So much so that I thought the plaintiffs might take more than one of the four days set aside for rebuttal to respond to the mischief that has, to these eyes at least, been attempted.
Perhaps they thought that the defendants' idiosyncratic version of events was self-evident to Justice Riordan - or perhaps they sensed the judge's impatience to get this thing over with. For whatever reason, their rebuttal was limited to today's hearing.
It made for an intensive review of the key aspects of the trial. An observant colleague pointed out to me that if there were one day of hearing to select as an overview of the trial, today was it.
But first, the substitute
The day began with the (re-)introduction of another team-member on Imperial Tobacco's bench. Mr. Eric Préfontaine, from Osler's Montreal office replaced Ms. Suzanne Côté as the team's expert in Quebec law. (Most of Imperial's counsel are from Toronto). His introduction was the only direct reference to Ms. Côté's dramatic reassignment in late November to Canada's Supreme Court.
I noted that Mr. Préfontaine did not take Ms. Côté's place on the front bench - but sat discreetly in the third row!
The opening volleys
As Mr. Préfontaine's introduction and a few other introductory issues were dealt with, plaintiff lawyer André Lespérance stood near the lectern facing the judge, seemingly impatient to begin his final comments in this trial.
Mr. Lespérance is usually the voice of polite understatement. Today, however, he seemed to be in touch with his firebrand. For 40 minutes, he landed successive verbal punches on the industry's arguments against collective recovery. So fast, so furious, so French that my fingers could not keep up!
Collective recovery in this trial takes a population approach, and one dependent on a population health epidemiological approach. It seems like most of the companies' efforts in this trial have been aimed at ensuring that this collective approach is denied in favour of individual assessments.
Mr. Lespérance put this strategy in the context of the companies' decades' long refusal to accept the epidemiological facts that smoking caused disease. As he presented it, the companies' criticisms of the analytic model used by the plaintiffs' expert, Jack Siemiatycki, were a similar bad faith effort. (Mr. Siemiatycki's approach is now available as an article published this summer in the American Journal of Public Health.)
He pointed out that, for their many and detailed methodological quibbles, the defendant experts had come to similar conclusions to Mr. Siemiatcycki: they agreed that cancer registries were the right source to establish how many people were sick, and that the proportion of these diseases due to smoking was in the range of 90% to 95%.
With almost all lung cancers due to smoking -- and with the "gift to the defendants" of a minimum smoking history of 5 pack years - it was wasted effort to look for other possible reasons for a smokers' lung cancer.
"Smoking is the Mount Everest of lung cancer," he reminded Justice Riordan. Even the cancers caused by asbestos - "which is so dangerous that it has been banned" - were only a Mount Royal in comparison. It was the defendants' expert who had once calculated that among those exposed to both asbestos and smoking, it was tobacco use which was 5 times more likely to cause lung cancer.
All the experts had agreed that about 90% to 95% of lung cancers were caused by smoking. The time spent in arguing how to get there had been a "useless debate" which wasted months of trial time. (This was one of several not-so-veiled references to the plaintiff's allegations that the companies abused trial procedures in the way they strung out the trial).
He encouraged the judge to see that further trials to establish individual eligibility would worsen the situation: "The defence is saying we should have decades of trial to find the 5% of lung cancer cases that are not due to tobacco." To require victims to go through this would be "a denial of justice".
Either cheats or liars -- and other moral faults
Well within the hour, Philippe Trudel replaced Mr. Lespérance in the centre of the room. He began by pointing out some contradictions in the defendants' logic: "They say that everyone saw the warnings on the ads, but that there is no proof that anyone saw the ads." ..."Health messages were supposed to have influenced them to not start smoking or to convince them to stop smoking; on the other hand advertising had no influence on smoking."
The companies provided other forms of contradictory messages -- as when they insisted on attribution of health messages. "The public had two messages -- that the government doesn't want you to smoke, and the companies are not in agreement [with health concerns]"
In quick succession, Mr. Trudel addressed several marketing practices which the companies had tried to reframe in recent weeks. The false reassurance of putting filters on cigarettes was not a new cause of action, he pointed out, but had been included in the reports prepared by the plaintiffs' marketing expert, Richard Pollay.
The industry's blurring of a distinction between reduced tar cigarettes and the marketing term "lights" was one that the government had not endorsed. Nor was the use of lifestyle imagery to promote brands. Justice Riordan was pointed to the testimony of former Health Minister Marc Lalonde to this end, and to other examples of government concern.
The defendants' only marketing expert - David Soberman - had said that the tobacco companies used the same approach to their marketing as producers of other consumer goods did. Just because "everyone did it" did not mean it was okay, said Mr. Trudel. "Not all products are on the same level. If the question is whether it is right to associate a product which causes death with health, prestige and sports, the answer must be 'no.' This is not a good practice." He stressed that it was under the criminal law powers of the federal government that tobacco marketing was now banned.
As Mr. Lespérance had done with lung disease, Mr. Trudel defended the use of population data to quantify the number of addicted smokers, and to establish whose tobacco use can be considered the result of addiction. He reviewed the criteria for eligibility in the Létourneau case- one must have started smoking by 1994, have smoked on a daily basis in 1998 and to still be smoking in 2005.
Is it a fault to sell to youth?
