Monday, 29 September 2014

Day 239: The many forks in the road.

Oh, but it was a dramatic day at Montreal's Palais de Justice!

The media had surrounded the building with their trucks and camera crews - ready to broadcast every detail of the opening of the criminal trial against Luka Magnotta, charged with premeditated murder and dismemberment.

Several floors above that particular frenzy, the Quebec tobacco trials were also at a spectator-worthy moment, as lawyer Bruce Johnston summed up the plaintiffs' factual evidence of Canada's tobacco companies conspiring against the health of their consumers.

It was in other ways too an historic day. Justice Riordan became the first judge anywhere (I think) to be presented with the argument that it should be considered a "civil fault" to sell cigarettes. This, alas, is a teaser - for the report on the legal theories presented by Mr. Johnston today will not be reported until tomorrow's blog.

Lifting the story off the page

One of my favourite Toronto lawyers once told me that litigation is competitive story-telling. Today, Mr. Johnston presented a rousing last chapter in the plaintiff's account.

To good effect, he shifted delivery style. Unlike the condensed and distilled summaries of last week, today's presentation was told in a slow and deliberative way - full of pauses to let key points sink in.

More personal reflections crept in. Mr. Johnston speculated on the mindset of the company executives who made key decisions, on how the smokers' who bought their products might have seen things, and on how people like the judge might perceive these actions.

The decision to minimize liabilities

One theme the plaintiffs sustained over the past week has been the question of the choices made by the companies made at key moments over past decades.

Mr. Johnston said that the motivation for many of these decisions was the desire to avoid being sued, and pointed to the few records of lawyers' advice to support this (Exhibit 1467.2, 1702R). (Usually lawyers' advice is exempted from court proceedings).

He said this motivation lay behind actions like:

* The destruction of documents that might "demonstrate the scientists of the company accepted causation and addiction" (Exhibit 1467.2). 

* The refusal to put unattributed health warnings on cigarettes unless forced by law (Exhibits 79, 841, 50004). 

* The development of an "intractable" level of legal proof required to link use of their products with disease in any individual. (Exhibit 1702-R). Or, as Mr. Johnston put it - "Put the goalposts at infinity so no one will get there."

* Recruiting expert witnesses (in this trial, as in the parliamentary committees before) whose vulnerabilities allowed them to be managed by lawyers.

* Denial and trivialization of health risks. 

He gave an example of the willingness to deny the truth in order to minimize legal liability was reflected in the written arguments of Rothmans, Benson and Hedges. The company had submitted that "People may choose to smoke for a variety of reasons, but an addiction to nicotine is not one of them." 

"Is that not the trivialization they are being reproached with -- and is it not right there in that paragraph?" 

Who listens when the Supreme Court speaks?

Although the Supreme Court ruling on the federal Tobacco Act was one of the first exhibits entered (it is numbered 75A), it is only in their closing arguments that the plaintiffs have pointed to it as a factor in Justice Riordan's determination of the facts.

While clarifying that they were not saying that the SCC conclusions on certain facts were "binding on [Justice Riordan] in any way," Mr. Johnston offered legal precedents as to why it should shift the presumptions of proof. 

Among the many instances he pointed to of the Supreme Court supporting the plaintiffs' case were statements like:

"Tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs." 

"Half of smokers will die of tobacco-related diseases." 

"Tobacco addiction is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse." 

"Recent tobacco advertising has three objectives: reaching out to young people, reassuring smokers (to discourage quitting), and reaching out to women." 

"Tobacco contains nicotine, a highly addictive drug."

"Some 80 percent of smokers wish they could quit but cannot."

He reminded Justice Riordan that the lawyers for Rothmans, Benson and Hedges were the same ones who had lost their case at the Supreme Court, yet their representations in this case had not reflected the facts in any way. "This goes to credibility." 

Benefits of smoking?

Last week Justice Riordan had raised the question of whether there might be benefits to smoking. (The plaintiffs argue that the lack of benefits increases the obligation to not sell the product, or to warn of its risks).

Bruce Johnston returned to the topic by showing internal company reflections on what smokers received from the use of their products: people started smoking for social reasons, and only continued because it was (too) difficult to quit (Exhibit 30, 305). 

Cigarettes were marketed to youth as a badge product. Mr. Johnston recalled how, in his youth, "you took a pack of cigarettes, and put it on the table, and told people who you were." 

"What are the benefits? The addiction is the benefit. [Smokers] start because they want to look cool: they want to look grown up. They later find out that they are smoking because they have to or because they feel they can't stop."

