Thursday, 12 September 2013

Day 166: The weight of evidence

"You can see the changing thinking as the weight of evidence is becoming more and more substantive over time."

Earlier this week, BAT's management scientist, Graham Read, referred to an increased "weight of evidence" as the reason that BAT changed its public stance from a position of casting doubt on the link between smoking and lung cancer and eventually acknowledging it in 2000.

Now in his fourth day of testimony - and second day of cross-examination - Mr. Read became the vehicle through which the plaintiffs added to their own "weight of evidence" of BAT trying to veil its scientific findings from any litigation efforts.

And by the contrast between his answers and these documents, Mr. Read made his own contributions to the "weight of evidence" against his being found a credible witness.

A very civil roughing up

In a studiously polite voice, Mr. Lespérance showed the witness a series of documents that suggested that BAT maintained a sustained effort to prevent their scientific research from becoming evidence in trials like this one.

The first of these was a memo written in the fall of 1988, just as Imperial Tobacco was preparing for a legal battle with the federal government over the constitutionality of a law banning tobacco advertising. The science department was taking steps to ensure a copy of its science database would not be held in Canada. Otherwise, "this could have serious implications in terms of discovering exercises on material held by ITL." (Exhibit 1575). (A year later, when the trial judge excluded scientific reports from discovery  - Exhibit 68, 70 -  Imperial Tobacco's legal team rejoiced at this "major victory.")

Mr. Read denied that the discovery referred to in the memo would have anything to do with litigation -- a view he repeated even though Mr. Lespérance showed him an accompanying analysis (Exhibit 1576) that cautioned: "Imperial's involvement in court proceedings would immediately implicate us should the lawyers discover that computer tapes had been received." 

The contrast between Mr. Read's version of history and the documentary record became even more dramatic when Mr. Lespérance recalled the response of Imperial Tobacco's head of science, Patrick Dunn. (Mr. Dunn has become a significant posthumous figure in this trial!)

When testifying at the U.S. Department of Justice trial, Mr. Read had been asked about document retention, and had been shown a document written by BAT's lawyers that complained "The problem is largely Pat Dunn and Roger Ackman's inability to control him." (Exhibit 1577).  Eight years later, Mr. Read seemed to have forgotten this testimony. He could not recall the document, and said he had been unaware of Pat Dunn's opposition to the policy "prior to seeing this document".

But Mr. Lespérance had additional documents which directly challenged Mr. Read's suggestions that he was unaware of Mr. Dunn's concerns. These records suggested the witness had been brought in to help resolve the disagreement between the companies (Exhibit 157815791580).

This is not the only Quebec court where Mr. Read has denied BAT's role in imposing rules on the science that was funded by its branch plants. Earlier this year, he prepared an affadavit for the Quebec cost recovery suit in which he said "I am not aware of any document retention policies of Imperial that may have been implemented by Imperial with respect to its R&D-related documents." (Exhibit 1581)

The two continents may indeed be divided by a common language. Mr. Read responded that his statement had nothing to do with the BAT-wide document retention policy. "You have to read the English as it is written." Apparently the "ITS" in "Its R&D-related documents" referred to documents generated within Imperial Tobacco's research department, and not those sent from BAT to Imperial.

Like the lawyers and witness before him, Justice Riordan gave no indication that Mr. Read seemed painted into a very tight corner. A jury trial would be so much more obvious in its drama!

Remember the date: 1958

At this stage of the trial, Justice Riordan frequently asks each witness a question at the very end of their testimony. His question for Mr. Read was to get a specific date at which BAT scientists adopted the working hypothesis that smoking caused cancer.

Mr. Read replied that "it was just after 1958"  and that this working hypothesis "would include Imperial from 1958."

This trial was assigned the question " Did the defendants know and were they presumed to have known about the risks and dangers associated with the use of their products?" It seemed this morning like the date 1958 had been put against the answer "yes."


A lot of court time can be saved when lawyers concede elements of their opponent's case by way of admissions, and allow documents, affadavits or other forms of evidence to become part of the trial record without the need for a live witness.

In recent weeks, the plaintiffs have repeated their willingness to "make admissions" concerning the activities of Agriculture Canada, and to consequently cut the time of the trial by about a month. (Mr. Gaetan Duplessis was the first witness to appear on this subject. A report on his testimony, which began this afternoon, will be included in Monday's report).

But the "admissions" that were being discussed this week were those for another witness - Mr. Jean-Louis Mercier. It seems that Imperial Tobacco is no longer interested in this former president being recalled to testify. (They didn't say why they had suddenly changed their mind, but given Mr. Mercier's colourful testimony last year, some eyebrows likely went up on the plaintiff's side. )

Justice Riordan was clearly leaning on the plaintiffs to agree to substitute an admission for the two-day testimony that had been scheduled for later this month. This agreement would cancel the hearings scheduled for the week of September 23rd.

The trial resumes on Monday. Mr. Gaetan Duplessis will continue his testimony on events connected with Agriculture Canada and its development of new types of tobacco.