The plaintiffs have not argued that the marketing of cigarettes to younger people is a distinct fault, but have presented it more as further in the spectrum of the misinformation or absence of information given to consumers.
It was as Mr. Trudel was pointing out the contradictions between the companies' stated positions and their marketing practices with respect to youth that Justice Riordan asked one of the more challenging questions put to the plaintiffs.
The judge pointed out that for most of the period, the legal age to sell cigarettes was 16, and that advertising was allowed by law, even though voluntary restrictions were in place. In such circumstances "what is the fault of reaching people under 18?"
Mr. Trudel said that because young people had a lesser capacity to assess risk, and because of the companies' and societies' view that this was unacceptable, it should be seen as a "moral fault."
Moreover, under Article 1457 of Quebec's Civil Code, "it is not because it was not forbidden that it was permitted."
Bruce Johnston concluded the plaintiffs' rebuttal by linking his comments to the outline he had provided at the beginning of the trial.
Thirty-three months ago, he had said that the companies would argue that they were not at fault because: 1) cigarettes are a legal product, 2) that "everybody knew" that smoking was dangerous, 3) that smoking is a choice, 3) that you can't prove that it killed any individual person, 5) that the government is responsible and 6) that the smoker, the victim, is to blame.
"The pervasive fallacy of the legal product."
Cigarettes might be legal, but they were not endorsed by government. Mr. Johnston pointed out that even when the Supreme Court overturned earlier court decisions (and the industry's view) that the federal regulator had no constitutional right to constrain cigarette marketing, it noted that the goal of government was to "eradicate the practice" of smoking.
He derided Simon Potter's suggestion that the companies were "obedient regulatees" and that they had little effect against a continually declining rate of smoking. "With different decisions [by the companies] there would have been a different history. The incidence falling could have happened 20 years before, or even 30 years before."
Nor did the status of cigarettes under federal law change the obligations under Quebec's civil law, and its codification of standards of behaviour that apply to manufacturers.
"In selling a product there will always be a risk-benefit analysis. Some products are so dangerous that there is no countervailing benefit - and no reasonable person would subject anyone to the dangers of consuming a product when it is not going to be of any use to them. I don't see how you can justify putting a product such as this one on the market, knowing what we have known for some time."
Everybody knew -- but what exactly?
In perhaps the strongest attacks on any of the industry's experts, Mr. Johnston suggested that he historians hired by the tobacco companies to testify about the common knowledge of the harms of smoking had been "duped" or worse.
Jacques Lacoursière was dismissed out of hand - but David Flaherty came in for some unflattering reminders -- of his arrogance about other historians, of his hubris and unwillingness to admit that the tasks he had performed fell short of what a "good historian" might have done.
"What credibility can we give to an expert who, like a great number of experts presented by the defence, had their sources chosen for them and refused to consult sources that they knew about and they knew were relevant?"
Among the press clippings that were the source documents used by Jacques Lacoursière to substantiate his report were over 10,000 tobacco advertisements, said Mr. Johnston. None of these had been referred to, or given any weight.
Raymond Duch was the third industry expert to testify about common knowledge. Mr. Johnston described his conclusions as "if you know anything, you know everything" and compared the polling answers he relied on as comparable to people acknowledging that butter, or air pollution or radiation could be harmful to health.
"If you are to say that knowing something can be risky for you is enough [to assume risk], there is very little left of the manufacturers' duty to inform." The law compels disclosure of all the risks, he said. "The more risky, the more explicit the warning must be."
(Justice Riordan was also reminded that Mr. Duch had not received the industry's internal polling - even after asking for it).
The idea that "everybody knew" did not apply to the witnesses who testified at this trial - most of whom, Mr. Johnston pointed out, had not known. (He referred to a table prepared as an aid for argument, but which was not displayed). "Very few thought it was addictive - or that it caused any disease at all. How does that square with the theory that people had knowledge?"
Trapped? It's up to you to crawl out
An example of this was Ms. Létourneau's experience in small claims court, where Imperial Tobacco had held her responsible for not responding to the warnings about addiction after she had become an addicted smoker. (He also pointed out that the nature of small claims courts meant that a judgement there could not be held against her in future proceedings, although the companies had made frequent suggestions that it should).
Bringing individual members to testify would have been a form of victim-blaming, suggested Mr. Johnston -- or certainly would have opened them to "a withering examination of blame and yielded nothing of use."
It was not uncommon, in Mr. Johnston's experience, for class actions to be decided without direct testimony from witnesses. He pointed to cases that his firm had managed - on access to abortion, on bank fees, on consumer credit - had involved no testimony beyond discovery, as had happened with Ms. Létourneau and Mr. Blais.
(Mr. Johnston pointed to other sections of the Quebec Civil Code that narrowed the ability of a manufacturer to shift acceptance of risk to the user, i.e. Article 1477 and 1478).
The rebuttal ended with an appeal to the nature of addiction, and its effect on people's capacity to act. Addiction did not make it impossible to quit, said Mr. Johnston, but it was at the heart of the problem of smoking.
"It is the disease that leads to other diseases."
At the end of the day, Imperial Tobacco signaled that it will submit further written arguments on time limitations (prescription) and possibly comments in reply to today's events. The other two companies said their comments would be limited to a few minutes only. Justice Riordan adjourned the court until Thursday morning.
(This blog has been back-dated to provide consistency in indexing)