Thursday, 20 June 2013

Day 156: The day before the summer break

The historian David Flaherty made his third appearance at the Montreal tobacco trials today.

His first - over a year ago - had been the initial first step in the plaintiffs' efforts to put on record the public remains of his quarter-century relationship with Canada's three large tobacco companies. (Mr. Flaherty's September 6, 1988 report on the Four Seasons Project is now Exhibit 1561).

His second appearance last month  was in his capacity as expert witness. On behalf of Imperial Tobacco, he presented his voluminous (literally!) report concluding that "Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds."  (Exhibits 2006320063.120063.220063.320063.420063.520063.620063.720063.820063.920063.1020063.11)

Although his testimony was mostly completed, Mr. Flaherty's third appearance was delayed to wait for Supreme Court to decide whether it would allow an appeal of Justice Riordan's decision to permit the Four Seasons report. When the highest court gave its thumbs down to the requests, Mr. Flaherty was scheduled back in.

Does anyone besides Bruce Johnston smell fish?

Bruce Johnston picked up his cross-examination, and seemed particularly interested in how Mr. Flaherty had prepared for his report over the decades. He focused on the guidance that Mr. Flaherty had received from legal firms in the U.S. and Canada and on the variances between Mr. Flaherty's two reports and between his his testimony and his reports.

Mr. Flaherty steadily defended his work, and especially his independence as a researcher. The fact that his clients had not provided him with internal documents did not mean that "blinders" had been placed on his research, he said. But he implicitly acknowledged that his report was incomplete, and that "a future historian would have a lot more material at his or her disposal" because the trial had made public information that his clients could have provided him with.

Nor did he agree with the suggestion that the "back story" of the industry's role in spreading disinformation about health consequences of smoking should form part of his analysis. In an impatient tone, Mr. Flaherty repeated his answers from last month -- that he had accepted a mandate, that he had negotiated the mandate, that if the list of documents he wanted for his research had been winnowed down, it was a result of his own research decisions.

He did not seem to see any contradiction between these statements and his report that there had been "a lot of give and take with the law firms I was working with."  Maybe it was just give and give. 

Mr. Johnston expressed some frustration that the plaintiffs had been unable to get a complete record of the reliance material used by Mr. Flaherty - i.e. the 11,751 documents collected by Mr. Flaherty and the other historians working on the project.

A final CD had been delivered only this morning, and Mr. Johnston seemed to be trying to find out of there was a significant reason for the delay. During this exchange Mr. Flaherty revealed that there was no index for his collection. It seems incredible to me that several historians working together over decades to compile a resource of primary material would not have needed an index, but there you go.

"A pretty smart fellow" if I say so myself

With Mr. Flaherty's 1988 report (Exhibit 1561) finally on the record, Mr. Johnston was able to ask the historian about some seeming inconsistencies between this early work and his later testimony. Mr. Flaherty had earlier testified that he never read any trial transcripts, yet in the 1988 he makes reference to reading the historical awareness testimony in the landmark Cipollone trial. "I misspoke," David Flaherty said simply today.

Mr. Flaherty sidestepped any implications that the similar wording between the conclusions he reached after 4 months of work and those he reached after 25 years of effort might be because these were foregone conclusions, or influenced by the lawyers he was contracted to.  He spoke instead with pride in his early research skills. I think I was a pretty smart fellow back then, given how little I knew at the time.

Nonetheless, there were differences between the two reports, and Mr. Johnston drew attention to some of those which now favour the tobacco industry position. One of these was the removal of his 1988 finding that warnings about smoking were "counterbalanced by efforts to discount these modern research studies."

Mr. Flaherty today said he had never believed what he wrote. "I should have written 'even though there was an effort to counterbalance'.. .. It has absolutely nothing to do with what I thought at the time."  He repeated his view that any attempts by the companies to diminish concerns about health had been "drowned out" - or were like a drop of water removed from a swimming pool.

Mr. Johnston asked him about material that had been omitted from his report -- like the secret industry science that had been made public in the book The Cigarette Papers. In the forward to that book, a former U.S. Surgeon General had lamented that a "wealth of .. important information the tobacco industry possessed" about the harms of smoking was withheld, and said this information, had it been known, would have saved lives.

Again, Mr. Flaherty seemed more intent on defending his scholarship than on elaborating his view of history. If he had thought it was relevant, "I would have put it in there" he said with a huffy tone.

True Magazine - inconsequential in Quebec

True Magazine - Exhibit 1237.

Robert Proctor called it one of the
most important denialist papers.
David Flaherty didn't think
it merited a mention
Mr. Flaherty's preoccupation with his scholarship was also echoed in his responses to Bruce Johnston's questions about the industry arranging for pro-smoking articles to appear in the once-popular mens' magazine, True.

Although Mr. Johnston was referring to an article from the 1960s (Exhibit 1237), Mr. Flaherty at first thought the article dated from the 1950s.

