Tuesday 17 June 2014

"Make health objectives necessary outcomes"

The Montreal tobacco trials are the only recent Canadian tobacco lawsuits to have reached the trial stage, but there are several more in development - including the 9 provincial suits that have been filed since 2001.

In the form of a press release and open letter, civil society organizations and individuals delivered a message to the plaintiffs in the government suits today. The press release is reproduced below. The open letter can be found here.

---------------------------------
Health and legal experts press the provinces to make health objectives necessary outcomes of massive lawsuits against big tobacco

TORONTO, June 17, 2014 /CNW/ - More than 130 prominent Canadians, including the heads of health agencies and professions, deans of public health schools and professors of law, released a letter today that urges provincial and territorial governments to make public health remedies essential objectives of their health care cost recovery lawsuits against the tobacco industry.

"All provinces have passed legislation to facilitate suing Canadian tobacco manufacturers and their international parents," said Garfield Mahood, president of the Campaign for Justice on Tobacco Fraud. "Governments want to recover the costs of treating tobacco-related diseases allegedly caused by over five decades of industry conspiracy and fraud. They allege that the companies involved lied about tobacco risks, including addiction, second-hand smoke and targeting kids. If proven in court, the wrongful behaviour at the heart of the lawsuits would constitute the largest fraud in the history of Canadian business and, unquestionably, the most destructive fraud in the history of Canadian public health. In response to the conduct of this rogue industry, we are asking our attorneys general and ministers of health, 'Will you put public health at the top of your list of litigation objectives?' ".

"Nine provinces have filed cost recovery lawsuits with claims to date exceeding $110 billion," said Richard Schabas, former Ontario chief medical officer of health. "But the financial losses, although massive, are dwarfed by the devastation caused to public health by the industry's predatory behaviour."

"Based on the 2014 report of the United States Surgeon General," said Mary Jane Ashley, professor emerita of public health at the University of Toronto, "we estimate that cigarette manufacturers have caused or contributed to two million premature deaths in Canada over the five decades from 1964 to 2014."

"These lawsuits should be about much more than money," said Rob Cunningham, lawyer and senior policy analyst with the Canadian Cancer Society. "We applaud these lawsuits but want the attorneys general and health ministers involved to put justice and public health at the top of their lists of desired outcomes for their litigation."

"Health agencies have a real interest in this litigation," said Fernand Turcotte, professor emeritus of public health at Université Laval. "Thirty percent of cancer deaths, 30% of heart disease deaths and over 80% of chronic obstructive lung deaths are caused by the products of Big Tobacco. And health agencies have spent millions over the years of the alleged fraud servicing the needs of tobacco victims. These agencies have good reason to demand major reforms of the industry and other health outcomes from these lawsuits."

"The Campaign for Justice on Tobacco Fraud was formed in reaction to the irresponsible sweetheart smuggling settlements that the federal government negotiated with Big Tobacco in 2008 and 2010," said Robert Solomon, distinguished professor of law at Western University. "In those settlements, health remedies to deal with the illness caused by the smuggling appear not to have been given any consideration.

"Unlike American tobacco settlements where the manufacturers were taken through trial," added Professor Solomon, "the criminal investigations and civil lawsuits in Canada produced settlements for pennies on the dollars claimed, no disclosure of industry documents and no real incentive for the manufacturers to change their behaviour. And the tobacco executives charged criminally were given get-out-of-jail free cards. The Campaign for Justice on Tobacco Fraud was formed to prevent a repetition of such settlements where health care cost recovery lawsuits are concerned."

"We want the provinces and territories to establish a public trust to combat the epidemic created by the industry," said Michael Perley, executive director of the Ontario Campaign for Action on Tobacco. "We want a trust at arms-length from government, funded by the proceeds of court awards or settlements, a public interest trust able to implement the hard-hitting campaigns that governments often will not initiate on their own."

"We believe that the public disclosure of tobacco industry documents should be a priority objective of Canada'sattorneys general, a remedy ignored in the smuggling settlements," said Flory Doucas, co-director of the Quebec Coalition for Tobacco Control. "The public disclosure in the United States of 40 million pages of tobacco industry documents is considered by health interests around the world to be one of the great achievements in tobacco control of the last century. Governments must make public disclosure a non-negotiable demand."

