The discussion continued on the plaintiff's proposal that 19 documents be "admissible as testimony" under the provisions of Article 2780 of Quebec's Code of Civil Procedure. There were only a handful of lawyers present, and even fewer observers.
Yesterday, Pierre Boivin and Philippe Trudel had made the case on behalf of the plaintiffs, and Guy Pratte had presented the objections of JTI-Macdonald. Today Suzanne Coté presented the concerns of BAT/Imperial Tobacco and Simon Potter gave the view of PMI/Rothmans Benson and Hedges.
The plaintiff's had clearly gone to some efforts to skinny down their initial request for a hundred or more documents from the Legacy site. Those discussed today could be counted on fingers and toes.
Nonetheless, the objections to these documents took the full time allotted. While a core concern of the companies is that they will not be able to cross-examine the documents, it certainly sounded like they were doing a good job of challenging their credibility or value.
As with yesterday, I am unable to helpfully summarize the legal issues debated, let alone analyze them. But after letting the arguments wash over me for two days I have a much better sense of the importance of the misfit between an historical approach to assessing events and a legal approach.
The documents in question reflect key moments, key decisions, and key thoughts in the 50 year history of tobacco industry actions that are on trial.
They show the prestigious physicist that BAT engaged to lead its scientific efforts, Charles Ellis, directing research efforts on the pharmacological properties of nicotine as early as 1962. They show senior Imperial Tobacco officials meeting in the same year with U.S. public relations agents to strategize their response to the growing concerns about lung cancer (Exhibit 547).
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| Should Bob Bexon's letters become posthumous testimony? |
The problem for the plaintiffs is that the authors of these documents, and the other people involved in these events are dead. Which means that they cannot be called to testify, and cannot be cross examined.
The documents are important historical evidence, but they are apparently flawed as trial evidence. They are historic square pegs and the defendant companies want to keep the holes round. It is now up to Justice Riordan to decide if the holes can be tailored to fit. It is unlikely that he make his decision known until the new year.
On Monday, this trial will resume with the appearance of a former market analyst at Imperial Tobacco, Philip Cadieux.
Tomorrow - a different trial. We will cart our notebooks down to the 15th floor of the Palais de Justice and watch industry lawyers seek to punt any action on the Quebec government's lawsuit until their constitutional challenge has been finalized.
