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