Friday, 21 November 2014

Day 251: Not a secret deal so much as a deal about secrets

Over the years it has been my experience that when normally adversarial parties utter the phrase "an agreement has been reached" there is a good chance that the agreement in question is one that I may not like.

And so it was today at the Montreal tobacco trials, as it was revealed that the plaintiffs and two of the defendant companies had agreed to keep the companies' financial records sealed.

There was a time when the earnings of two of the companies - Imperial Tobacco and Rothmans, Benson and Hedges - were a matter of public record because they were included in reports to shareholders filed with Canadian stock exchanges. Researchers and policy makers, too, could use this information to better understand the economics of this trade.

This public disclosure ended over the past decade, after the Canadian branches became wholly-owned subsidiaries of multinationals. Now only global-level aggregated data is available and Canadian financial results are apparently viewed by these defendants as a high-level secret.

A transparent capacity to pay

The general Court rule is that all trial exhibits are public unless a judge agrees to a request to keep them confidential. Earlier in the trial, the plaintiffs opposed all such requests, and the rulings which resulted suggest to me that Justice Riordan has a general preference for disclosure.

But as this trial draws to an end, the parties have negotiated "compromise" solutions regarding the financial records. (This financial information is required in any assessment of punitive damages, as Article 1621 of the Civil Code of Quebec directs the consideration of the wealth or "patrimonial situation" of a faulty party. )

Not telling, but asking

A few weeks ago, Justice Riordan made it clear that the decision about what could or could not be made public was one which belonged to him, and that he did not want to be considered a rubber stamp to any agreements made between parties.

Sensitive to this, perhaps, lawyers representing JTI-Macdonald and Rothmans, Benson and Hedges today presented a longish explanation of why he should accept an agreement to disclose the rolled-up earnings figures, but not any other information, such as gross revenues or expenses.

Justice Riordan had a solution of his own to propose. In a twink of an eye, the financial records of RBH were removed from the court record and replaced with only the "releasable" numbers. A somewhat more complicated arrangement - but to the same end - was set for JTI. (Previous discussions on the JTI situation have been partically disclosed).

Only Imperial Tobacco remained unwilling to reach such an agreement. Suzanne Côté, looking like she had torn herself from her sickbed for the occasion, gave Justice Riordan several reasons - and a handful of legal precedents - to support eternal secrecy for any financial information about her client. (Even under the weather she packs a pretty good wallop!)

And the public interest?

Plaintiff lawyer André Lespérance suggested to Justice Riordan that the two agreements arrived at reflected a "balancing" of competing public interests - the need for transparency and the beed to safeguard business information in a competitive market. He said it was concern for a competitive market that should encourage the judge to rule against ITL's request, and to impose a similar level of public release as had been agreed-to by the others.

I think this was the first time that the plaintiffs have appealed to the competitive cigarette market as something that should be respected.  It was a peculiar and disquieting moment.

Back to prescription

There are a number of laws which have been invoked in this trial -- the Quebec Civil Code and the Civil Code of Lower Canada, the Consumer Protection Act , the Quebec Charter of Rights and the Tobacco-related Damages and Health Care Costs Recovery Act.

These laws allow for different types of faults, different types of damages, different rules on time limitations. That is to say, there are lots of things to argue when trying to settle the question of when the companies can no longer be held liable for any damages simply because the events took place in the too distant past.

As if this were not complicated enough, some of the companies are arguing the date at which the three-year clock should start is September 1994, after which government-mandated warnings about specific diseases appeared on all cigarette packages.

This discussion has been dispersed over the past weeks and today Philippe Trudel provided the plaintiffs' response to the industry's positiosn.

He focused his comments on the inclusion that should be granted to people who became injured after the initial suit was filed (in 1998).

In support of his position, he referred Justice Riordan to the way the issue was managed by the court in a recent case involving bank charges. (Left unstated, but known to all was that the same plaintiffs had, mostly successfully, fought that case through to the Supreme Court.)

A final comb-through of exhibits

Even after several rounds of discussions on the status of certain exhibits, a number of documents remained in limbo. Among these were several which had been marked with a "reserve" because there had not been enough information when they were first proposed to satisfy a decision to rule them in or rule them out.

Again, an agreeable solution had been found between the plaintiffs and Rothmans, Benson and Hedges and JTI.  As a result, a number of exhibits had their status clarified without Justice Riordan's intervention (some were removed, some were given status as 2M documents, some became full exhibits).

And again, it was ITL that preferred to take their chances on a decision by Justice Riordan. Returning for this discussion was ITL's counsel, Nancy Roberts, who competed with plaintiff counsel Gabrielle Gagne for a thumbs up from the judge.

Ms. Roberts won some and she lost some. Included in her successes was what I think could only be described as a pyrrhic victory.

