is yet to come. The companies have asked the Supreme Court of Canada for leave to appeal. At some point soon, a decision will be made to let the Appeal Court ruling stand or to allow a Supreme Court hearing on the issue. (You can follow developments here)

One hundred and four seasons later

Compared with his 1988 draft, the report prepared by Mr. Flaherty for this trial (Exhibit 20063) is an enormously expanded research effort which is tailored to the geography (Quebec) and time period (1950 to 1998) relevant to these class actions. From the original 45 pages, it has has ballooned into a 900 page effort which includes 10 appendices of summary text. It is based on a review of over 11,000 news reports.

The appendices include helpful timelines of key events, and summaries of news reports or other public material which are grouped by source.

Exhibit 20063.2 Part 2 Quebec Opinion 1950-54;
Exhibit 20063.3 Part 3 Quebec Opinion 1955-59;
Exhibit 20063.4 Part 4 Quebec Opinion 1960-64;
Exhibit 20063.5 Part 5 Quebec Opinion 1965-69;
Exhibit 20063.6 Part 6 Quebec Opinion 1970-74;
Exhibit 20063.7 Part 7 Quebec Opinion 1975-79;
Exhibit 20063.8 Part 8 Quebec Opinion 1980-84;
Exhibit 20063.9 Part 9 Quebec Opinion 1985-89;
Exhibit 2003.10 Part 10 Quebec Opinion 1990-94;
Exhibit 20063.11 Part 11 Quebec Opinion 1995-98

Same substance as last week ....

Mr. Flaherty's report is, like that of Mr. Lacoursière last week, essentially a a summary of news reports over almost five decades.

Some of his conclusions are also almost identical to those of last week's witness. By the late 1950s, he writes, "[I]t was almost impossible for an adult in Quebec, Francophone or Anglophone, Roman Catholic or Protestant or Jewish, urban or rural, not to be aware of the issues surrounding the health risks of smoking." And by the end of the 60s, "a resident of Quebec would have to have been living in isolation not to be aware that smoking cigarettes was a serious health risk."

But Mr. Flaherty goes one step further, finding that Canadians were likely to be the most informed of any in much of the western world. "In my view, Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds. Canada's unique makeup meant that health warnings and related information came from British, American, French, and Canadian sources."

Like Mr. Lacoursière, Mr. Flaherty included the public statements of the industry and others who objected to conclusions that smoking caused disease. These two expert historians also made the same decision to cite advertisements for stop-smoking medications as support for the idea that smoking was known to be addictive or habit forming.

Mr. Flaherty, too, decided to exclude most tobacco advertising from his review. Although it was in his initial proposal, he said it "was something debated back and forth with the lawyer clients."  He suggested that Canadian ads were less relevant than their U.S. counterparts.  "In Canada what I found was relatively boring advertising with the name of the product, the name of the company, a pretty picture of some sort."

... but very different style

Although the scope, structure and conclusions of Mr. Flaherty's report seem very much an English version of Mr. Lacoursière's, the differences between their courtroom appearances are vast.

ITL's latest
courtroom addition,
 Neil Paris
Some of the differences is apparent in the lawyers asking the questions. There was (another!) new face on the Osler/Imperial Tobacco bench this morning, Mr. Neil Paris.

Mr. Paris' steady flow of straight-up questions was matched by Mr. Flaherty's steady and straight-up answers.  Unlike the situation last week, the two men looked comfortable with each other and with the material they were discussing.

The reports of Mr. Flaherty and Mr. Lacoursière go beyond mere team-work. They drew on the efforts of historians like Professor José Igartua, who had once occupied the office next to him at the University of Western Ontario and who remains his friend. In addition to the graduate students hired by Mr. Igartua, there was Mr. Flaherty's own graduate student from long ago, John Swainger. (He now teaches at the University of Northern British Columbia.

In addition to the reports "spun" from microfiche and collected by this team, many of the clippings came from Imperial Tobacco's files and those of the CTMC.

Despite the work being spread to so many people over so many years, Mr. Flaherty exhibited his own command of the material in the report.

By the end of the day, it felt like 18 years had passed

It would appear that Mr. Flaherty will be asked to comment on all - or nearly all - of the 200 news reports which were selected as "highlights" from the material which formed the basis of his report. This is a slow process that verged at times today on the tedious.

