"Special circumstances demand special measures, and this is a case that is replete with special circumstances."
Justice Brian Riordan, January 14, 2013
When the Montreal tobacco trial resumed this morning after a 3-week recess, there were a dozen or more trial issues to be discussed in a prolonged case management discussion.
Its doubtful any were as top of mind as the industry's forced disclosure of its plans to defend its case, which was one of the later items on the morning's agenda. But even before we got to that key moment, there were a host of other interesting and important items to be discussed.
A few additional witnesses for the plaintiffs
Last week, Justice Riordan issued his decision on the fate of 19 documents that had been the subject of a two-day hearing on their admission under the provisions of article 2870 of the Quebec Code of Civil Procedure. Some documents, he said, should be put into evidence in the regular way as there were witnesses available to allow this to happen. As a result, one witness who had expressed no enthusiasm for the task, Jacques LaRivière of the CTMC, will be asked to testify again. He is now scheduled to return on March 11.
Also new to the witness schedule will be Bill Farone, a former director of research at Philip Morris. He had been engaged as an expert witness for the federal government, and their escape from the trial now frees him up to be a fact witness for the plaintiffs. Dr. Farone is scheduled to testify on March 13 and 14.
Former Imperial Tobacco marketer, Wayne Knox (who had been described by Jacques Woods as "the smartest man" he knew) will be asked to testify on February 13th. First, however, the plaintiffs will have to find him. Imperial Tobacco told Justice Riordan that they knew where he lived, but would have to be ordered to share his whereasbouts with the plaintiffs before doing so. Justice Riordan obliged them in this suggestion.
Another witness now anticipated for February 13th will be Joe Heffernan, who was the head of Rothmans, Benson and Hedges during the 1990s.
The end of the road for the "plaintiff's proof"
With these last additions, the plaintiffs now expect to wrap up their proof on March 21st.
David Flaherty, who appeared briefly this past spring, is the author of a "four seasons" report that the plaintiffs want to be admitted to the trial. Justice Riordan has ruled this should happen, and last month the Quebec Court of Appeal supported his decision. Today Imperial Tobacco said they were reluctant to have the plaintiffs recall him to allow this document to be filed, as they are considering making a further appeal of their position to the Supreme Court of Canada.
The announcement of this intention to appeal may have been unexpected, but there was no surprise at their later statements that none wanted to try their luck at the Supreme Court to overturn the ruling which ended the industry's action in warranty against the federal government. This week was the last day that such an appeal could have been filed.
Another judgement whose appeal is in the air is Justice Riordan's ruling last week on the use of Article 2870. Justice Riordan firmly shot down Suzanne Coté's suggestion that discussion on other documents should be suspended until this is resolved. "We are going to live with that judgement," he said" We can make adjustments if necessary [because of an Appeal Court ruling], but we are not going to waste a day."
Ten thousand new CTMC documents and counting
As directed, new CTMC documents were provided to the plaintiffs during the Christmas break. Some 10,000 have already been handed over and a further 30,000 are expected before the end of March. Further reports on delivery will be made next month.
Of these documents, Philippe Trudel indicated that the plaintiffs have already identified several as potential trial exhibits. Jacques LaRivière may be kept busy on his return.
Money, money, money... or maybe not so much
Several months have passed since the company's were ordered to provide the plaintiffs with recent financial statements. It would seem that the documents provided have raised a number of concerns. (The confidentiality with which these records are treated makes it especially challenging to follow discussions, but my inference is that the financial reports are suspect in the level of profits they show). Mr. Trudel and Mr. Lespérance indicated that discussion on these financial records may require witness testimony. The last days of the plaintiff's case, March 19-21, have been set aside for this purpose.
Loose ends and unfilled expectations
Concerns about a number of documents or exhibits remain unresolved. These include the plaintiffs' request for the status of electronic versions of the historically unique CMA survey data collected by Imperial Tobacco. Apparently there is yet another version of the 1984 CTMC voluntary code that has not been tabled, and it has an important wording difference on the use of posters. The parties have not agreed to the amount of David Schechter's testimony that will be included in this trial record. Nor is there a decision on the fate of the draft version of Imperial Tobacco's "Where We Stand" position paper.
Also unfulfilled are some requests made by Justice Riordan to the defendant companies. He had asked some weeks back for an agreement from them on the market share of each company in the years involved. (Deborah Glendinning said today she thought it was not relevant and would take time, Simon Potter said it was methodologically difficult. André Lespérance reported that the plaintiffs had been working on a draft based on the company's reports that were on the trial record). His request for a list of "critical dates" which identified historic moments like Surgeon General reports has also not been responded to.
Say what?
Keeping a straight face as he watched her from the back of the room was John Kiser, who moved from Brown and Williamson to Imperial Tobacco around the same time that BAT reorganized its operations in the United States to help shield itself from U.S. litigation. What are the odds that the right people are on his speed-dial?
