Thursday, 23 May 2013

Day 147. History will be kind to them, for they intend to write it

This morning, when the retired history professor, David Flaherty, resumed his presentation to the court where the Montreal tobacco trials are being heard, there was very little remaining in his expert report to be discussed.

His clients' lawyer, Neil Paris, lead him through the last whistle-stop in his 5-decade review of the history of tobacco and health in Quebec as told through newspaper and magazine reports. The period discussed today was the 5 years leading up to the launch of the two class actions, in 1998.

There were lots of Big Events during this period, and Mr. Flaherty briefly touched on them all: the narrowly split decision of the Supreme Court of Canada to strike down the Tobacco Products Control Act, the development of its replacement legislation and the public debates over whether Formula 1 and other sponsored events should continue, the emergence of new tobacco control organizations in Quebec and the enactment of Quebec's own tobacco law.

His review ended in 1998. After slightly more than two days' testimony, Imperial Tobacco's lawyer and expert witness had arrived at the end of their road. Mr. Paris invited his witness to "sum up" and the conclusion of his report (para 173 of Exhibit 20063) was read into the record.
"The evidence is incontrovertible that the overwhelming message communicated to the Quebec population was that smoking caused lung cancer, as well as a multitude of additional adverse health consequences."
Before releasing his witness to the plaintiffs' team for cross-examination, Mr. Paris turned to the issue that had hung over the report since the appearance of the plaintiff's rebuttal witness last December -- the stinging criticism of Mr. Flaherty's methods by Stanford history professor, Robert Proctor. (Exhibit 1238)

Mr. Paris asked whether Mr. Flaherty had read the rebuttal report, and invited the witness to contrast his own research approach with that of Mr. Proctor.  At this point that the tone of Mr. Flaherty's remarks shifted and the affable history guide gave way to thin-skinned academic.

"Simply put, it is my judgement as a professional historian that in the report he wrote and in the book The Golden Holocaust he is writing what a British reviewer called advocacy history...

I am disappointed, to say the least, that he seemed to pay no attention to the work that I did but had the temerity to dismiss it as a largely clerical exercise. ... I am surprised he found his way to Canada, he knows so little about [it]. 

"He has an idée fixe on the American industry which he has transported onto the Canadian industry."  .. There is no evidence he actual read [my evidence] because he never quotes it. I say again that this is not how professional historians work."

The cross-examination

In the large legal teams that are on both sides of these lawsuits, there are certain lawyers who are selected for the most adversarial cross-examinations. For the plaintiff's side today, this was Bruce Johnston.

The transcripts capture the words (way better than I was able to do this week, with a soft-spoken, fast-talking witness and an uncooperative sound system), but they do not record the body language, tone of voice, facial gestures and other means by which lawyers can increase the impact and intimidation of their questions. (I think the black robes add considerably to the intimidation factor!).

Although they share some of the same tactics (beginning by pointing out small errors - even inconsequential ones - seems to be a favoured way to try to tip a researcher's equilibrium) each of the lawyers has their own style. Bruce Johnston today chose to put a few central questions to Mr. Flaherty and to squeeze down on them, vice-like, to force out answers. He kept hammering at the key points until they were firmly nailed in.

This week, Mr. Flaherty presented himself as not just a bona fide professional historian, but also a good one.  Although much of his work is in non-academic fields, he clearly remains proud of his academic accomplishments and was defensive of suggestions that he had made research errors.

Mr. Johnston focused his questions on the fault line between Mr. Flaherty's pride as a professional historian and his contractual role as a consultant. Not good enough to measure this expert report against the mandate provided by the tobacco companies - it should be tested against the standards of good historical research.

As a good historian, why had he measured what people had been told, but failed to explore what they believed? Why had he ignored so much primary source material? Failed to build on the work of other historians in the field?

And why had he allowed the tobacco companies to shape his research over two decades and turn him into a cookie-cutter industry witness?

Historical Standards

During his cross-examination of Robert Proctor, JTI-Macdonald counsel Doug Mitchell had shown the the "Statement of Standards" of American Historical Association (Exhibit 40024) to try to illustrate what he saw as a gap between Mr. Proctor's research approach and the norms of historical practice.

Mr. Flaherty seemed unaware of this previous exchange, and the poetry of Mr. Johnston using it in his own examination of a defence witness was lost on him.

Surprisingly, perhaps, he was completely unfamiliar with the document itself or any of its earlier versions. Perhaps conduct codes are not as common for historians as they are for other professions.

He bristled sarcastically when asked to agree with some of the passages. "I'm enjoying this lesson in integrity and ethics! It should happen to every elderly historian."

These principles -- the standards of what constitutes good  history -- were the foundation for most of the Mr. Johnston's questions over the day. Highlighted was the assertion that historical interpretation should evolve in response to the growth of secondary literature that "places those documents in a larger context." 

Primary sources ignored

Mr. Flaherty opened himself up to focused questions on the primary sources he ignored (his report only looked at the publication record) when he spoke of a "fascination" with former Imperial Tobacco president, Paul Paré. "I wanted to be able to report on how his views on smoking and health evolved over time."

If that is so, then why did he not look into memos, letters and other primary sources to "understand him better." The witness stressed that as a consultant he did not go beyond his mandate given to him in litigation, and rattled off a number of legal files he had been involved in where he had also kept to the narrow scope of his contract.*

It was not even that he would have had to ask Imperial Tobacco for records on the object of his fascination, as there are hundreds available on the Legacy site. But although he was aware of the Legacy site and had used it, he had not looked for any internal industry documents. "I primarily used Legacy to read the work of Robert Proctor."