With scarcely an interruption from the plaintiffs or a question from the judge - and no indication that they would pick up on cues to speed things up a little bit - the lawyer and witness began at the 1950 beginning and methodically worked down the list.

Although this was not a lively presentation and went over material that is by now well known, there was some information that was new to the trial, and some interesting perspectives put on record.

Mr. Flaherty spoke, for instance, of the political mindsets of some of the major figures, like Alton Ochsner (highly conservative) and Richard Doll ("at least a socialist"). he said that until the 1960s, many of those who raised the subject of tobacco's health effects were relegated to the fringe. "Most physician member of the establishment were smokers. They were reluctant to accept these theories that smoking caused lung cancer."

His presentation relied heavily on the Readers' Digest and its Quebec equivalent, Sélection as well as the brief news reports in Time Magazine's medicine column.

He showed the French version of the famous "cancer by the carton" story of 1952, as well as a series of reports by Lois Mattox Miller and James Monahan. He stressed that the large circulation of this magazine in that era, its inexpensive reprints, its editorial position against tobacco and its wide availability in barber shops and waiting rooms would have meant there was a high impact by these stories on public knowledge.

"They were on the side of the good guys as it turns out," he said of Reader's Digest in the 1950s. I wonder how the other guys felt about that comment....

It was in the 1960s, he said that Canadians received a "deluge of information" as reports on the Royal College of Physicians conclusions and the Canadian Veterans study were circulated. Government was changing its approach and in 1963 Judy LaMarsh became the first Minister of Health to initiate a government response to the tobacco problem.

But it was the U.S. Surgeon General's report in January 1964 that Mr. Flaherty said received an intensity of press coverage on tobacco and health that has not been seen before or since. "That's why I regard it as a seminal report for awareness of smoking in Quebec. By the mid 1960s it is everywhere. It is impossible for people in Quebec not to be aware, in one way or another."

And as for the industry denials contained in those reports? Mr. Flaherty said that these comments were "drowned out" by others' perspectives.

He also provided insights that were not included in his report. He said that "one of the great fears of the elite was that there would be a dramatic reduction in excise tax" if people stopped smoking. He said the Canadian tobacco companies "sat back" and "took a much less activist role" than the American industry, and that they were "listened to with respect" by government as a result of their contributions to government coffers. Who knew?!

As the day drew to a close, Mr. Flaherty's chronology was coming up to the end of the 1960s. Perhaps tomorrow we will pick up with events from the 70s that are only 40 years old.

After a weekend's serene reflection

As promised, Mr. Guy Pratte returned with additional concerns to express in response to Justice Riordan's case management decision last week that limited the defence proof to 175 trial days and disallowed the  scheduling of class members at the end of the trial.

Mr. Pratte was overtly deferential in tone in asking Justice Riordan to reconsider his decision today, as he had been on Friday. But the substance of his arguments - to my ears - had a threatening undertone, iin suggestions that Justice Riordan had erred and had displayed partiality.

He said that last week's ruling was "premature." There had been inadequate notice to the parties and a failure to hear the parties in respect that there had been abuse in the past and might be in the future. He stressed that as each defendant is being sued separately, and will be ruled on separately, each of these "fierce competitors" required the ability to set their own case. The court should not interfere in the manner or sequence of defence witnesses, he said.

He pointed to the fact that the plaintiffs had not been limited, and had extended the time they took to present their case from its original 87 days to over 135 days and had made mid-trial adjustments to their witness list. In case this point was lost, he later returned to the judge's "duty of impartiality."  (The court transcript does not well record the many times Justice Riordan gave the plaintiffs the hairy eyeball, hastening the departure of some witnesses, nor does it show the particular resilience of the lawyers in the defence's drivers seat to hints and suggestions sent to them from the bench.)

Mr. Pratte concluded by asking that Justice Riordan issue a revised management decision that requires the companies to prepare a revised witness schedule by the summer break. The defendants could set a target date, he said, and regularly update the court on how they were doing. 

By characterizing the ruling as a "cri de coeur that has not fallen on deaf ears,"  Mr. Pratte suggested the defence would make some adjustments, but I didn't hear anything that suggested that getting information from the companies about the months ahead would be any less like pulling teeth. And although he began by saying he did not object to a deadline being imposed, by the end of his speech it was far from clear how such a thing could happen under his proposal.

Stay tuned for more rounds in The Defence vs. the 175 day Trial Schedule.

Tomorrow and Wednesday, the testimony of Mr. Flaherty will continue.