At last! A schedule for the defense and a list of witnesses
After a first failed deadline, Justice Riordan had given the companies until today to share the outline of their defense. Even as the discussion on other issues moved towards this big agenda item, the companies continued to show reluctance to speak about the road ahead.
Deborah Glendinning held a very thin set of papers in her hand when she rose to report that the companies had "prepared a proposed preliminary draft" of the defense line of witnesses. Before distributing the list, which had still not been circulated electronically, she confirmed her earlier hints that the companies would be trying to have the case thrown out or pared down before they even got to the stage of defense witnesses.
"We have several motions that we will be filing very soon after the plaintiffs finish," she said. "The nature of these motions may have implications for our proof."
Justice Riordan did a good job of acting casual as he asked "What are these motions?"
The biggest, she said, would be a motion "seeking a dismissal, or a narrowing, or a clarification of the issues raised by the plaintiffs on the basis that they have not provided proof to substantiate their allegations." Also planned was "a motion to define the use of all of these 2M documents [documents filed as a result of Justice Riordan's May 2 decision]." She gave a lengthy explanation of the companies' need to have these issues resolved "before the defense starts."
Their list of proposed witnesses is reproduced below. There are several encore performances, such as Jean-Louis Mercier, Andrew Porter, Ed Ricard, Tony Kalhok, John Barnett.
Aside from the Quebec smokers who will testify as members of the class action, half of the 39 witnesses identified were from the federal government. The government may be removed from the case, but it still seems central to the industry's defense! Without counting the time required for government witnesses or for testimony from class members, about 180 trial days were anticipated, Ms. Glendinning reported.
At a rate of 120 days per year, this list would extend the trial into 2015.
Arguments before arguments
Justice Riordan called for an extended morning break to allow for the witness list to be reviewed and afterwards turned to the question of what would happen March 21st when the plaintiffs had finished making their proof. He invited Ms. Glendinning to be more specific about the companies plans to schedule their motions "I said I would give you a bit of a break, tell me what you would like," he said.
Ms. Glendinning said that the companies would not be able to begin to work on their motions until after March 21st. Doing so would would require a week or so, as well as time for the plaintiffs to prepare their counter arguments. "We are also asking for ruling on the motions before we start our defense," she said. "We will need some time for you to render a judgement on those motions."
Justice Riordan did not bite. "You are going to have to convince me that either one of these motions should be heard at all. ... The [motion for dismissal or narrowing] is a very exceptional request – one I have never seen – you are going to have to give me some background in law as to why I should even consider that." Without missing a beat, he moved to schedule a debate on the legal arguments for February 14th, with a requirement for written motions to be submitted by January 31st.
Those wanting to make plans for April may have to wait a bit ...
The double life of Simon Potter
It might seem unusual for a lawyer representing one party in a case to be called as a witness in the same case by the other side. Even odder to be called as a witness for a co-defendant.
Simon Potter is a central figure in one of the narrative themes of this trial, which involves the instructions BAT gave Imperial Tobacco to destroy scientific and other documents and the actions of Simon Potter and other lawyers in making this happen. In the 1980s and 1990s, while working with the firm Ogilvy Renault, Mr. Potter represented Imperial Tobacco. After a gossip-fueling departure from that firm to McCarthy Tétrault, he switched tobacco clients too and now represents Philip Morris' Canadian operations.
After the plaintiffs identified Mr. Potter as a witness in this trial, they did not press for him to be disqualified from representing Rothmans, Benson and Hedges. Instead, they took "the position that they will not move for his disqualification to act in the file, asserting that it is up to him, based on the Advocates' Code of Ethics, to withdraw voluntarily." (Judgement February 9, 2012)
In the end, the plaintiffs did not call Mr. Potter to the stand, and relied instead on other participants in these events, such as Roger Ackman and Lyndon Barnes, to testify.
Today, Justice Riordan was clearly not pleased to see Mr. Potter's name again on the witness list. "Isn’t this going to cause a problem? Didn’t we go through machinations to keep you off the list?" he asked.
Mr. Potter sidestepped the concerns. "The problem in substance isn’t different than the problem we had earlier but managed to live with. It is not a decision that I have made or my client made," he said and clarified "It is similar to when the plaintiffs had me on their list."
Justice Riordan stressed that he wanted another way found to avoid Mr. Potter testifying. "My position is clear." Mr. Potter said he could be relied on to pass along that message.
No mention was made of the code of ethics and what expectations would normally be on lawyers in this situation.
Some cracks in the united front
Differences in the approaches taken by the three companies were made expressly clear today. Guy Pratte, speaking for JTI-Macdonald, stressed that not all of the witnesses listed related to all of the companies. "These are three companies and three separate cases," he said. "One company may feel they need government witnesses, another not," he said tellingly.