The plaintiffs had wanted to use a 2000 exchange of correspondence between BAT and the UK House of Commons to establish when the parent company accepted certain health consequences of smoking. Ms. Roberts convinced Justice Riordan to strike down this exhibit... only to have him request a more challenging proof:

"Now, I'd like to have an admission from you as to the dates when each company first admitted that smoking caused lung cancer, emphysema, all those throat cancers, and addiction."

Given that the proof closed in 1998, I wonder what they will come up with?

The final days of this trial will take place on December 8, 11, 12 and possibly 15th. Already people are being asked to clean off their desks to make way for the next trial to use this beautiful room....

This post has been back-dated to allow for consistency in indexing

Monday, 17 November 2014

Day 250: The Defence Rests

Today was one of the most pleasant days to sit and watch the tobacco companies present their defence during the Montreal tobacco trials. And not just because it was the last one!

It was up to the Craig Lockwood to present the reasons why fault should not be found with the way that Imperial Tobacco marketed its products, or with the way the companies worked together over decades.

When Ms. Glendinning and Ms. Côté earlier presented ITL's case, it mostly sounded like a reading of their written arguments into the record.

Craig Lockwood
Mr. Lockwood chose a more conversational approach. As Justice Riordan engaged with frequent small interventions, it was often a dialogue -- and an interesting one to observe.

(Justice Riordan at times gives the impression of mentoring this young-ish lawyer. When the others overstate their case, the judge scowls -- but when Mr. Lockwood does so, he is corrected and given an opportunity to restate his position.)

Playing dominoes

One of the plaintiffs' arguments is that the cigarettes are so overwhelmingly harmful that to sell them should be censured under the provisions of Quebec law which forbid people from harming one another.

ITL lawyers have aligned this idea against other parts of the case, suggesting that if Justice Riordan does not accept that selling cigarettes is a fault, then he cannot find fault with the way they were sold. They seem to have identified this as a big weak argument that can be pushed in a way to make other concerns disappear.

Craig Lockwood took this approach as he addressed the evidence of his clients' activities with young smokers or new smokers.

"All  of the arguments collapse on the starting premise that marketing cigarettes is wrongful. If that falls away, the others will fall away."

Let me be explicit. Cigarette ads are not implicitly misleading.

Mr. Lockwood took issue with the idea that lifestyle advertising or other forms of advertising could have left smokers with a false impression about the products they were buying.  "Lifestyle advertising is not particular to tobacco. The fact of lifestyle advertising cannot be a fault." 

And trying to increase the social acceptability of smoking and make people think it was an okay thing to do? "That's what advertising is. That's what it does."

Moreover, there was no evidence to support that marketing had a negative impact. "You don't have a class member or a fact witness who said "this is the impression I got".

He said that the federal government had "dismissed out of hand" the idea that lifestyle advertising should be constrained - citing from a 1977 memo by a senior Health and Welfare Canada official who felt an advertiser "cannot be charged with misleading advertising because he puts his best foot forward and avoids mentioning the possible consequences of using his product." (Exhibit 20137.3)

(The fact that only a year earlier the Minister of Health had written the companies to request that they "Eliminat[e] promotional activities that depict a lifestyle, person or environment instead of being confined to a description of the product" (Exhibit 50001) seems to have slipped Mr. Lockwood's memory!)

The role of government underpinned several of Mr. Lockwood's submission:
* The government was the one who started, and who asked the companies to spend a disproportionate share of their marketing dollars on light cigarettes.
* The government protected the use of "light" as a term that could be used on cigarette packages (Exhibit 21333).
* It advised Canadians to use lower tar brands to reduce lung cancer risk as late as 2002. (Exhibit 30037).
* By allowing advertising, the government allowed the spillover of ads onto a young market.

Innocent until proven guilty. Until it is banned by law, it is not wrong.

As Mr. Lockwood's arguments began to coalesce around the view that as long as tobacco advertising was not banned, there could be moral issues but no legal fault assigned to the way it was sold, Justice Riordan raised the issue of the voluntary code and internal policies of the companies to not target youth.

Only to the extent that it is socially inappropriate, Mr. Lockwood replied. "It can't be the purpose of the courts to be a moral litigant. .... This court is here to sit in judgment of the law, not of the morality." There should be no legal response "until it rises to the level of being wrongful in law."

To this, Justice Riordan gave no indication of agreement.

Viva viva voce!

Mr. Lockwood reminded Justice Riordan that the evidence that had been provided by former employees of Imperial Tobacco was markedly different than the written records from the marketing department.

"Their [the plaintiffs] argument rests on a documentary records," he said before giving his reasons why what was written by marketing officials should not be considered as reliable as the later recall of the men who had directed the work.

