Thirty sitting days into the "defence proof" and it is beginning to look like the three tobacco companies will not be needing all of the time that they so energetically argued for earlier this year, or even as much time as the 175 days Justice Riordan confined them to in his ruling last May.
We are only one-sixth of the way into the 175 day outer limit of the trial, so it's early days yet. Nonetheless, the defense portion of the trial looks like it will be taking less time than originally scheduled.
A dwindling witness list
This week we learned that several witnesses are being dropped from October's schedule.
Imperial Tobacco has decided not to recall former president, Jean Louis Mercier. Even though the plaintiffs have rejected their request for "admissions", they have decided that they do not want him to testify again.
An expert witness has also been struck off Imperial Tobacco's list. In a 2011 ruling which rejected their request to interview members of the class, Justice Riordan had permitted "a survey throughout the general population that would include Registered Members" as long as it was not "a disguised discovery." The decision to not take advantage of that opportunity was announced only last week. The suspicious part of me wonders how many waves of polling it took for them to discover the results weren't helpful!
There are now six to eight fact witnesses for Imperil Tobacco who have not yet testified. During the week of October 7th, Tony Kalhok and Ed Ricard will make return appearances. Later that month former president, Benjamin Kemball, marketer Neil Blanche and production staff Karl Hirtle and Jim Sinclair will testify. The final decision of whether Lyndon Barnes and Simon Potter will testify on the subject of document destruction has not been discussed in court, but my sense is that these two lawyers will not appear as witnesses.
A snapshot of the evolution of Imperial Tobacco's list of expert witnesses and fact witnesses drawn from their employees or consultants is shown in the table below.
Rothmans, Benson and Hedges counsel, Simon Potter, also announced the cutting of some fact witnesses from their plans. They had originally planned to call 5 witnesses, but are now calling only 1 - Mr. Steve Chapman. From a scant 6 days of testimony, they are down to only 2.
JTI-Macdonald has not yet adjusted their list of witnesses, but did express concern this week about the timing of their proof.
Their fact witnesses are scheduled for November, but it turns out that a parallel hearing has been scheduled for the week of November 11 before Justice Robert Mongeon. (The exact nature of this subsidiary dispute between JTI-Macdonald and the plaintiffs has not been made clear - "Confidential!" - but by inference it involves the adequacy of the financial records that were shared with the plaintiffs subsequent to Justice Riordan's ruling last summer.)
"I can't put boots on the ground" for both hearings, explained Kevin LaRoche, who this month has been a regular if quiet presence for JTI-Macdonald.
If Kevin LaRoche was hinting for a week's suspension in November, Justice Riordan did not give him much comfort. "You've got experts you can bring in - it's still two months away. We'll fill it up."
The evolution of Imperial Tobacco's witness list:
May - October 2013
Witness
|
Date of prediction
|
||
Pre-trial
|
January 2013*
|
Actual/
As currently Scheduled* |
|
Expert witnesses
|
|||
Flaherty, D
|
1
|
4
|
3
|
Durand, C
|
1
|
2
|
1.5
|
Dixon, M
|
2
|
10
|
3
|
Consumer Survey Expert
|
§
|
**
|
0
|
Fact witnesses
|
|||
Barnes, L
|
§
|
1
|
Uncertain
|
Blanche, N
|
§
|
§
|
1
|
Boswall, A
|
§
|
3
|
0
|
Chan, A
|
§
|
3
|
0
|
Crawford, P
|
§
|
2
|
Possible Affidavit
|
Duplessis, G
|
5
|
3
|
2
|
Hirtle, J
|
§
|
§
|
1
|
Kalhok, A
|
§
|
3
|
2
|
Kemball, B
|
§
|
4
|
2
|
Lalonde, M
|
7
|
**
|
3
|
Massey. S
|
10
|
10
|
Deceased
|
Mercier, JL
|
2
|
2
|
0
|
Porter, A
|
§
|
4
|
2
|
Potter, S
|
§
|
2
|
Uncertain
|
Read, G
|
§
|
5
|
3
|
Richard, E
|
4
|
4
|
2
|
Sinclair, J
|
§
|
§
|
1
|
Total days identified
|
32
|
62
|
26.5
|
* Including cross-examination
|
|||
§ Not identified on witness list
|
|||
** Identified on list, but no time estimate given
|
|||
The trial resumes on October 7th, with the return of one-time head of marketing for Imperial Tobacco, Anthony Kalhok.