RBH also continued to show a different view towards putting its witnesses before the judge. As he has throughout the trial, Simon Potter indicated a desire to minimize the appearance of former or current company representatives. Earlier today he was surprised by the suggestion that a former RBH president, Joe Heffernan, would be called to testify, and quickly moved to communicate his interest in finding an arrangement that would avoid this happening. RBH has identified only 2 witnesses from its company, compared with 15 from Imperial Tobacco.
More expertise required?
The proposed witness list also provides for two additional expert witnesses. One of these might be called, Mr. Potter explained, to provide insight into "when does a warning begin to be necessary, how should it be written, what kind of detail is it useful to go into." A decision has not been reached among the companies, and Justice Riordan put a deadline on making one. The companies have two weeks after the plaintiff's last expert witness to decide whether they will want further experts.
Justice Riordan said he had concerns about the time implications of further expert witnesses. "I want this done in a timeframe that doesn’t result in the trial being suspended. I don’t want to spend my life here, as pleasant as you people are."
156 documents move quickly into evidence
By lunch-time, the big decisions of the day had been made. When the court resumed in the afternoon, a much reduced crew set to the task of reviewing the plaintiff's proposals to put documents related to BAT's group conferences on the record. Almost all of those proposed were given exhibit numbers (from 1347 to 1375), and will soon be available.
Later in the day, the status of documents that had been allowed following Justice Riordan's decision last week on documents related to Robert Proctor's expert report was clarified. New exhibits include polls of doctors smoking habits (Exhibit 1376), trends in attitudes towards smoking and health (Exhibit 1377) and different types of cigarettes (Exhibit 1378) as well as a Sir Charles Ellis' historic review of North America (Exhibit 1379).
This January 10th ruling will be important tomorrow and in the coming days, when there will be more requests for the introduction of evidence under Article 2870. And there is lots more to say about that ruling - stay tuned.
Wednesday the trial will hear from the plaintiff's second expert witness, Mr. Christian Bourque. (To accommodate schedules, the session will not open until 1:00 p.m.).
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Preliminary and partial list of defence witnesses| Days | |
| I AWARENESS | |
| Jacques Lacoursière | 3 |
| Robert Perrins | 10 |
| Ray Duch | 4 |
| sub total | 17 |
| II IMPERIAL WITNESSES | |
| Stewart Massey | 10 |
| Andrew Porter | 4 |
| Gaetan Duplessis | 3 |
| Graham Read | 5 |
| Mike Dixon | 10 |
| Ed Ricard | 4 |
| Claire Durand | 2 |
| Tony Kalhok | 3 |
| Andrew Chan | 3 |
| Anne Boswall | 3 |
| Benjamin Kemball | 4 |
| Jean-Louis Mercier | 2 |
| Purdy Crawford | 2 |
| Simon Potter | 2 |
| Lyndon Barnes | 1 |
| sub total | 58 |
| III RBH WITNESSES | |
| Steve Chapman | 2 |
| John Barnett | 1 |
| sub total | 3 |
| IV JTI WITNESSES | |
| Peter Hoult | 6 |
| Ray Howie | 4 |
| Robin Robb | 4 |
| Richard Marcotulio | 4 |
| Jeff Gentry | 4 |
| David Soberman | 5 |
| Lance Newman | 2 |
| sub total | 29 |
| V GOVERNMENT WITNESSES | |
| Marc Lalonde | |
| Denis Choiniere | |
| Murray Kaiserman | |
| Bert J. Liston | |
| Allan MacEachen | |
| Bill Neville | |
| B. Morrison | |
| B. Rogers | |
| N. Collishaw | |
| M. Brandle | |
| W. A. Court | |
| Hamilton | |
| Marks | |
| Martel | |
| Pandeya | |
| Zilkey | |
| Perrin Beatty | |
| Dr. W.F. Forbes | |
| Dr. J.C. Robinson | |
| William S. Rickert | |
| J. J. Cartier | |
| VI EXPERTS | |
| James Heckman | 6 |
| Richard Semenik | 4 |
| Alexander Goumeniouk | 4 |
| Kieron O'Connor | 4 |
| Dominique Bourget | 4 |
| John Davies | 4 |
| Laurentius Marais | 7 |
| Bertram Price | 4 |
| Kenneth Mundt | 4 |
| Sanford Barsky | 2 |
| Dale Rice | 2 |
| David Flaherty | 4 |
| Possible Warnings Expert | |
| Possible Consumer Survey Expert | |
| sub total | 49 |
| VII CLASS MEMBERS | 60 |
| Total | 216 |
The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.
Step 1: Click on: https://tobacco.asp.visard.ca
Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.
Step 3: Return to this blog - and click on any links.