Project Viking (which, among other things tried to figure out how to change smokers' views about smoking and health) was "a conceptual project that never extended into marketing."

The writings of Bob Bexon were "theoretical reflections" of a man who was on the outs with his boss.

None of the ITL witnesses had been able to identify that "CRY" stood for "Consumer Research Youth". This shows how unimportant this area of research was, Mr. Lockwood said -- much less than 1% of the total research effort.

The visuals

Curiously, very few ads were shown during the first years of the trial. It was only in these final arguments that there has been a competitive display of how cigarettes were advertised.

Cigarette advertising
as presented by
Mr. Lockwood.
Mr. Lockwood showed a half dozen black-and-white versions of ads, most of which showed only the cigarette package. He contrasted these with the "snippet" or "handful of documents" that the plaintiffs presented during their closing arguments. It would be wrong for Justice Riordan to think that the more contentious ads shown earlier were representative of the company's marketing.

The plaintiffs didn't even provide information on when the ads ran -- in which publications or for how long -- let alone whether anyone actually saw them.

He pointed out that the companies had constrained their marketing activities -- putting ads only in publications with a 75% adult readership (later 85%), and took themselves out of the broadcast market.

Damned if you do, damned if you don't

Mr. Lockwood referred to a few issues in which he said the companies were put in the position of being condemned for taking actions that they would be condemned for not taking. 

They had not assessed whether their ads would appeal to youth -- but would they not have been pilloried for doing research on youth? Their financing of research was considered suspect - but would they not have been condemned for not supporting research? Their programs to discourage sales to youth by retailers was criticized -- but so would the absence of any such programs.

Not a conspiracy. Just businesses and trade organizations.

Mr. Lockwood limited his presentation on why the companies could not be considered to have "conspired" to impede smokers from learning of the dangers of smoking to the role of inter-corporate structures.

The CTMC, he said, was only a "trade organization" and was separate from the company. "It has its own executive, its own employees." Even if there were wrongdoings by the CTMC, they "cannot be immediately visited upon the companies."

Exhibit 20326
He showed again a document that has been much-cited by the defence  -- a memo from Judy LaMarsh asking the companies to make a joint representation to the 1963 Conference on tobacco. Each of the companies has presented this as a request by government for the companies to create an ongoing coordinating agency. Be careful what you ask for, indeed!

(Justice Riordan said that he thought "it makes very little difference" who started the CTMC.)

He reminded Justice Riordan of the parliamentary privilege that was claimed for the positions taken by the companies before parliamentary committee. If the judge were to find them relevant, he should keep in mind that they were not "akin to a media event" and that they should be "judged by the standards of the day".  (Was lying to parliament more acceptable in 1964 than in 2014? good question!)

As for the international tobacco organizations ICOSI and INFOTAB which had been "dragged into" the proceedings - these clearly had little impact in Canada. He pointed out that ITL witnesses could not remember what they were -- and that minutes of CTMC meetings show that actions recommended by ICOSI was considered "inappropriate" for Canada.

To support his view that ITL was independent of its (now fully owning) parent, BAT, Mr. Lockwood referred to the share distribution.  BAT never had de jure control of the company.

Justice Riordan did not let him get away with this one, but was very gentle in pointing out that the shares owned by BAT-controlled entities exceeded 50% and that in a publicly traded company, the threshold for controlling interest was much below 50%.
Exhibit 2000.1

Mr. Lockwood had the sense to back down. "I am not a corporate lawyer."

He pointed to the high-level disagreement about Project Day as an example of ITL's independence.

And then it was over

Given this would be his last opportunity to address the judge, Mr. Lockwood expressed his appreciation for the opportunity to appear over the past two and a half years. Justice Riordan, in turn, thanked Mr. Lockwood for his efforts. It was a nice moment.

A nice moment ruined somewhat when Deborah Glendinning rose to give her "umpteenth verse, same as the first" wrap up.

By the speed with which everyone packed up their bags and vacated the room, it was a checking-out moment.

This Friday a hearing will take place on the confidentiality that should be given to some exhibits. The plaintiffs will present their rebuttal arguments on December 8, 11, 12 and 15.

This post has been back-timed to provide consistency in editing

Friday, 14 November 2014

Day 249: "There's no evidence."

On their third day of closing arguments at the Montreal Tobacco Trials, the lawyers for Imperial Tobacco focused their remarks on the voluminous evidence that was gathered over the previous two years.

Perhaps the trial was too short. For Ms. Glendinning said not once but dozens of times today that "there was no evidence" to support even the most basic components of the plaintiffs' case.

Nothing to support the "quantum" of damages. No evidence of any "common fault".  Even the definition of the classes (the subject of at least two previous court rulings) was "legally insignificant", and "meaningless" because of lack of evidence.

