Monday, 7 October 2013

Day 171: Tony Kalhok (bis)

There were some unexpected events in store when the Montreal Tobacco Trials resumed this morning after a two-week break.

An untenable status quo

The first surprise was the change in the day's schedule to allow for contentious case management discussions.

Imperial Tobacco's counsel, Craig Lockwood, opened by reminding Justice Riordan that the rationale behind the extended break had been to allow their team to propose a way to reduce the number of federal government witnesses. (By my count, there are 27 federal representatives now scheduled to testify between December to March).

The approach they took had been in the works for a much longer time. "Close to two months of solid work" had been invested in a document sent to the plaintiffs last Thursday. In it were 150 proposed admissions based on 400 or more documents that, if the plaintiff's agreed, would reduce the number of government witnesses to a mere 10.

(Like an iceberg, much of this case lies out of view, and the document in question was never shown on the screens, nor fully described. As best I gathered, it was written in the form of a narrative that tells Imperial Tobacco's version of events regarding what the federal government knew and did over several decades.)

Mr. Lockwood sounded aggrieved at the response his offer had received.  "We received yesterday a rather 'pithy' e-mail ... I had another word for it, but I will go with 'pithy'."  The plaintiffs had refused this offer of admissions that "were not controversial or excessive in any way."

Within the Osler team at this trial, Mr. Lockwood has a pretty laid-back courtroom style. Nonetheless, he seemed a little riled up as he explained the impact of the plaintiffs' decision. His finger pointing accusingly, he warned this response "puts the court in an untenable position." 

"We are now going to have to issue subpoenas" he said. With some of the witnesses in elderly or frail conditions "we will have a fight over capacity, and they will have to retain counsel for why they can't testify."  (I had trouble understanding how this "untenable position" was any different than the status quo that has been in place for several months, but he made it sound as though the refusal of their offer resulted in a material change in circumstances). 

Mr. Lespérance gave the plaintiff's view: this approach had not met the objective of saving time. "For us to go through those 400 exhibits and thousands of pages we received last Thursday will take us as long to review as it took them to write it."  The quo was not worth the quid.

Permission was extended for Justice Riordan to receive the document, and he scanned through it as he listened to both sides. He seemed to appreciate the usefulness of the narrative framing  ("this might be the chronology I was asking for!"), but did not express support for it as a way to shorten the witness list. Better, he suggested, would be something in the form that identified what each specified witness could have been expected to say.

Moreover, he said, he would have to take the same position he had adopted earlier in the trial when the industry was the one refusing to concede. "I can't force people into admissions."

The plaintiffs had made a counter proposal, suggesting that the defence team could enter documents without witnesses, without the need for a 2870 process, and "without reserve" - provided, of course, that the plaintiffs' could do the same for rebuttal documents.

Mr. Lockwood seemed unsatisfied with this suggestion. "We want to see what their view of  the case is.... We need to have a sense of what the plaintiffs' version of the government story is."  

Mr. Potter seemed to have a longer-term horizon, perhaps thinking of the Appeal Court.  "One day, this court or others are going to be pointed to a document, and someone is going to say that no witness spoke, and that the court can give the documents the weight they deserve. We want it in a format that any court will be able to say that it is a fair representation."  

This felt like round one in yet another tussle over the defence witness list.

The Potter File

There was a second set of proposed admissions shared with Justice Riordan this morning (alas, also not shown to the spectator's gallery). These concerned a way to avoid Simon Potter being put on the witness stand.

Justice Riordan has repeatedly made it clear that he does not want Mr. Potter to testify in this trial given his role as counsel for one of the parties (Rothmans, Benson and Hedges). The judge has leaned heavily on both sides to find a way to make this testimony unnecessary.

But it would appear that Imperial Tobacco's approach in this case was no more acceptable to the plaintiffs than the first set discussed this morning had been. And this time Justice Riordan made it clear that he also was not happy with the proposal.

He directed Suzanne Côté to redo her offer.  "The way it is formulated, it seems to be a way of providing proof on document retention, not just what Mr. Potter would be saying....It is not an appropriate statement for an admission." 

Disappearing witnesses? Disappearing trial days!

The remaining case management discussion today was equally unsuccessful at reaching any resolution about what to do about the case of the dropsies that has infected the defence witness list. Witnesses keep falling off!

More cuts were announced today. ITL's former president, Benjamin Kembal, is apparently no longer required. Justice Riordan was pushed hard to blink and agree to suspend hearings while a related case is heard in mid-November.

The combined effect is dramatic: After the adjustments announced today, it would appear that in the 34 sitting days between now and Christmas there are currently 10 days with no witnesses scheduled.

And then there were seven

Justice Riordan announced today that he planned to combine two of the "eight common questions" that were inherited from the decision to certify the cases.