Also conspicuous in its absence from his report was any reference to tobacco advertising. (It was, he reported, included in his late 1980s original research plan, but after discussion with his clients it had been dropped).

He said today that "the probative effect of the information" added nothing. Even quantifying the number of that people saw the health warnings in ads was not relevant, he said, as it only contributes to knowledge in a "in a repetitive way." 

As with the Legacy documents, he would not have had to go far out of his way to put his hands on advertisements. Many had been collected by the students who "spun" the microfilmed records and produced the photocopies that were sent to Mr. Flaherty. But when he reviewed these documents, Mr. Flaherty "got rid of them" as he wanted to get "to the meat and potatoes."

It was not, he agreed, that he thought advertising was not relevant. In fact he gave a shout out to the plaintiff's marketing expert, Richard Pollay, whose understanding would "be much more informed, must more learned, because he's a specialist in history of advertising."  

Secondary sources 

Perhaps because Mr. Flaherty was so strong in his views against Robert Proctor, that Mr. Johnston focused instead on the work of three other American historians who had studied the tobacco industry.

Their publications were among the material that Mr. Flaherty said he collected and that "as a good historian" he read. He said he received help from another historian in keeping track of new publications in tobacco issues and had collected"hundreds of articles" and books on smoking and health and.  "I have read a lot." 

He singled out Richard Kluger (who wrote Ashes to Ashes) for praise. "He is an example of a remarkable journalist, a non-professional historian who writes terrific work. He's really on top of the primary materials and I respect his judgement."

Mr. Johnston showed him Richard Kluger's conclusion that the industry used its power and money to generate a scientific controversy.  Mr. Flaherty did not contest his conclusion with regards to the U.S. industry, but felt it did not apply to the Canadian companies, which, he said, took more "supportable positions." 

For many minutes, he was pressed by Bruce Johnston to produce an example of a more "supportable position." Mr. Flaherty offered a range of replies, some of which were strikingly odd. He likened the situation to the Catholic church, which has views "that we all know are a bit odd" but nonetheless "stick to their guns." I could not see how his tobacco examples -- like a report on Rothmans' president saying that most smokers do not get lung cancer - helped his point.

Another historian respected by Mr. Flaherty is Harvard professor, Alan Brandt, who wrote "The Cigarette Century" and who testified in the DOJ/RICO case. Mr. Johnston drew attention to Mr. Brandt's similar conclusion that tobacco companies sustained an artificial scientific controversy, and that they did so in order to keep people smoking.

Why was this idea not reflected in Mr. Flaherty's research - not even as a hypothesis? After all, much of what Canadians were told about tobacco came from the American companies and their trade associations, according to Mr. Flaherty's report.

It wasn't relevant, Mr. Flaherty suggested. Canadian readers would have distinguished between American and Canadian spokespeople when they were reading these news stories.

It was the third historian introduced during the day that caused Mr. Flaherty the most discomfort.

A parade of near identical defence historians.

Towards the end of the afternoon, Mr. Johnston asked Mr. Flaherty about an analysis prepared by American historian Louis Kyriakoudes (Exhibit 1546) of the historians who had testified on behalf of tobacco companies in the United States.

Mr. Flaherty had read the paper, and was clearly not comfortable with its conclusions. He spoke scornfully about the author -- "This author is casting aspersions on a lot of talented people with much more important reputations in American history than Louis Kyriakoudes who teaches at the Department of History at the University of Southern Mississippi." (His tone emphasized that there was something highly undesirable about the University of Southern Mississippi).

Nonetheless, this paper was the basis for a prolonged exchange between Mr. Johnston and Mr. Flaherty. When the witness resisted providing clear answers, Mr. Johnston brought in additional texts to push home some points.

By the end of the discussion, Mr. Johnston had established that Mr. Flaherty's testimony was a close fit with the pattern of U.S. industry witnesses.

* Received assistance and support by the Special Trial Issues Committee /Allen Purvis and Jan Johnson. Check
* Recruited without prior expertise in the history of science or medicine. Check.
* Testified using a definition of common knowledge as something that is cumulative over time. Check. 
* Used an idiosyncratic definition of common knowledge, not one supported by literature. Check.
* Excluded industry documents that are available on line (i.e. Legacy). Check.
* Used surveys like the Gallup Poll, but avoid industry survey research. Check.
* Used primary material provided to them by the industry. Check.
* Focused in their testimony on news coverage between 1950 and 1964. Check 
* Described events during this period as "deluge" of information. Check.
* Minimized industry's role in fueling the controversy. Check.
* Claimed the industry's voice was weak and inconsequential. Check.

By the end, even the witness acknowledged the obvious.

Mr. Flaherty. There's a lot of coincidences here, aren't there?
Mr. Johnston. There are, yes
Mr. Flaherty. Yes.
Mr. Johnston. I would say.
Mr. Flaherty. Mine are totally accidental, may I say.
Mr. Johnston. Okay.

With that, the day's questions were over.

Mr. Flaherty's return will not be scheduled until after the Supreme Court has decided whether or not to hear an appeal related to a ruling of Justice Riordan that these early reports are not subject to privilege.

Next week, Raymond Duch will be the third industry witness to testify about public knowledge.

*(His revelation that he "regularly get[s]s mandates from Health Canada" might cause the government some embarrassment, given that they have a treaty obligation to avoid such conflicts of interest).