She drew attention to information which had not been discussed at the trial -- like the smoking of contraband cigarettes or those made from roll-your-own tobacco. Without information on these, it was not possible to say for certain whether smokers who died from lung cancer had even smoked the defendants' cigarettes.  (Um, wasn't in the defence teams that asked for these subjects to be ruled irrelevant to the trial?!!)

Even government data could not be relied upon, as these were "the plaintiffs' Statistics Canada numbers. There were no experts."

Not a defective product, but a dangerous one.

Ironically to me, a key argument in ITL's defence is that its cigarettes are very dangerous. It might be a fault to sell a defective product, but there is no impediment to selling a dangerous one, it seems. "It can't be a fault to simply manufacture cigarettes, even though they have inherent dangers." 

The company took all "reasonable steps that were available at the relevant time to reduce the risks of its products."  And if the product was still dangerous 50 years later? Well, that's because of the "scientific complexity" of the problem and the "prime importance" of consumer acceptability.

It was clear that Ms. Glendinning sees the plaintiffs' suggestion that Justice Riordan find that selling cigarettes is "a fault" is a non-starter. Several times today she mockingly presented it as the logical and unreasonable outcome of actions the company was expected to take.
"If nobody will smoke it, it is not going to help anybody. This leads us back to where we started ... don't sell cigarettes, don't put them on the market. That's the fault - because there's no benefit." 
*  "Is that what we are supposed to do? Put a product on the market and tell people not to use it?"

Nicotine a necessary but not sufficient driver of smoking

Ms. Glendinning refuted the idea that ITL took any special steps to control the nicotine levels in its cigarettes. 

She did not deny that cigarettes were a system to deliver nicotine. "Of course Imperial Tobacco knew that there was nicotine in its cigarettes that's what a cigarette is." But there was more to the smoking experience than the nicotine effect. "Mouthful. Inhalation. Throat scratch  -- a whole array of sensory properties."

She assured Justice Rirodan that ITL did not only select leaves from the higher nicotine part of the plant, that it never added nicotine, that it never used ammoniated treatment, and that it never did anything to manipulate pH levels. Moreover, the idea that there was a minimum level of nicotine required to keep smokers happy was only a "hypothesis," and one without any scientific evidence to support it.

Denial? We deny that too

To the claims that ITL denied that cigarettes caused lung cancer, Ms. Glendinning presented a reasonably lengthy explanation of how, in her view, the U.S. Surgeon General had departed from scientifically conventional understandings of causation (where the biological mechanism is establishesd) to a new concept of causation, established through epidemiology.

This argument (canard?) is familiar stuff to all of us alive in the 60s and 70s, and also to anyone present in this courtroom during the testimony of ITL scientists.  

But these employees should not be faulted for continuing to use the "traditional definition" of causation, Ms. Glendinning said. "Even the Surgeon General has not been consistent in what it has called the relationship."

In any event, none of this should matter to Justice Riordan's decision. 

"Even if you accept that we denied causation - so what? So did the Surgeon General. So did everybody. There is no evidence that any class member, let alone all class members, didn't understand the risks, didn't understand causation, didn't understand a distinction between causation and risk factor. .. 

You don't know whether the word 'risk' or 'caused' made a difference and that's the causal connection that has to be proved, You have no evidence on that at all."

No Secrets

Ms. Glendinning said that there was no evidence that Imperial Tobacco had knowledge that was different than that held by government, or that it had withheld information. 

She showed a half dozen or more slides of scientific publications which she attributed to ITL science (they went too fast for me to record them, but the Exhibit numbers I saw are those associated with the testimony of James Hogg and Minoo Bilimoria).

"Where is the secret science? It is a figment of the imagination of the plaintiffs."

Style and Substance

I suspect I am not the only in the court-room whose interest in the ideas presented by Ms. Glendinning was negatively coloured by the stridency of its presentation this morning (and over many months). Justice Riordan looked as though he had heard enough. His arms were crossed - his head tilted and gaze averted. 

If the purpose of oral arguments is to re-engage the judge in your perspective, then Craig Lockwood's approach (this afternoon and over many months) seems more effective.

His more relaxed posture and respectful but conversational tone are a better match to Justice Riordan's own style. His willingness to acknowledge vulnerabilities in his case made the spin less tiresome. As always, by his body language and questions, Justice Riordan showed he was more interested in Mr. Lockwood's presentation. 

What people were aware of and and when they were aware of it

When he began his discussion of evidentiary issues after the lunch break, Mr. Lockwood's first task was to buttress the conclusions of some of the defence awareness experts that the public was "unequivocally" aware of the risks of smoking by the early 1960s.  