Instead of deciding separately "Did the defendants implement a systematic policy of non-disclosure of these risks and dangers?" and "Did the defendants trivialize or deny these risks and dangers?" he now proposes to answer the new question: "Did the companies trivialize or deny, or employ a systematic policy of non divulgation, of such risks and dangers?"

(The seven questions, as revised, are shown below).

The repeated testimony of Mr. Kalhok
It was late in the morning before Anthony Kalhok made his eight appearance at this trial. (As always, he was accompanied by his wife and his wide smile).

His testimony was most surprising -- there were no surprises!

The only other "inside" witness called by Imperial Tobacco todate (agronomist, Gaetan Duplessis) was the source of fresh evidence - and some pretty eye-popping facts about Agriculture Canada's tobacco strategies.

No such luck this time. Mr. Kalhok had no new information to provide to the trial. Not even a single piece of new evidence!

Instead this witness was taken through pretty much exactly the same issues that had kept him busy during his 7-day appearance as a fact witness for the plaintiffs,  He was asked similar questions and gave similar answers. 

Mine were not the only eye-brows raised at this approach. Plaintiff lawyer  Pierre Boivin objected to the re-hash of previous testimony. Eventually, Justice Riordan did too. But Mr. Lockwood pushed back and asked for some slack.  

"I take your point," he told the judge. "But we’re asking for one day – less than one day!" He wanted Mr. Kalhok - whose legacy was "being attacked" to be able to tell his story.

Justice Riordan relented. "Okay. You want it all in one place. - It would be faster to let you proceed than to argue it with you." 

A consolidation

It took Mr. Lockwood and Mr. Kalhok less than two hours for this story to be told.

Mr. Kalhok explained that by orienting the entire organization towards "the satisfied smoker," the research planning group played a pivotal role not only in its long term projections (that assisted IMASCO's diversification activities) but also by determining production runs. "Players and duMaurier were produced on Monday and smoked on Friday."

"Our one objective was to to gain market share at the expense of  our competitors," he said. The company never worked to create a demand for cigarettes - doing so would have been ineffective, he said.  "It was a saturated market. Everyone who wanted to smoke  was doing so. It was the same as with cars -- you didn’t try to change a market demand. It was there." 

There was nothing nefarious in their approach. They did not target youth. "No project that attempted to go there would get past me."  They did not discourage quitting. They did not try to influence the social acceptability of smoking. They sought to diversify their products, not keep smokers in the market.

Mr. Kalhok described the gradual reductions in the number of Canadians who smoked through the eyes of a marketer. "This is also part of the normal health of life cycle of brands. With hoola hoops it is six months, in smoking it is several hundred years."  

(The marketing of "light" cigarettes was similarly described in a marketers terms - "taking advantage of the realities that were out there and fully understanding a smoker's decision-making criteria for brand choice.")

Plain packaging anyone?

Despite Craig Lockwood's attempts to concentrate Mr. Kalhok's answers, there was much that this witness said that will likely never appear in BAT or Imperial Tobacco' regulatory submissions to governments. 

The cigarette package was the embodiment of marketing efforts, he said. "Smokers wear it. If they pull out a particular brand it says something about them. They would select the brand that would reflect them." "At the end of the day, the primary communicator to smokers was the package. Everything else was incorporated into that."

More objects in the rear view mirror

For the last 90 minutes of the afternoon, André Lespérance cross-examined Mr. Kalhok. 

He took the witness through a series of documents that seemed at odds with the story presented earlier in the day. These included records of Mr. Kalhok's participation in the recruitment of Hans Selye to testify about the benefits of smoking, decisions of a CTMC committee to "strongly resist" the federal government's requests for curbs on marketing, the view within the company that tar and nicotine levels in advertising were an implied health claim, the targetting of Player's Light marketing efforts to young smokers, and the detailed analysis of how health concerns affected brand preferences.

Mr. Kalhok could not provide the same level of crisp responses to these documents as he had earlier in the day. At times he seemed to struggle (or bypass) the meaning behind the questions. For the most part these documents were left, as they say in this trade, to speak for themselves.

The revised common questions

1. Did the defendants manufacture, market, commercialize a product that was dangerous and harmful to consumers' health? 

2. Did the defendants know and were they presumed to know the risks and dangers associated with the consumption of their products?

3. Did the companies trivialize or deny, or employ a systematic policy of non divulgation, of such risks and dangers?
4. Did the defendants set up marketing strategies conveying false information on the characteristics of the goods sold? 

5. Did the defendants knowingly place on the market an addictive product and did they purposely refuse to use parts of tobacco with nicotine levels low enough to end the addiction of a large number of smokers?

6. Did the defendants conspire amongst themselves to prevent the users of their products from being informed of the dangers inherent to the consumption of their products?

7. Did the defendants intentionally infringe upon the right to life, safety and integrity of the members of the group?

Tuesday's session at the trial has been cancelled. On Wednesday and Thursday, Mr. Ed Ricard and Mr. Gaeten Duplessis will testify.