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.