He cited the testimony of David Flaherty, Jacques Lacoursière, Raymond Duch -- but made no mention of Claire Durand, the expert who testified for ITL about polling.

These experts had based their opinions on news stories and on public opinion polls. They had not considered advertising or reviewed internal industry documents, as the plaintiffs' polling expert, Christian Bourque, had done. 

The company polling, as he described it, was "limited marketing studies used for a different purpose." They were not intended to measure knowledge at any point in time, but to look instead at trends. 

To illustrate how these polls asked the wrong type of question to establish awareness, he pointed to the question put to smokers about which statement "best describes their feelings". He told the judge that "Feelings have no place in this analysis." 

Mr. Lockwood said that the plaintiffs' were wrong to "cherry pick market evidence to counter expert historical evidence." Using market research as "a collateral attack on awareness evidence" improperly "defies the rules of evidence." 

Awareness vs. belief

Mr. Lockwood said manufacturers had no responsibility to achieve any level of belief among consumers. To require them to do so would set a "new legal standard for awareness."

In the decision tree that had been presented to the court by Stephen Young, Mr. Lockwood said manufacturer were responsible only for a few early steps in the path (marked in yellow). 

The rest, he said, was not their table. 

"That is something that Public Health strive to do and struggle with, frankly, but it is not something that the manufacturer is supposed to do." Anything more would be "too subjective to be a basis for law."

The role of government

And if public health authorities did not step up, this too was not the job of the companies or this court to criticize. 

He cited several examples of government official rejecting the need for cigarette warnings. "If there is equitable knowledge, and the government makes decisions, how can we revisit those decisions?"

No trivialization

Mr. Lockwood said that in the plaintiffs' brief he had counted about 17 public statements about smoking and health by ITL officials. Not much, he suggested, in a history of 50 years. 

Many of these statements could not have affected consumers, as they were in formats (company newsletters, internal correspondence, speeches to the retail trade) that were not widely circulated. "At some point you have to draw the line -- which of those statements could rise to the fact that it influence the public?"

"At the end of the day - people aren't reading the [company newsletter, the] Leaflet. It can't be construed as the equivalent of the Globe and Mail."

(If there is an award for the most disingenuous argument in court, then I would like to nominate this one. What smokers did read in the Globe and Mail is being cloaked in Parliamentary privilege.)

Damage control

Mr. Lockwood addressed some of the most eye-popping records on the trial -- the Viking research studies and the thoughts of Bob Bexon, who directed the research.

"The Court has to distinguish what was being considered and what was done. What matters is what got to the public. The fact that Bob Bexon theorized about releasing leaflets about the benefits of smoking has no relevance to the case." ... "The plaintiffs are basically asking this court to impose liability on the basis of bad thoughts."

 Mr. Lockwood admitted that these records looked bad, and tried to put them in the context of a man who did not at the time have a clear role in the company.

Exhibit 1505.7, A post-viking ad
"They are all within a six month to one year window. He and Wayne Knox were basically trying to find a home in the marketing department." But in the end, "they didn't go out and promote the benefits of smoking."

Well, not directly, maybe!

The closing arguments for Imperial Tobacco will conclude on Monday.

This post has been back-dated to provide consistency in indexing. 

Thursday, 13 November 2014

Day 248: A "no" from every direction

Oh, la la! My head hurts.

It has been an exhausting experience listening to Suzanne Côté's rapid-fire explanations of the many and varied legal obstacles to the plaintiff's case against Imperial Tobacco succeeding. So many principles! So much jurisprudence! So many slides with small print! So many sentences squeezed together!

For a day and a half, Ms. Côté has taken Justice Riordan through a forest of legal theories and case issues to support her client's case. Prescription. Contractual liability. Manufacturers' duties. Causation. Fin de non recevoir. Adverse inference. Punitive damages. Novus actus interveniens. Provisional execution. Collective Recovery.

By mid-day, even those lawyers who had no more to do than watch were showing signs of exhaustion. (In front of the bar were the usual large teams involved in this case, but in the public seats were many involved in other Canadian tobacco suits). All the more reason to admire the stamina of Justice Riordan and Ms Côté, who completed this marathon session without seeming to break a sweat (or a yawn).

No. No. and No. 

Regretfully, my grasp and retention of the details of Ms. Côté's dense presentation are limited. But even I could follow the central link to each of the issues she raised: the plaintiffs did not have a legal leg to stand on, and the judge would be in error if he ruled in their favour.

On prescription (time limitation): The entirety of the Létourneau case for addiction is barred, as more than three years passed between the time the companies put the addiction warning on their products (September 1994) and the filing of the lawsuit in 1998.

