Monday, 3 February 2014

The Defence vs. Justice Riordan

Several procedural items were discussed last week.

During these discussions, it often looked like counsel for Imperial Tobacco and Rothmans, Benson and Hedges were putting the screws to Justice Riordan. His transparent intention to avoid ruling against the companies and thus put the trial at risk of a delay while appeals will be heard seems to have declared open season for this kind of mischief.

We'll take two. Hold the "please."

The most obvious example emerged mid week, when the defence announced that they intended to call two witnesses to counter the proposed expert testimony of Dr. David Burns. (Dr. Burns was set to defend the landmark  "Monograph 13" against the view of BAT scientific consultant Michael Dixon, who said the expert panel misstated the science underlying its conclusions that light cigarettes offered no health advantage.)

I thought Justice Riordan had made it quite clear last December 5th  and December 19th that he would allow only one such witness.

But ITL and RBH lawyers seemed to ignore this when they announced not only that they intended to call an additional witness, but that there might also be delays while they did so. In addition to Michael Dixon returning, they intended to bring epidemiologist Dr. Seymour Grufferman to Montreal. This gentleman, apparently, is experiencing health issues and may not be able to draft his report in a timely way.

 (Mr. Potter described Dr. Grufferman as a "Harvard Professor in Epidemiology", although Harvard's faculty directory lists no such person. It is sometimes prudent to fact-check Mr. Potter's statements.)

However clear the one-witness decision seemed to me, two of the defendant companies seemed to think it was still an open question. They pointed to a lingering thread in the way that Justice Riordan had concluded the day, and yanked at the loose-end in order to unravel the decision.

From his reaction last week, Justice Riordan also felt that his chain was also being yanked. Clearly he did not appreciate being put in a position of offering forgiveness instead of permission. ("I am in a bit of a huff, I have to admit").

First Craig Lockwood (who represents BAT/Imperial Tobacco) and then Simon Potter (PMI/RBH) used a good-cop/bad-cop act to try to force Justice Riordan to downgrade his December ruling into an "express[ion of] a clear preference."

The other parties in the room seemed to be unimportant to this struggle between the bench and two of the five parties in the trial. The counsel for JTI-Macdonald kept quiet. The concerns of the plaintiffs, even though they were more forcefully argued than usual by Pierre Boivin and André Lespérance, seemed to be almost incidental to the discussion.

Once again, Justice Riordan blinked. Although he spoke on the side of the plaintiffs, he ruled in favour of the defendants. "I see no justification or need... Nevertheless, the stakes in this trial are of the highest order, and throughout the Court has, time and again, interpreted the rules in such a way as to afford the parties the opportunity to make their cases fully."

One additional witness was allowed - on the condition that it "will in no way delay this trial."

While you are at it, take some of theirs away

Simon Potter seemed on a roll in his efforts to maximize court-time for his expert witnesses and minimize the scope for the defence.

His second long (winded) argument today was to request that much of the report prepared by plaintiff expert Mr. Paul Slovic be thrown out.

Mr. Slovic was engaged by the plaintiffs to rebut Kip Viscusi's argument that smokers over-estimate the harms of tobacco use. The starkly differing views of these two men have long been a matter of public record, and Mr. Slovic was also hired to counter the views of Mr. Viscusi in the now-legendary U.S. RICO case.

Mr. Slovic's recently-circulated report was fresh fodder for Mr. Potter bombast. "A Trojan horse."  "Splitting the case." "Bootstrapping."

Onlookers were not shown the colour-coding that he used to annotate the contested report, but it seemed like Mr. Potter wanted to condemn all but a few paragraphs to the chopping block. He took particular aim at comments related to addiction, to youth, and to the regret people feel after becoming a smoker.

Gabrielle Gagné, who presented the plaintiff's defence of their witness, is the 'go-to-girl' on the plaintiffs team, and the apparent wagon-master of their proof. This was the first time she was assigned to present an argument at the trial.

She provides a sharp contrast to Mr. Potter in more than demographic ways. No hyperbole. No theatrics. In an understated tone and a steady slow pace, she provided Justice Riordan with reasons he should see Mr. Slovic's report as proper rebuttal.

She encouraged Justice Riordan to understand the connection between the information smokers received from tobacco promotions and that they received from health warning messages. She took him to the statements that Mr. Viscusi made which discounted the role of addiction, and the judge's explicit permission for such comments.

Justice Riordan gave Mr. Potter much of what he asked for. The judge agreed to strike down those sections of Mr. Slovic's report which dealt with addiction and smokers' regret.

Ms. Gagné can take comfort, perhaps, in the preamble to the ruling, in which Justice Rirodan said that "the extraordinary nature of this case requires me to take certain steps that might not be appropriate in an ordinary file." While he would not normally want to 'charcuter' (butcher) an expert report, he found the need to rely on the sections of the Code of Civil Procedure that authorized him to implement measures to hasten progress or simplify the proof. (Article 1045)  Justice Riordan also made clear that he rejected Mr. Potter's arguments of case-splitting and improper rebuttal.

Yet to be decided

Earlier this week, two other issues were touched on but not resolved.

How big is the class, exactly?
One was the request by the plaintiffs to introduce new evidence at this late stage of the trial. The documents in question are population estimates that would allow for a calculation of how many class members there are following the redefinition of the classes made last July. The plaintiffs were told to provide more details, and the discussion was suspended until mid-February.

Simon Potter's testimony

The other was an amusing discussion about whether or not Justice Riordan should intervene to prevent the testimony of Mr. Simon Potter. Mr. Potter is a fact witness scheduled by Imperial Tobacco (he represented this company for many years, including during the period of document destruction). But he is also the counsel who now represents one of the other defendants.

The inappropriateness of his being both witness and counsel in the case has been previously discussed and ruled upon. In 2011, Justice Riordan said it could only happen if there were "no other alternative." Last year, he encouraged the parties to find "a way of filing documents or making admissions or something."

Ms. Côté reported that attempts to find such a way had failed. She outlined several options she had suggested to the plaintiffs to no avail. She wondered if Justice Riordan could convince her opponents to agree with one of these plans.

Justice Riordan said he had no intention of convincing anyone and that he was not in the position either to force the plaintiffs' agreement, nor to deprive Imperial Tobacco from calling their witness.

Unless another solution could be found, the decision of whether or not to call Mr. Potter to the stand was now in Imperial Tobacco's hands. Meanwhile, he would like to avoid having to judge the credibility of a witness who is also a lawyer in the case. (Mr. Potter sat silent during this discussion of his future role.)

The plaintiffs sounded doubtful that a way could be found to reach agreement, but agreed to continue discussions. They seemed to think the testimony of Mr. Barnes should cover the story of document destruction, and did not sound opposed to the idea of cross-examining Mr. Potter in open court.
Mr. Potter and Mr. Barnes are scheduled as the last of the defence witnesses -- now only two months away. "The clock is ticking" Justice Riordan reminded Ms. Côté.

The trial resumes on Monday February 17, when Dr. Sanford Barsky will testify.