"We have ongoing concerns about the amount of resources that governments have allocated toward defeating 'the wall of flesh,' the sheer number of leading private sector litigators that the industry is massing against the provinces," said Mahood. "And we have been told repeatedly by experienced litigators that governments will never achieve real success in these lawsuits unless they are as aggressive as their American counterparts, unless individual attorneys general champion this litigation and take the industry to trial."

"A key industry public relations strategy designed to weaken public support for the lawsuits has been to accuse governments of being 'senior partners' with the manufacturers over the half a century of the alleged fraud," said Robert Evans, Killam professor of economics at the University of British Columbia. "Governments may not have introduced strong enough policies to address the tobacco epidemic. They may even have been negligent. But they were not 'partners' with the industry in fraud and conspiracy."

The Campaign for Justice on Tobacco Fraud is a health advocacy group incorporated under the Canada Not-for-profit Incorporations Act.

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Thursday 5 June 2014

Day 234: Defence proof grudgingly closed

Late yesterday afternoon, I received word that the Montreal tobacco trials would reconvene this afternoon, and that it would be the last session until the final arguments begin in late September.

That is to say, today was the last day for the "Defence proof". I don't think many heard about today's suddenly-scheduled sitting, or perhaps no-one cared to come to see the end of this stage of this long trial.

There were very few lawyers (i.e. only a dozen) in front of the bar, and I was the sole onlooker. Even Justice Riordan had not been made aware that this, indeed, was IT for the defence proof. He smiled broadly when he heard the news that there would be no more witnesses.

There was not much to be done on this last day. For slightly over an hour, a fine tooth comb was run through the now-massive set of defence exhibits. (In addition to media reports, I count about 2,500 exhibits for Imperial Tobacco, 2,000 for JTI-Macdonald, and a paltry 400 for Rothmans, Benson and Hedges.)  Much of today's business was taken up in addressing the status of various exhibits, removing reserves, correcting indexing errors.

Some final pieces of evidence were put on the record. Under confidential seal now rest several hundred documents related to the insurance policies of the three companies. (These are relevant to their capacity to pay, apparently). One or two things will be done by e-mail in the coming weeks. One of these is an agreement being negotiated on the defendants' side about how many cigarettes each company sold in Quebec.

Imperial Tobacco would appear not to favour the calculations that the plaintiffs submitted last year, but have not yet apparently convinced their co-defendants to agree on new numbers. Imperial Tobacco's market share in Quebec is lower than in the rest of Canada, and JTI-Macdonald's is higher, so a difference in opinion between these two companies on how the pie of any damages should be cut is not so surprising.

Reluctant to call it over 

Within an hour, all that was left was for each of the defendant parties to declare their proof closed. None of them volunteered to do so - and plaintiff lawyer, André Lespérance stood to tease his colleagues on the other side into making this declaration.

It was like pulling teeth. For professionals trained in the art of delivering fine speeches, they were surprisingly reticent to mark the occasion with words. On behalf of Imperial Tobacco, Craig Lockwood mumbled something that the transcript might have caught more clearly than I did.

 RBH's lead, Simon Potter, spoke quite clearly -- but only to explain why he was NOT going to declare his proof closed, even though he  "had no intention of making further proof." Not until the final thread is knotted, appears to be  his view.

Guy Pratte, for JTI-Macdonald, was saved by Justice Riordan's intervention. As though dealing with teenagers, the judge took the matter into his own hands. 'I will assume the proof is closed unless I hear from you."

Running time?

With that declaration, it seems fair to stop the clock, and to time how long the defence took to present its case in comparison with their predictions at earlier stages of the trial.

In February 2012, each party provided a "provisional declaration" of the witnesses they intended to call. At that time, two of the three companies foresaw more than 87 days in testimony (I did not see a time estimate from JTI).

In January 2013, at the request of Justice Riordan, they provided a common "preliminary and partial list of defence witnesses." More than 216 days of testimony would be required, plus additional time for the several witnesses that would be called from government.

In April, just before the defence began, another set of intended witnesses was provided. This list would have taken slightly less time -- at 183 days for witnesses. It was on the basis of this list that Justice Riordan ruled last May 15th that the companies would have to limit themselves to no more than 175 days.

