Thursday, 25 September 2014

Day 238: What if the Broad Street Pump had been owned by Big Tobacco?

There were times when I felt I was on a six hour legal roller coaster during the fourth day of the plaintiff's final argument in the Montreal tobacco trials. Certainly more fast and furious than usual.

Or maybe I just have roller-coasters on the brain after Philippe Trudel used a Belvedere ad portraying one early in the day, asking Justice Riordan to reflect on whether amusement parks were something that appealed to a lot of adults.

He was concluding his presentation on why all tobacco ads shown in Quebec during the class period were misleading within the scope of the Quebec Consumer Protection Act. They omitted important information, they conveyed misleading information and they functioned as interference with consumer understanding of product risks.

He had also focused on more traditional concerns with tobacco marketing - such as its role in recruiting children to smoking. This morning Mr. Trudel provided further examples of each companies' strategies to reach younger people, and how these plans were reflected in their marketing. (Exhibits 303, 1503.9, 989.52, 292, 771).

He ended by drawing attention to the mid 1970s finding by Imperial Tobacco that one of the most effective ways to prevent Quebec youth from starting to smoke would be to stress its addictive powers. This, they found, would run counter to their view that cigarettes represented autonomy and independence (Exhibit 301). Following, as this did, the previous days' review of the company's attempts to deny addiction made this a point likely to stick.

Did [the companies] conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use?

Bruce Johnston presented the plaintiff's response to the last of the six fact-based questions assigned to the parties.

He began his (decidedly affirmative) answer to the question of whether there was an industry conspiracy by presenting the fabled public health story of John Snow and the Broad Street Pump. Even before there was scientific consensus that cholera could be spread by contaminated water, the theorized source of harm had been removed.

"What the defendants have done is so much worse than leaving the handle on," said Mr. Johnston. He likened their behaviour to those who would refuse requests to stop selling such water until there was absolute proof. Worse - they were like those who would make up science to actively contest the contagion theory. "All the while choosing profits over lives."

From London to New York to Montreal

Only a century after the Broad Street pump handle was removed, tobacco companies gathered at New York's Plaza Hotel to plan a collective response to the emerging theories that their products were causing death. From this meeting emerged a strategy symbolized by the Frank Statement.

The objectives of the strategy of denial, Mr. Johnston said, was to sustain scientific controversy about the harms of smoking and thereby give a rationale for smokers to continue buying cigarettes, as well as helping the companies resist regulation and fight off lawsuits.

He said today's legacy of this decision is that "all their decisions now look like a pretzel: 'it's not proven, but everyone knows it.'"

Mr Johnston pointed to evidence of the same strategy being executed in Canada. The defendants employed the same denial campaigns, they similarly funded research aimed at pinning the cancer blame on other causes, they amplified the voices of the same few scientific dissenters. They even employed the same public relations consultants to write submissions to government offering the same denialist statements.

Mr. Johnston tied a thread between this strategy of denial and events at this trial. He described how the defendants had hired experts with little or no experience in tobacco issues as a way of providing expertise that was not in line with views of more knowledgeable people. He showed how the views of industry consultants - like Maurice Seevers - had found their way into the reports of expert witnesses after they had been "developed" by lawyers in the United States. "That's denial coming right here into this courtroom, your lordship."

Mr. Lespérance had earlier referred to BAT's scientific conclusions after a 1958 tour of North America to illustrate the disconnect between their internal knowledge and external comments. Today, Mr. Johnston used the same example to show the conspiracy elements of these events.

Two scientists who did not accept causation were identified by BAT in 1958. One of them was Dr. Joseph Berkson, and his views, the company officials noted, were not scientifically respected. "His reasoning is nowhere found to be sound." (Exhibit 1398).

But for the following two decades it was Dr. Berkson's views which were presented by the Canadian and American firms to the public and to government. (Exhibit 551C, 687, 1269, 1237, 30029.229, 1237). The widespread and repeated plugging of this man's views was evidence of conspiracy, Mr. Johnston suggested.

The 1962 Agreement

"When you allege conspiracy, your lordship, rarely do you have a contract. But we do." 

Bruce Johnston provided details -- I think for the first time ever --  on an agreement signed by each of the tobacco companies operating in Canada "to refrain from the use of ... tar, nicotine or other smoke constituents" and to offer no public statements on health issues. (Exhibit 154, 154b, 154e)

They also agreed to adhere to a common position on smoking and health issues and a common framing in their responses.

"Q. Has it been proved that cigarette smoking causes lung cancer?"
A. No...."
"Q. May there be hazards to smoking?"
"A. Every human smoking action has its hazards, even taking a bath ...."

The defendants' explanation of this series of documents will be worth watching...!

Funding medical research

The American tobacco companies announced funding of medical research in their January 1954 Frank Statement. Within a few weeks, the Canadian companies had done likewise -- co-funding a $100,000 donation to the Canadian National Cancer Institute. The companies have denied that this was done to undermine public acceptance of causation, but happened rather as a result of a federal government request. There were "no strings attached" said JTI.

Bruce Johnston offered evidence of other intentions. He highlighted the role of Carl Thompson (a strategist behind the Frank Statement), who prepared advice to the NCIC on how these funds could be used. (Exhibit 688B, 21207.5). "The PR guy is charged with providing ideas for the research that should be done! ... [His proposals] are all a search for confounding factors." 

