Monday, 2 December 2013

Day 187: "Swamped with details"

You should thank your blessings that you chose to stay away from the Montreal Tobacco trials today. It would be a very rare individual who would find being in the court a good use of time.

The witness today was the 75 year old Charles Francis Marks (aka Frank Marks), the former director of Agriculture Canada's tobacco research centre at Delhi, Ontario. But it was not the fault of Mr. Marks that the day was excruciating.

To the contrary. Rather than dragging things out, Mr. Marks did what he could to move things along. He kept his answers to a minimum, usually giving no more than a simple "yes" to the questions put to him by Imperial Tobacco's counsel, Valerie Dyer. On rare occasion, he rejected her suggestions. Almost never did he give an answer that took more than 2 sentences.

The reason for the pained expression on the plaintiffs' and judges' face today was not the witness. It was the water-drop torture of Imperial Tobacco's strategy in this new phase as the focus moves to the federal government.

The federal government again on the stand

C. Frank Marks
Mr. Marks is the first of the Agriculture Canada witnesses who will be appearing over the following month. His role, it would appear today, is to lay the foundation for their testimony, and also for the silent testimony of other public servants who, by virtue of death or disability, will not testify in person.

It's a foundation that was laid out years ago by Imperial Tobacco and the other companies in the "actions in warranty" they filed against the federal government. These claims contained a detailed chronology of government actions written to suggest that the federal government was the agency in the drivers' seat in the management of tobacco sales and therefore should be the one on the hook for any damages awarded in this case. 

This claim was thrown out by the Quebec Court of appeal just over a year ago (as similar claims had been in other provinces), but that hasn't seemed to diminish the company's fondness for the argument - nor from presenting it as their second line of defence (behind "everyone knew"). The court ruling has, however, has seemingly convinced the federal government to stay away from the case. There was not even a representative of the federal government in court today to observe the proceedings!

In addition to his exposure to the federal role in the actions in warranty issue, Justice Riordan has already been exposed to lengthy testimony about federal actions on tobacco. Notably, Robert John Perrins, an Acadia University historian hired as an expert witness by the companies provided an exhaustive 750 page review that contained no fewer than 1,600 documentary references. (Exhibits 40346, 40347 and 40348). 

It would appear that even these exhaustive reports were not enough. Today Ms. Dyer began an even more microscopic look at the federal "less hazardous cigarette program" that started in the early 1970s and was effectively jettisoned by the end of the decade.

Your tax dollars at work

Today was particularly hard to keep up with the flow of documents. The plaintiff's database is temporarily not working, and the screens which are placed overhead the public galleries went blank.
Nonetheless, there were a few documents that are available that catch the core of the events that were discussed today.

Exhibit 40346.246 describes, among other things, the initiation of a "smoking and health" research collaboration with Health Canada, the establishment of facilities to conduct it, and support from the tobacco industry in the manufacture of experimental products.

Exhibit 20766  provides a report on the efforts of Agriculture Canada's attempts to "help growers produce the best quality flue-cured tobacco at the lowest possible cost" including to "to reduce the biological activity of flue-cured tobacco."

Exhibits 20803.1 and 30001, which record the efforts of Agriculture Canada and Health Canada to establish a consensus on how to achieve the goal of reducing the harmfulness of cigarettes.

Say this for the program - it was ambitious! With only 3 scientific staff, the project set out in 1976 with a two-year goal "to develop safer tobacco products and improve current management practices by isolating, identifying and assessing the variability of chemical and physical leaf characteristics which may be associated with tobacco smoke toxicity and/or carcinogenicity”  (Exhibit 40347.6)

Mr. Marks did not elaborate on these events so much as agree with Ms. Dyer's characterization of them. He said that the person with real knowledge on the details of the program was Dr. Zilkey (scheduled to testify next week), and confirmed that Agriculture Canada worked independently of Health Canada and of the tobacco companies.

He agreed that the department and the researchers working on the problem believed that it was possible to find a safer cigarette. Ms. Dyer did not ask him whether this belief was informed by the industry sharing any of its own research with his colleagues.

Nor did she show him another exhibit from the trial - one in which an industry scientist was laughing at the department's "illusions of grandeur". (Exhibit 1564R)

Dotting the "i's" and crossing the "t's" 

It would not be fair to say that the court did not learn a lot from the dozens of documents shown to Mr. Marks. Some of it seemed quite pertinent to what the government was trying to do and why. But many questions seemed aimed at establishing small details with little apparent importance.

We learned where we could find pictures of the people who worked at the Delhi Research Station. We learned the name of Mr. Marks' secretary. We learned that the London Free Press is a newspaper, and that it is published in London.

During the break, a friendly bet was taken on when Justice Riordan would clamp down on this line of questioning. Better heads than mine correctly predicted that her newness in the court would grant Ms. Dyer a reprieve until the afternoon. (This was Ms. Dyer's second appearance at the trial).

The rebuke, when it finally came, was quite subtle. Justice Riordan pointed out that the level of detail "would not normally be helpful" and that "the colour of the tie that the chairman wore" seemed to be the type of question that she was heading into. Later, he commented that he was "swamped with details." 

Imperial Tobacco Counsel
Valerie Dyer
Ms. Dyer is remarkably unflappable and authoritative in an old-fashioned way. (I would not be surprised to learn that she previously captained a field hockey team). As she had on the previous time she was before Justice Riordan, she seemed to be able to ride past his hints as though confident in the knowledge that he would come to see things her way.

Nonetheless, she admitted she might have been too assiduous in "dotting the 'i's".  After some clarification on the status of the documents that had been agreed to as "2870 exhibits," she promised she would review her approach before tomorrow.

Just in case she decides to stay the course, I might pack my knitting.

C. Frank Marks is scheduled to testify through Wednesday. On Thursday, another former Agriculture Canada employee, Wade Johnson, will appear.