Tuesday, 15 October 2013

Day 174: Ms. Robert's 'offally' short afternoon

Between a break for the Canadian Thanksgiving (yesterday) and the annual Quebec judges' meeting (Thursday), the Montreal Tobacco Trials were already heading into a brief two-day week of hearings. These were even further compressed by conflicting lawyer's schedules. The result: only half-day hearings today and tomorrow.

It turns out that even a half a day was more than was necessary for Imperial Tobacco to run their retired process engineer, Wolfgang Karl Hirtle, through the witness box for his second time. (Mr. Hirtle first testified at this trial last December.)

A bean pole of a man, Mr. Hirtle again arrived in shirt-sleeves and with an overtly frank way of speaking that made him look and sound very different from the many "suits" who have testified before. I don't think any other witness has admitted to nervousness - If a middle-aged man could be cast in the role of ingenue, Mr. Hirtle could!

The apparent lack of artifice in her witness could only have helped Imperial Tobacco's counsel, Ms. Nancy Roberts, achieve her goal for the day. --  she had brought Mr Hirtle back so that he could recant his prior testimony.

What I meant to say...

Nancy Roberts: "Why are you back here today?"

Karl Hirtle: "You called me a few months back with another issue you wanted to discuss with me. I told you that some of the testimony I gave was not correct. I started remembering more. I made the mistake of telling you I would come back if you wanted me to."

Mr. Hirtle explained that his nervousness, combined with having to answer questions quickly about events that were more than a decade ago, had lead him to say things that he realized later were inaccurate.

Specifically, he wanted to correct any impression that waste from fine-cut tobacco (which was treated with additives) was recycled into reconstituted tobacco for cigarettes (which the company maintained were additive-free).

"I do not recall fine-cut dust ever being sent to Ajax." (Ajax was Imperial Tobacco's processing plant in Lasalle, Quebec). Despite what he might have said last year when questioned by the plaintiffs, he now felt the waste products were not pooled. "I was wrong.  Fine cut and tailor made dust was not mixed from the Montreal plant."

Ms. Roberts asked him about the various forms of waste tobacco that were recovered from the manufacturing plant. Like the recovered material from an abattoire, these apparently, are called "offal". (Most distractingly, she insisted on pronouncing "OFFal" as "OAFal," even after her pronunciation was corrected twice. I received it as a cautionary tale of how sticking to your guns can lead you to look silly.)

Mr. Hirtle described some of these offal: - the "ripper dust" that resulted when poorly manufactured cigarettes were mechanically taken apart, the "grinder dust," that resulted when stems were ground down, the "cooler dust" from the machine where casing was added. Tobacco waste was highly valuable, he said, and the waste products were separately tracked and inventoried.

Only one document was offered to validate this change of testimony and to my eyes it seemed rather inconvincing. (See what you think - Exhibit 20305!).

Twenty minutes after it began, Mr. Hirtle's testimony for his former employer was finished.

Riling the judge

Justice Riordan was quick to express his concern about what he seemed to feel was an abuse of witness and court time. "You made him come back for that?!! You could have asked for an admission.... Did you even ask for an admission?!"

This was not the first time over the past week that Justice Riordan has revealed his frustration at having his chain pulled by Ms. Roberts.  Last week he spoke sharply in response to her interruptions - "Oh, come on, he's asking simple questions. There's no need to object to this!" -  and her tendency to ask leading questions of her witness - "Do you want to get up and testify for him?"

But today was the first time he admitted to anger. "I am not allowing the filing of the document. I may change my mind. I am angry right now."  He did change his mind, and Exhibit 20305 was filed.

The cross examination

André Lespérance and Bruce Johnston showed Mr. Hirtle other documents that suggested that his original testimony might have been a more accurate version of events.

One of these was a press release issued by the CTMC in 1994 (Exhibit 40017) : "Two manufacturers, RJR-Macdonald inc, and imperial Tobacco Ltd., use small quantities of reconstituted tobacco, a method of recovering and reusing small pieces of tobacco from the initial stages of processing and manufacturing of cigarettes and fine-cut."  (Emphasis added)

They showed him new documents which described the recipe for reconstituted tobacco and which referred to "all' dust from the plants without any mention that dust from fine cut would be excluded. (Confidentiality was provisionally claimed for these exhibits, and they may or may not become public as Exhibits 1606 and 1607).

Mr. Hirtle did not change his mind again. He stuck with his second version of his story. "The material came from cigarettes only, not fine cuts." Although fine-cut tobacco was good enough to smoke, it was "not good enough for Virginia cigarettes. They are two very different products. One was casing free and one wasn’t. We just didn’t take those risks."

Sometimes it's hard to distinguish doubt from confusion. Had Ms. Roberts cast doubt on the plaintiff's allegation that additives found their way into tobacco products through the recycling of manufacturing waste? Had the plaintiffs' cast doubt on her witness' recanting of any suggestion this happened? Or is it just confusing?

Good news for Imperial Tobacco

Although the witness was soon dismissed, there were some other business items to be put to Justice Riordan. One of these was a billing dispute regarding the interpretation of his order that Imperial Tobacco cover the costs of Jeffrey Wigand returning to Montreal. The judge ruled that Imperial Tobacco was not obliged to compensate Mr. Wigand for his time and efforts in arriving in Montreal.

Good news for JTI-Macdonald

Justice Riordan formally informed JTI-Macdonald that the trial would not sit during the week of November 11th, a suspension they had requested in order to manage a related (confidential) dispute before Justice Mongeon.  He also agreed that the trial would not sit on October 24th, as JTI was unable to advance its witnesses for that day.

He reminded them that this was the second suspension this fall: "We are getting down to a Club Med schedule." He expressed his desire that this scheduling change be payed back with an acceleration of hearings for government or other witnesses, and suggested he would be taking action if this were not the case. "This trial has to end." 

The schedule for November will not be known until October 24. The defendants are to provide a renewed schedule of government and other witnesses by November 18.

Tomorrow is another short day!  Imperial Tobacco marketer Neil Blanche will appear in the morning.