Tuesday, 27 August 2013

Day 161: Therapeutic objections

To access trial documents linked to this site, see note at the bottom of the post.

You could almost hear the mental chess board being re-arranged yesterday when Justice Riordan broke it to the plaintiffs that they could expect no reciprocity in the kinder-gentler treatment extended to the tobacco companies' exhibits over the first months of the "defence proof".

"Although one side accepts a modus operandi which seems to them to be logical and practical even if does not strictly follow the rules and procedures, it is still difficult to impose it on the other side without their consent. That is my problem. That is my situation," he said.

Thousands of exhibits have been introduced to the trial by the companies over the past few months. The exact number is still a little mysterious, as the indexing can't keep pace with the volume, but there are already more than 22,000 exhibits on the exhibit database.

At times, batches of documents numbering in the dozens or even hundreds have been entered in one fell swoop, each having been given a pre-assigned exhibit number. This new process was encouraged by Justice Riordan at the beginning of this year, and is an obvious time-saver for everyone.

But a significant asymmetry in the new approach was revealed following cross-examination last week of JTI-Macdonald's historical witness, Robert Perrins. No matter what the companies' lawyers had been able to do earlier in the trial. What did matter was that Justice Riordan could not take away the companies' right to deny consent.

Like a game of snakes and ladders, the plaintiffs found themselves back where they began - having to satisfy the time-consuming procedural hoops used earlier in the trial. Moreover, by having consented to the industry's fast lane, they had created a one-sided trial record of objections and rulings on these issues.

Yesterday's reminder from the Judge seems to have been a turning point. This morning the plaintiffs came to court with a new game-plan. For today, at least, they would try to remedy the situation with what André Lespérance called "therapeutic" objections.

The best laid plans

The witness scheduled to testify for the bulk of this week is the mild-mannered scientist, Andrew Porter. His testimony is a way for his former employer, Imperial Tobacco, to provide a counter-narrative to the allegations about the company's scientific knowledge and activities.

(Over a year ago, Mr. Porter first testified as a fact witness for the plaintiffs. The scientist who was originally chosen by ITL to present its scientific defence, Stewart Massey, passed away early in 2013).

Documents waiting
for Mr. Porter's appearance
Primed to help Mr. Porter through this task today was Nancy Roberts. Today she arrived equipped with a thick binder of prepared questions and several boxes of documents,

Given the events of the past months, Ms. Roberts could be forgiven for expecting that her main challenges would be to try to match the speed with which her colleague, Suzanne Côté, can plow evidence into the trial and to have this witness provide memorable - or at least intelligible - testimony.

But neither Ms. Roberts nor her seat-mate today, Deborah Glendinning, were in court yesterday and it may be that no one had briefed them that Justice Riordan had pretty much forced the plaintiffs to show a little muscle.

What goes around, comes around

It wasn't long into Mr. Porter's testimony that it became clear that today was not business-as-usual.

Ms. Roberts found herself facing a barrage of objections. Mr. Lespérance and Mr. Boivin were a tag-team. Hearsay. Opinion. Irrelevant. Improper for a fact witness. Leading. Not the right witness for the document. 

Justice Riordan showed the same even-handedness as he had yesterday. Deciding that the sauce for the goose would be applied to the gander, he upheld the same kinds of objections that he had supported from Imperial Tobacco's team in earlier parts of the trial.

With her body language alone, Ms. Roberts gave every indication of being both surprised and offended by the turn of events. Her shoulders arched back and her chin rose a few inches as she frostily defended the line of questions she had prepared, many of which seemed to leave her vulnerable to attack.

While the tension rose at the front of the room, those of us in the back leaned in to watch, trying to hide our smiles.

"I don’t think they are doing anything different," he responded to Ms. Roberts' complaint after he upheld yet another objection and put yet another of her exhibits under reserve. "I am not commending or condemning. They are doing exactly what you did."

By mid-afternoon, Mr. Lespérance let up his objections (perhaps because the documents that were being introduced at this point were hard to object to).

But the plaintiffs' new tactic had found its mark. What's more, Ms. Roberts had let the interruptions get under her skin. She responded in ways that made her reaction to adversity -- and not her witness' testimony - become the take-away message of the day.

The Science Guy returns

At the best of times, Mr. Porter is a challenging witness to follow. He begins his answers in an almost inaudible tone, and then allows his voice to fall even further - well beyond the capacity of the courtroom's sound system. But even at full volume and in complete sentences, his ideas would be challenging to follow.

Today, for example, he spoke about seemingly mysterious ways that BAT and Imperial Tobacco measured the multi-syllabic compounds found in tobacco smoke. "Aliphatic aldehydes" anyone?

Despite Ms. Robert's encouragement for the witness to "break it down", his explanations failed to meet the layman test. (Mr. Perrins, the historian who testified last week, did a much better job of explaining scientific concepts).

The scientific details might have been poorly understood, but the messages Ms. Roberts was trying to convey came through quite clearly:

* Imperial Tobacco allowed its scientists to publish information in external peer-reviewed journals. Provided "it was good research" and there were no concerns about losing proprietary information to competitors, the scientists were free to publish.

* Imperial Tobacco's research was well respected, has been cited by health authorities, and is now the basis of industry or regulatory standards.

* Imperial Tobacco's research was published in the scientific press. There was never any attempt by the company to conceal that tobacco smoke contained toxic chemicals, nor to deny that tobacco smoke was mutagenic.

* That whatever the trial might have heard earlier, Ames tests are important and useful.

 * That Imperial Tobacco has used many tests to measure toxicity or other harmful properties of cigarette smoke (mouse skin painting, Ames, nitromethane fraction index, paramecium, ciliatoxicity, hyperplasia, protozoon, DNA synthesis, invitro mitronucleus, neutral red uptake assay, etc.)

* "Project Day" was a sincere scientific effort by Imperial Tobacco to find a less harmful cigarette. It was not, as the plaintiffs have suggested, a marketing ploy.

Mr. Porter will testify tomorrow and Thursday.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links