The addiction suit was filed too late!
On the Quebec Tobacco-Damages and Health-Care Costs Recovery Act (which lifts the time constraints for lawsuits underway in 2009: This Blais-Létourneau cases cannot benefit from this exemption, as they were not specifically identified in the law. This "exhorbitant" law must be interpreted restrictively, and in any event should not be applied until the industry's challenges to it have been exhausted.

On whether the companies have liability: No, cigarettes were no more dangerous than smokers could reasonably expect. No, smokers assumed the risks of using these products. No, smokers had the responsibility to act prudently, such as informing themselves of the risks of tobacco use. No, even if the company had done something wrong to initiate smoking, the fact that smokers continued to smoke means that they assumed the risks.

On whether any smokers' disease can be linked to tobacco use: No, general causation can be established, but specific causation cannot. To establish specific causation, the plaintiffs would have to show that smoking caused disease in each and every class member, to prove  that the defendants were at fault and to prove that this fault was causally connected to smoking.

On whether it is wrong to sell something as dangerous as cigarettes: No, selling a dangerous product is not a fault in and of itself. The idea of balancing the risks of a product against its benefits is not part of Quebec law.

On whether the judge can make any presumptions about faults, or causation or damages: No, the law requires that any such presumptions be "serious, precise and concordant" - and this has not been established in this case.

On whether the absence of health warnings can be considered a fault of the manufacturers: No, this happened before the Consumer Protection Act was adopted (in 1980). No, the conduct of the manufacturers must be considered in light of the standards of the time, and the absence of warning labels was consistent with the absence of labelling on any products.

On whether a class action should succeed if members of the class have not testified. No, and Mr. Blais (who did not die until mid-2012) and Ms. Létourneau attended some sessions of the trial, demonstrating that they were available to testify.

On whether the heirs of smokers who would have been members of the class should be entitled to any award for compensation: No, Quebec law does not allow for heirs to have the benefit of any judgment.

On whether collective recovery (one big payment) can be assessed against the companies: No, the evidence will not allow for a sufficiently accurate calculation of the total claim -- therefore individual proceedings should be required for each of the 1 million claimants.

The above barely scratches the surface of a day's arguments covering not layers of details and many layers of potential scenarios. The back-up positions in this business seem to be given as much emphasis as the core arguments.

As was the case yesterday, it was Justice Riordan's questions which captured attention. The exchange he had with Ms Côté shortly before the lunch break will have triggered some noon-time discussions.

After umpteen comments about the inability to find a one-size solution for 1 million smokers, the judge pointed to an alternative option available to him.

"What if I decide that individual recovery is impossible and too expensive for compensatory damages?... What if I find fault, I find damages, and I find sufficient causality, and I decide that ...only punitive damages apply? 

He cited Article 1034 of the Quebec Civil Code (pasted below) which (I think) allows for an award to be assigned to an entity, such as a charity.
Quebec Civil Code
Article 1034. The court may, if of opinion that the liquidation of individual claims or the distribution of an amount to each of the members is impossible or too expensive, refuse to proceed with it and provide for the distribution of the balance of the amounts recovered collectively after collocating the law costs and the fees of the representative's attorney.
Ms. Côté responded by saying that he would be in error to do so. (He smiled). She later elaboratesd that in such a scenario - with individual claims waived -- then the class action would no longer be valid, and the suits would have to be dismissed. 

Tomorrow and Monday, ITL will present its views on the evidence gathered during the trial, and respond to the factual claims made against it. 

The trial schedule has again been altered. Next Friday (November 21), some lingering issues around confidentiality will be discussed, as will the parties' varying views on prescription/ time limits. The plaintiffs rebuttal and any potential re-rebuttal by the companies have now been rescheduled to mid-December (8th, 11th, 12 and 15th).

Wednesday, 12 November 2014

Day 247: Jamais deux sans trois? Third on a match?

The closing arguments began this morning for the last of the three defendant tobacco companies in the Blais-Létourneau Montreal class actions.

On behalf of Imperial Tobacco, Deborah Glendinning spent the morning highlighting the key reasons she felt the $21 billion claims should be dismissed.

Unlike the previous defence arguments, which were handled by only one lawyer, ITL's position will be provided by the three Osler lawyers who have been at the helm: Ms. Glendinning (introduction and some evidentiary issues), Ms. Suzanne Côté (legal issues) and Mr. Craig Lockwood (evidentiary issues).

Save the biggest for last

Justice Riordan, who will soon have the daunting task of ruling on this 32-month trial, has often quipped "jamais deux sans trois"  as the three defence teams stood in solidarity on a point of argument.

There were no such quips today. But with the same legal precedents and arguments being repeated for a third airing, perhaps there were hopes on the right hand side of the court that, indeed, the third time's a charm. 