Research that contradicted public positions was removed

Bruce Johnston linked together other events to show that the views of BAT scientists and scientific advisors were rejected in favour of denialist public relations campaigns. He focused on the counter-messaging that was prepared in advance of the 1979 Surgeon General's report. (This report was an up-dating of the 1964 report, offering a 15-year perspective on developments in science.)

BAT's advisors reviewed the report and the rebuttal material prepared by the U.S. Tobacco Institute ("The Continuing Controversy" Exhibit 475A), and had faulted the public relations material as being so unscientific that it threatened the industry's credibility.

Mr. Johnston pointed to evidence where the Canadian companies, having received this criticism, nonetheless chose to rely on the U.S. public statements, to circulate them to media and to others, and to echo the approach in public responses.

He also linked this with the choice by BAT and ITL to expunge documents from its research library which contradicted the public position on cancer, cardio-vascular disease and emphysema. (Exhibits 58-32, 59-22, 58-59).

There are almost 50,000 Quebecers who are seeking damages for emphysema caused by smoking. Mr Johnston contrasted the position circulated by ITL after 1979 ("the uncertainties and unknowns in the medical understanding of COPD permit no firm conclusions about smoking" - Exhibit 475A) with the findings of a 1976 document it later collected for destruction ("Cigarette smoke produces changes which precede emphysema... patients with emphysema who have never smoked are rare." Exhibit 58-59).

Did the defense lawyers play fair?

A section of the plaintiffs' written arguments is focused on the way the trial was managed by lawyers for Imperial Tobacco and the other companies. "The defendants intentionally sought to exhaust the Plaintiffs in order to prevent them from exercising their rights. This is abuse of process," they claim.

On the basis of a detailed list (130 paragraphs long!) of "extensive and systematic abuse", they asked Justice Riordan to penalize this behaviour by forcing the companies to pay the plaintiff's legal costs and also to pony-up 25% of any damages even before any appeals have been heard. (This is called provisional execution.)

Imperial Tobacco, which is the target of most of the complaints, responded by asking that this whole argument be struck down and the offending sections of the plaintiffs' written arguments be cut out. The debate on the ITL motion was heard this afternoon.

Having watched Justice Riordan's frostly response to some of the shenanigans that have taken place on the defence benches, I had earlier thought he might enjoy having the spotlight on some of those events. I could not have been more wrong.

I have rarely seen this judge look so displeased and grim as he did during the presentations on this motion by Imperial Tobacco, Rothmans, Benson and Hedges and the plaintiffs.  (JTI-Macdonald said on Monday that it would not wade in to support Imperial Tobacco. Indeed the senior members of their team seemed to have had a bout of diplomatic flu this afternoon -- they were nowhere to be found).

Suzanne Côté's position (ITL) was that these were substantial new allegations, and that the company had been denied the opportunity to offer proof against them because they were expressed after the proof had closed. She offered a fast-paced 45 minute presentation of legal precedents to support this view.

Simon Potter (RBH) spoke more briefly and (as always) more colourfully about the trial dynamics that should be consideired. He said that it would be a "distraction" for the court and, besides, there were grievances on their side too!  The plaintiff lawyers should suck it up, he suggested. "Litigants who are in a multi-billion dollar case that lasts a long time have to be adult about the frustrations and inevitable excesses that will be seen. They have the duty to leave the court to its serene consideration of the true merits of the case."

(He also cautioned against the filing of billings that would be required if legal costs were applied -- a precedent in disclosure he presumably would not want to see, given that his client is locked in a dispute with insurance companies over not disclosing his own billings! )

Before André Lespérance could respond, Justice Riordan leaned back in his chair and warned him off pursuing a demand for damages at this time. He suggested that the contingency-fee arrangement would in any event limit any potential award. "I also want you to consider the damages that could be awarded in this case, and if there is no damage that would be felt by your clients, I would ask where we are going with this."

Mr. Lespérance, in an awkward position before this unusually discouraging judge, pointed nonetheless to the capacity to demand punitive damages.

Justice Riordan was even more discouraging. He gave Mr. Lespérance a stern look and told him that if they thought he would want to add any further hurdles to keeping this trial on the rails, then they "haven't got a very good reading of me over the past 6 years.  ...  I think I will not do justice to the individuals or the parties to get bogged down in a question that - as important as it is - is secondary to the issues." 

And then he offered some comfort. He said that while he did not think he had the power to agree with ITL's request to strike down any part of the plaintiffs brief, he did have the power to decide when he would hear their arguments. He smiled - a little - and told Mr. Lespérance "I might be happy to see you again in 2016."

Somber as a judge

The discussion of compensation for scorched-earth legal strategies was not the only time during the week that Justice Riordan has looked atypically grim. His voice and body language suggest pain or stress -- or maybe it is just part of the court theatre at this stage of the trial. For whatever reason, it has certainly contributed do the atmosphere of stressful concentration.

The trial resumes on Monday and Tuesday next week. The plaintiffs will finish their presentations on conspiracy, and present their legal arguments and proposed damages.

(This post has been back-dated to provide continuity in indexing).