They certainly had no trouble doing so.  They used 94 to 97 trial days (depending on whether their proof was considered to start from Day 138 or Day 141 until it closed on Day 234) of which about 85 were used to hear witness testimony. Much less than half the time they ever thought they needed, and only slightly more than half the time Justice Riordan allocated.

A table is pasted below.

Between now and the time the trial is scheduled to return (September 22, 2014), there are two important deadlines. The plaintiffs are to have their written "facts and arguments" submitted by July 8th, and the defendants must submit theirs by September 16th. Further developments will be posted here!

Happy summer...

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Comparison of estimated days of defence witness testimony at various stages of the trial

Imperial Tobacco
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Barnes, L
1
**
*
Blanche, N
**
1
Boswall, A
3
**
Chan, A
3
**
Crawford, P
2
**
Duplessis, G
5
3
**
3
Hirtle, K
**
1
Hogg, J
0.5
Kalhok, A
3
**
1
Kemball, B
4
**
Massey, S
10
10
**
Mercier, JL
2
2
**
Porter, A
4
**
2
Potter, S
2
**
Read, G
5
**
3
Ricard, E
4
4
**
1
Robitaille, R
1
Sinclair K
**
0.5
Total
21
46
14
Rothmans, Benson and Hedges
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Barnett, J
1
**

Black, G
1
**
Chapman, S
2
2
**
3
Other marketing
1
**

Other Executive
0.5
**

Total
4.5
3
3
JTI Macdonald
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Gage EP
n/a
n/a
3
Gentry, J
*
4
**
2
Hood, J
*
**
Hoult, P
*
6
**
3
Howie, R
*
4
**
2
Lane, F
*
**
Lang, Ed
*
**
Marcotulio, R
*
4
**
Massicotte, GP
*
**
Newman, L
2
**
3
Piehl, D
*
**
Poirier, M
*
**
Robb, R
*
4
**
2
Sauro, M
**
Trudelle, M
*
**
Walker, W
**
Total
24
15
Health Canada
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Bacynsky, JA
1
Beatty, P
*
1
Bégin, M
2
Bray, DF
2
Catley Carlson, M
1
Cherry, WH
8
Choinière, D
*
2
2.5
Colburn, HN
10
Collishaw, N
*
*
12
Crombie, D
1
Dodge, D
1
Forbes, WF
*
Fry, JL
1
Jean, M
1
Kaiserman, M
5
*
4
Kirkwood, D
15
Lalonde, M
7
*
3
3
Law, M
3
16
Leclair, M
2
Liston, AJ
5
*
4
2
MacEachen, A
*
Morrison, AB
10
*
Neville, B
*
Rawson, B
2
Rickert, B
1
*
2
Robinson, J
*
7
Rogers, B
*
1
Agriculture Canada
Ashby, E
0.5
0.5
Basrur, PK
1
Brandle, JM
1
*
1
Cartier, J
*
2
Court, W
*
*
2
Johnson, PW
5
3
1
Marks, CF
5
*
1
2
Martel, Y
*
1
Pandeya, RS
3
*
3
Rosa, N
1
Size, C
0.5
½
Walker, K
2
Zilkey, B
3
*
3
1.5
Total Government
60
?
108.5
12
Experts
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Barsky, S
*
2
*
1,5
Bourget, D
*
4
*
2
Davies, J
2
4
*
3
Dixon, M
2
10
*
3
Duch, R
5
4
3
2
Durand, C
1
2
1.5
Flaherty, David
1
4
3
3
Goumeniouk, A
*
4
*
Heckman, J
5
6
*
2
Lacoursière, J
5
3
3
4
Marais, L
*
7
*
3
Mundt, K
5
4
*
2
O’Connor, K
5
4
*
Perrins, R
5
10
6
3
Price, B
2
4
*
2
Rice, D
*
2
*
Semenik, R
5
4
*
Soberman, D
*
5
*
5
Viscusi, K
*
2
Young, S
*
2
Consumer Survey
*
Total
43
83
15
41
Experts
Witness
Feb 2012
Jan 2013
Apr 2013
Actual
Class members
60+
60
60?
0
Total
188.5+
216+
183.5+
85
** identified on the witness list, but no time estimate given