Imperial Tobacco is unquestionably the main defendant in this trial. With the largest market share and consequently facing the largest share of any damages, it has the most to lose. With the greatest amount of evidence against it, it also has the most to be lost on. No wonder that its legal team has dominated the defence proceedings.

The importance of ITL's defence in this and other pending law suits may explain why the public seats were mostly filled. As might be expected, the cheering squad from ITL's head office was there - but so too were lawyers from governments who are leading other Canadian suits.

Style and substance

Deborah Glendinning
Youtube video on class actions
It has been several weeks since I skimmed through the written arguments submitted by Imperial Tobacco's defence team (403 pages and 15 appendices!).

When I walked into the court this morning, all that remained clear in my mind was the aggrieved tone that ran through it. It was an uncomfortable reminder of how easy I find it to confuse style for substance.

I cautioned myself against this temptation as the determinedly stylish Ms. Glendinning positioned herself in front of a plexiglass lecturn, opened a binder thick with well-thumbed speaking notes (highlighted in pink!) and began her remarks.

"The ordinary rules must apply."

She began with the central argument made at length by the other defendants: that the plaintiffs were under an obligation to establish fault-causation-damages at an individual level and that they had failed to do so. She supported her claim that "the ordinary rules of evidence are not changed in any way because this is a class action" with increasingly familiar citations from a number of Supreme Court rulings.

She said the plaintiffs had admitted that they had not met their burden of proof. "They have mounted a commission of inquiry into the industry's conduct, but have failed to establish a common fault, or causation for 1.1 million people, or damages any one person, let alone the entire class."  

It was this failure that had led the trial into uncharted legal waters. "It is remarkable that after 137 days of proof - and thousands of documents - they now admit they cannot prove causation... and because they have admitted that, they are asking this Court to make ground-breaking new law ... to create presumptions out of thin air."

The plaintiffs deserved no sympathy. It was through their "expansive and limitless" claim that they had become "the authors of their own misfortune."

Among the fatal elements of their case was the decision of the plaintiffs to not call any class members to testify. "In the history of class proceedings in this province, a court has never ever granted collective recovery with zero evidence from any representative."  (A few months ago, it was her team that was proposing 60 days of testimony from class witnesses.)

"We don't dispute that"

For the first time that I can recall, Imperial Tobacco admitted to some of the concerns that have been the focus of this trial.

In answer to 5 of the key questions, Ms. Glendinning said there were no disputes from Imperial Tobacco:  "We made cigarettes." "They have dangers. "People can get sick from smoking." "Smoking can be hard to quit." "We occasionally challenged that smoking causes disease."  

No one laughed, at least not out-loud, when she claimed these questions "could have been resolved in two and a half weeks." 

"The duty of the consumer to become informed."

What she did not admit was that ITL had failed in any duty it might have had to warn users about the dangers of its products.

To the contrary. "The manufacture owes a duty to warn about the harms that are not evident to the normal and prudent and diligent users," but was "not under a duty to warn of facts that are of general knowledge."  Nor did manufacturers obligation ever extend beyond warnings to advice.

She cited (at length) rulings against small-claims court cases involving Cecilia Létourneau and the late Joe Battaglia's, in which the judges had ruled that the her company could not be held responsible for these smokers' conditions.

(Later in the day, when elaborating on this argument, Suzanne Côté went further, saying that those who should be held responsible under law were not manufacturers, but consumers. "Civil law requires all people to act prudently -- including those who buy products.")

A dangerous product, yes. A useless one, no.

The plaintiffs have said that cigarettes are sufficiently dangerous and without sufficient usefulness that those who sell them should be considered at fault. Ms. Glendinning spoke derisively of this "late -breaking reorientation of their case."

Such risk-benefit analysis was not part of Quebec law, she said. Even if it were, there would be no justification in such a ruling. "That question is not in the purview of the court. It is in the purview of the legislature ... it is a legal product." 

She found "lots of evidence" that cigarettes had utility. Their addiction expert, John Davies, had cited mental and social benefits to smoking, including that they helped one "look cool." In 1964, the Surgeon General's report had described smoking as a "psychogenic search for contentment." 
Even a plaintiffs' expert toxicologist said that nicotine could benefit those with conditions like dementia and Parkinson's disease.

"Use and abuse of evidence"

On questions of law, I expect to be baffled. But when the company lawyers turn to the testimony and evidence presented during the trial, I am not so much confused as amazed by how different their understanding of facts is from my own.

With some verbal drum-rolling, Ms. Glendinning cautioned Justice Riordan to be suspicious of the claims that the plaintiffs were making. "Be wary of the statements they make and to look behind them to see that the proof they cite is valid proof."

She said there the plaintiffs' brief was "full of examples" -- so many that "they didn't have time to deal with them [all]".  