Low and behold there were twp such articles - one in the 50s and one in the 60s. Seeing reference to the 1950s article that was similarly industry-friendly, Mr. Flaherty seemed more relieved at not being caught out on a wrong date than at addressing the meat of the question -- whether such publications had an effect.

When pushed for a reason for removing reference to the article in his second report, Mr. Flaherty said it was his "personal experience and judgement" that led him to exclude these reports from his final report. Learning that it was a phoney article was not the reason this tawdry episode had been removed from his report.

"Clearly I didn’t think it rose to the level where it contributed to awareness of smoking and health in Quebec in 1968." ... "If you compare it with an article in Sélection or Readers Digest, it is inconsequential."

The re--examination

To date the only apparent role for Mr. Neil Paris on the vast Imperial Tobacco legal team has been to work with Mr. Flaherty, and it was his job today to reply to follow up on Mr. Johnston's questions. He took only a few minutes to do so.

He asked Mr. Flaherty to confirm that the individual papers, like the article in True Magazine, would not have changed his conclusions. But what about one hundred such articles?

"A hundred articles by the Surgeon General, yes," said Mr. Flaherty. "But a hundred articles by an author in a mens' magazine didn’t cut the mustard."

Mr. Paris tactfully asked his witness to confirm that their mutual client was not credible. Did you take into account the credibility of the Surgeon General? Absolutely.
The columnists? Yes.
The credibility of the tobacco industry? Yes.
It's fair to say that credibility assessments were built into your conclusion? Yes.

A logical conclusion

Exhibit 1546
Mr. Paris' last question to the witness was aimed at the bolstering honour of the many American historians who have worked with the tobacco industry. (The involvement of Canadian historians in support of the tobacco industry in this trial has recently drawn fire within the Canadian historical community).

He showed the witness the list of historians that from the critical review by (Exhibit 1546) that Mr. Johnston had profiled.

"Can you think of anything these historians would have to gain by compromising their standards?" Mr. Flaherty could not, and spoke highly of some historians on the list.

If not because historians working for the tobacco industry were overly coached by lawyers, then what other reason might there be "why a group of eminent historians might arrive at similar conclusions."

"It make sense to me that if you were looking at the same question with a similar set of news paper sources you might come to a similar set of conclusions," said Mr. Flaherty.

With that, he was thanked for his time, and invited to step down from the witness stand.

The road ahead --

In the afternoon, the discussion returned to unresolved issues on how the trial would proceed.

The exclusion of immigrant smokers

Justice Riordan had asked the plaintiffs to adjust their definition of the class of addicted smokers to disqualify all those who, because they were not living in Canada at the time, had started smoking cigarettes made by tobacco companies who are not involved in this trial. This followed concerns expressed by Simon Potter, who represents Philip Morris International/Rothmans Benson and Hedges.

Such an adjustment is in the companies' interests, as it would reduce the number of Quebecers included in the suit and, presumably, reduce any potential liability they might face. And yet -- to a tee - they all protested against Statistic Canada migration data being on the trial record after the plaintiff's proof had closed.

Justice Riordan was not sympathetic to their objections.

"I have the right to impose unilaterally certain restrictions on groups," he reminded them. He said that the "door was open about what evidence would establish" the changes. So far the companies have not provided a substantive response to the recalculation.

New expert reports

Earlier this year, Justice Riordan had authorized two additional expert witnesses on warnings. These reports will be filed before the end of next week.

He had also authorized Imperial Tobacco to conduct its own consumer survey, and had given the same deadline. Today, Deborah Glendinning said this deadline would not be respected, but that they still intended to produce such a report.

The reason for the delay, apparently, lay with Justice Riordan. "The judgments on our pre-defense motions have caused us some concern with exactly where we are on causation. Your reference to invoking presumption and other evidence that is unspecified is causing us to rethink how we formulate this evidence."

Imperial Tobacco will be asking for an extension, she said "not until we see what the class definitions will look like."   

Protecting class members from certain demands

Justice Riordan has previously ruled that the tobacco companies may not demand to see the medical records of the class members. Knowing that the companies will appeal his decisions on future such requests, he asked them to put a system in place so that these appeals were exhausted without delaying the trial.

Today there appeared to be agreement to do this through a test-case. A subpoena for records will be issued this summer, will be challenged by the plaintiffs, and will be debated in late August. Presumably Justice Riordan's ruling on these issues will wind their way through the upper courts over the winter.

Simon Potter, the witness

Mr. Potter was notably absent from the court today, as he routinely is when the issue of his testifying at this trial is discussed. (It was because his name again appeared on Imperial Tobacco's witness list that his testimony was bound to come up this afternoon.)

Justice Riordan said -- again -- that he does not want Mr. Potter to testify. He also signaled that he might not permit it to happen. "Calling an attorney is very exceptional. If there is any other way of getting the evidence in then I am going to require that you favour it."