Outside scientists, like Hans Selye, were hired to identify and articulate benefits to tobacco use (Exhibit 543). "When you have to pay the equivalent of millions of dollars to find what the benefits of your product are, I would submit there is a problem. If you have to look for them, they are not that obvious," Mr. Johnston observed. 

He acknowledged that "the only possible benefit is the drug effect."  In that case, he said, the standards of behaviour required of pharmaceutical companies should apply. "Aspirin tells people what the risks are -- why wouldn't tobacco companies?"

The informed choice of children?

Mr. Johnston deviated from usual practice, and related reading "The Lion, The Witch and the Wardrobe" to his then nine-year-old son soon after the Létourneau lawsuit was filed (in 1998). His son, he said, had grasped the parallel between cigarettes and the candy offered by the evil Queen of Narnia.

At last the Turkish Delight was all finished and Edmund was looking very hard at the empty box and wishing that she would ask him whether he would like some more. Probably the Queen knew quite well what he was thinking; for she knew, though Edmund did not, that this was enchanted Turkish Delight and that anyone who had once tasted it would want more and more of it, and would even, if they were allowed, go on eating it till they killed themselves.

Following this, he moved slowly through one of the ITL research reports first made public as a results of the trials that led to the Supreme Court ruling cited earlier: Project Plus/Minus (Exhibit 305). 

Mr. Johnston allowed the details of this research report to sink in. How young people have heard the health risks of smoking, but think they can experiment without becoming addicted. How they want to quit soon after starting, but they find they cannot. How this entrapment leads them to rationalize their behaviour, and moderate their views of the harmfulness of smoking. "It becomes impossible to accept one's status as an addicted smoker without somehow coming to grips with the health issue, and making peace with it. This ends up done by rationalizations, which take several forms."

The defendants' view that smoking is an informed decision made by adults was wrong, said Mr. Johnston, It is, instead, "an uninformed child's choice."

"They don't think they are going to become addicted... What 15 year old is worried about something that will happen in 50 years?"... 

This was only one of the reasons he provided to Justice Riordan why the defence that smokers consented to the risks of the product should be rejected. "They get trapped before they are the age of consent to make any contract." 

Moreover, he stressed, when addiction is involved, consent must be viewed differently: "Do you think a consent you are not free to revoke is a valid consent?"

The acceptable cigarette

Mr. Johnston attacked the defence argument that they had to maintain a certain level of nicotine in their cigarettes in order to make them  "acceptable" to consumers. Consumer acceptability, he said, was used by the companies as a code for "the dose of nicotine required to sustain addiction." (Exhibit 40346.316)

"You could have a different view of acceptable -- meaning NOT capable of sustaining addiction." 

Mr. Johnston said that the companies could reduce the amount of nicotine by using the leaves from the lower part of the tobacco plant. This did not happen, he said, because "from a commercial perspective, it is not as interesting."

"That makes commercial sense, but if you didn't make a product that was addictive to begin with then there would be no such issue."

A widening gap between actions and responsibilities

Mr. Johnston described the actions of the companies as climbing up a ladder away from their responsibilities to their consumers: each step a different level of negligence.

He reflected on the experience of the oldest witness at the trial - nonagenarian Peter Gage. When Mr. Gage had started in the industry, it was an industry like any other, he said. At that time (the 1950s) the companies may have unknowingly but negligently sold these risky products. 

"They didn't exercise diligence -- can they be held liable? Yes. But once they know that it is harmful, what did they do?" He said the companies not only refused to tell anyone what they knew, but they conspired to lie. After that, they increased the distance between themselves and responsibility by sponsoring "bogus science to feed the public with lies."

He showed how the companies believed that certain tobacco leaves would be less toxic, but nontheless did not use them because they contained too little nicotine. (Exhibits 59-28, 1242) "Usually law would require a company to know its products and make them the least dangerous as possible."

He pointed to an early meeting among the companies at which they planned to overcome the health challenges to their products, where their responsibilities were defined as being to their companies, to the Canadian tobacco industry and to the world tobacco industry. (Exhibit 542). Notably missing was any acknowledgement of their responsibility to their customers, Mr. Johnston pointed out. 

"The rules are hardly designed to accommodate behaviour so egregious."

I guess you had to be there

Re-reading this report, I realize that it in no way captures how riveting the experience of the day was. It wasn't just me: others too were watching with the same unwavering intensity.

The next blog post will report on Mr. Johnston's presentation of the plaintiffs legal arguments, which began today and will continue tomorrow, Tuesday.