Yet her small handful of examples did not, to these eyes, contain any obvious clangers, let alone any claims that were not substantiated by the standards one might expect in a history book or a journal article.

Her concerns seemed more with the use of a document to contradict statements made by defence witnesses, or the use of documents that had not been subject to witness testimony, or the appearance of references to "2M" documents (those not admitted for the proof of their contents).

One example she provided of the misuse of a documentary record was the much-cited comment of Imperial Tobacco's former president, Bob Bexon, now deceased: "if our product was not addictive we would not sell a single cigarette next week." (Exhibit 266). The truth of his views, she said, lay in another document where he said that smoking could not be considered addictive, given that so many people had quit.

"Not destroyed."

The conflict between testimony and documents surfaced again when Ms. Glendinning said there had been nothing untoward about BAT's decision to remove scientific reports from Canada.

These papers had not been "destroyed", she said, offering as evidence of this the fact that they had been made available to litigants like the plaintiffs in this case.

She rejected Justice Riordan's suggestion that these documents were available as the result of subsequent court actions in the United States and stressed "there is no suggestion that they were taken away for reasons of litigation."

Letter from lawyer JK Wells about
ensuring scientific documents don't find
their way into lawsuits
Exhibit 1467.2
Justice Riordan pressed again. But wasn't there a letter to that effect?

Once more, she said that testimony from ITL's witnesses should settle the matter. "I don't know what letter there is. But there is the testimony of Mr. Barnes, who swore under oath."

Moreover, she said, the document destruction/retention issue had been discussed twice before in litigation.

One instance she cited was news to me: the documents had been produced in association with the C-71 trial: "Mr. Potter produced those documents for the [Attorney General]. They are available in my office. They never came and looked at them"). The second was the failed Spasic trial.

(Ms. Glendinning did not mention that Justice Gladys Kessler had also cited Simon Potter's activities when reviewing BAT's document destruction policy as part of her finding that the U.S. companies were guilty of racketeering.)

"Relentless trashing of industry witnesses"

The historian Robert Proctor can be forgiven if his ears were burning today. 

Launching into her response to what she characterized as "relentless trashing" of industry witnesses, Ms. Glendinning showed she was not shy to try her own hand at the trashing game. She took some swings at this Stanford University historian who testified here two years ago.

She reminded Justice Riordan of Mr. Proctor's unapologetic dislike for the tobacco industry. She flashed on the screen the amount he has earned as a result of testifying against tobacco companies. 

She brought in new material against Mr. Proctor, e-mailing to the judge a ruling from a Florida court which she said was harshly critical of Mr. Proctor's ethics. (I do not have the ruling, but the story has been told elsewhere).

Justice Riordan, who has shown little appetite for mud-slinging, asked pointedly whether the Florida Court had rejected Mr. Proctor's expertise. Ms. Glendinning admitted that this had not been the case, but that conditions had been imposed on his testimony. 

In contrast to Mr. Proctor, Ms. Glendinning spoke of the high standing of those who had testified at this trial for the defendants (i.e. James Heckman, James Hogg) or who had previously worked for the companies (i.e. Hans Selye, Peter Macklem). She pointed to their many honours and achievements. Nobel laureates, Nobel nominees, Hall of Honour inductees. 

Perhaps she should have stopped there. 

The next slate of witnesses whose reputations she wanted to burnish were former health minister Marc Lalonde and former associate deputy minister of health, Bert Liston. These men, she said, had "no axe to grind" and were "not in the pay of the industry". 

Yet the trial record shows that Mr. Liston was a consultant to the CTMC shortly after his post-blood scandal retirement from Health Canada (Exhibits 884-pp, 1335) and the public record shows that Mr. Lalonde was a registered lobbyist for Alfred Dunhill in opposition to the 1997 Tobacco Act

Epidemiology and causation

There are some times when a question has more information than the answer.

That was the case at the outset of Ms. Glendinning's remarks when Justice Riordan asked her to explain how she felt the provisions of Quebec's Tobacco-related Damages and Health Care Costs Recovery Act, (s. 15) which allow for statistical proof affected her position that individual causation must be established.

She did not really address the question, and so at the end of the morning, the judge asked again. 

"If the Cost Recovery Act allows as a sole proof statistical studies, and if epidemiological studies are by definition based solely on a study of a population, then do I not have to consider that provision of the law as an exceptional opening of population analysis in the context of causation within a class action?"

Sadly, I failed to record her answer before she announced that she had finished her "closing opening" and the court adjourned for lunch.

ITL's elaboration of its positions on various legal issues (prescription, contractual liability, etc) were presented by Ms. Suzanne Côté this afternoon and will be continued - and reported - tomorrow.

This post has been back dated to provide for consistency in indexing