The Schedule

On May 15, the tobacco companies were told to come back with a schedule that took up 175 days, and not the much longer trial they were seeking. (Imperial Tobacco wants leave to appeal this ruling, and the Court of Appeal will hear their request in mid September).

The revised schedule they circulated earlier this week did indeed come in within the imposed limit of trial days --- if only because they dropped from their estimate any provision for cross-examination and did not disclose how long they would need for class members. (The sequence of witnesses with the time the companies will require is shown below). 

Nonetheless, Justice Riordan did not look concerned. 

He began by complimenting the companies for being efficient with their witnesses to date. (I think he was looking at Suzanne "Speedy Gonzales" Côté as he said this). Their proof had been well organized, he said, and he was pleased with the way the exhibits had been prepared to allow for rapid processing. "I am comforted by this and it will influence my approach."

He repeated his preference for the companies to look for "admissions" as a way to reduce the time required for testimony. He warned that he would not accept empty days, and that the companies must avoid having holes in the calendar.

Deborah Glendinning said that their planning had been hampered by the unwillingness of many government witnesses to speak with them. Justice Riordan offered his help, and wondered whether the federal lawyers should be brought in to help in processing affadavits and coordinating with witnesses. 

The summer break

Justice Riordan, before thanking the stenographer and clerk for their work over the year, emphasized his concern about the length of the trial. "I realize it’s a great pleasure to come to Montreal and come to the 17th floor," he said - but "let's get this thing over." 

With that, the court rose for the summer. The next sitting day is August 19, 2013. Nova Scotia historian, Robert J. Perrins, will testify. 


Future tobacco industry witnesses 

Scientific Knowledge / Government Policy

Dr. Robert J. Perrins  (Expert witness) - 3 days

Imperial Tobacco Witnesses

Andrew Porter (Research) 3 days
Graham Read (Research) 3 days
Gaetan Duplessis (Research, Relationship with Agriculture Canada) 2 days
Michael Dixon (Expert witness, compesnation)  3 days
Andrew Chan (Marketing) 2 days
Jean-Louis Mercier 1.5 days
Anthony Kalhok (Marketing) 1.5 days
Ed Ricard  (Marketing) 2 days
Anne Boswall (Marketing) 1 day
Benjamin Kemball 2 days
Lyndon Barnes (Document Retention)   1 day
Simon Potter (Document Retention) 1 day

Rothmans, Benson & Hedges witnesses

Steve Chapman (product development) 2 days
Gary Black (Product development) 1 day
John Barnett (Corporate policies) 1 day
Other marketing 1 day
Other Executive 1 day

JTI-Macdonald witnesses
Peter Hoult   3 days
Ray Howie (Product design) 2 days
Robin Robb (Marketing) 2 days
Richard Marcotulio (Corporate and Smoking and Health) 2 days
Jeff Gentry (Product development) 2 days
Lance Newman (Marketing) 1 day
Guy-Paul Massicotte (CTMC, ICOSI; Corporate reorganization) 1 day
Mary Trudelle (Marketing  and public affairs) 1 day
Ian Walker (Youth Target Study)  ½ day
Michael Sauro (Compensation) ½ day

Health Canada witnesses

J.C. Robinson  1 day
W.H. Cherry ½ day
Monique Begin  2 days
A.J. (Bert) Liston 2-3 d ays
Perrin Beatty ½ day
Murray Kaiserman 2 days
William S. Rickert 1 day

Possible Health Canada witnesses

DM Bruce Rawson  1-2 days
John A. Bachynsky  1 day
J.L. Fry 1 day
David Kirkwood 1 day
Maureen Law  1 day
Benoit Bouchard  ½ day
David Crombie  ½ day
Neil Collishaw 1 day
Others to be determined

Agriculture Canada
C. Frank Marks  2 days
P. Wade Johnson  2 days
R.S. Pandeya 2 days
J.M. Brandle 1 day
Brian Zilkey 2 days
Dr. Yvan Martel 1 day
Others to be determined

ITL Leaf

Graeme Boswall 1 day
Howard Goode 1 day
Ron Bandur 1 day

Expert Witnesses

James Heckman (Advertising, statistics, lack of impact on class members( 2 days
Richard Semenik (Marketing) 2 days
David Soberman (Marketing) 2 days
Alexander Goumeniouk (Addiction) 1 day
Kieron O'Connor (Addiction) 2 days
Dominique Bourget (Addiction) 2 days
John Davies (Addiction) 2 days
Laurentius Marais (Epidemiology, Statistics and causation) 3 days
Bertram Price (Epidemiology) 2 days
Kenneth Mundt (Epidemiology) 2 days
Sanford Barsky  (Disease, individual assessment) 1 day
Dale Rice (Disease, individual assessment) 1 day
Two  warnings Experts - 4 days
Possible Consumer Survey Expert - 2 days