The opening innings of the double-header tobacco trial now feel like a fading memory. Yet the final rounds are still weeks away. No wonder everyone looks a little restless. Time for a witness-free seventh inning stretch and trial management discussion.
More holes in the Swiss cheese schedule
With only - count'em! - six expert defence witnesses yet to be heard, the end of the combined defence proof is coming into sight. Five of these individuals now have dates against their names: Laurentius Marais, Kenneth Mundt, Bertram Price, Stephen Young, and James Heckman. A date for the sixth (David Soberman, a professor of marketing at the University of Toronto's Rotman School of Business) has been repeatedly and somewhat mysteriously postponed. We are told he is unavailable for personal reasons, yet the mainstream media seem to have no problems reaching him, as they did earlier this week.
All this to say that in about 5 sitting weeks, the tobacco companies will have finished presenting the facts on which they will argue that Justice Riordan should dismiss the two class actions against them.
But even these 5 weeks may be an overly generous provision, as expert witnesses can be pulled at the last moment.
This has happened twice already in the past two months. In January, Montreal psychologist Kieran O'Connor was dropped from the schedule only days before he was due to testify. Today, JTI-Macdonald counsel, Francois Grondin, informed the court that Dr. Dale Rice, an otolaryngologist who was supposed to testify next week, is no longer coming.
The back-story to such decisions is never made public, which makes it even harder not to speculate. Were these decisions made months ago, but only announced at the last minute to prevent complaints about the empty schedule? Is it during the dry-runs with these experts that the lawyers decide against putting their views on record? Inquiring minds will never know.
An overtime inning of parading sick people?
Following those six scheduled experts, the only other witnesses on the defence list are the 60 or so Quebecers whom Imperial Tobacco maintains it will call to trial.
Today Suzanne Côté told the court today that Imperial Tobacco plans to call 20 people from the (lung disease) Blais class and 40 from the (addiction) Létourneau class. These individuals will be asked to come even if the Court of Appeal does not rule in a way that gives the company access to their medical records. (The Court of Appeal hearing on this subject is next Friday).
To my eyes, this seems a courageous thing to do. Justice Riordan's look of concern today when hearing about the death of one of last year's witnesses, Jacques La Rivière, made me think this was a man whose encounter with people suffering from lung cancer and emphysema might make him more, rather than less, sympathetic to their circumstances.
There is still not too much detail on how this will all come about. Ms. Côté was pressured to accelerate the identification of the people whom she would be inviting (subpoenaing?) to trial. She would not agree to give those names in advance of the previously imposed deadline of March 15th, but was asked to provide by early next week the pool of names from which this final list is being drawn.
Ms. Côté was also unsuccessfully pressed to reveal more about the "motions" that are being planned in preparation for these witnesses. But you could almost see the thought balloon above Justice Riordan's head: motions = decisions = appeals = potential delays.
The counter-proof
After that, the only "proof" before the final arguments will be the plaintiff's counter-proof. André Lespérance said this week that he wants to recall up to 5 experts who testified earlier in the trial, as well as one new witness (Paul Slovic). He also mentioned the possibility of witnesses from the companies who might need to testify regarding their financial situations.
An agreement has been reached to allow the plaintiffs to present this counter proof witnesses in April - after the defence experts and before the class members. (Under normal circumstances it would come only at the end of the defence witnesses.)
Amended pleadings? Additional proof? Well, not yet.
Aside from these scheduling issues, the meat in this morning's hearing was a resumed discussion on two twinned requests of the plaintiffs. One motion is to amend their statements of claim, the other is to introduce as evidence the statistical information on which these changes are based.
Most of the changes that the plaintiffs are proposing are related to the ruling last summer in which Justice Riordan ordered a re-definition of the classes in ways that tightened up or clarified eligibility.
These redefinitions result in a recalculation (lowering) of the number of people who are eligible, and consequently a reduction in the amount claimed against the companies. As near as I can tell, the effect will be to cut about $7 billion from the original claim of $27 billion - but I have trouble doing arithmetic with numbers that large!
Other changes to their claim have also been proposed. These include removing the possibility of individual compensation for pecuniary damages ("Too complicated"). The plaintiffs would also like to ensure that Justice Riordan can make a "provisional execution" which, in the case of a favourable verdict, would see money exchange hands before the appeal process has been exhausted.
All three companies seem to oppose all of the proposed changes - even the one that would reduce the claim against them. They also oppose allowing as new proof the Statistics Canada data on which the calculations are based. Simon Potter (Rothmans, Benson and Hedges) spoke most strongly against these two motions.
Justice Riordan again suspended discussion to allow the plaintiffs to amend their proposal to reflect some of the concerns heard today.
The Quebec Tobacco-related Damages and Health Care Costs Recovery Act.
Almost five years has passed since the Quebec legislature passed a law which gave special provisions for tobacco lawsuits - and it is still not clear whether this law will be in place when the current class action suits are decided.
The tobacco industry launched a constitutional challenge to the law, which was heard before Justice Mongeon last October. His ruling has still not been issued. But however he decides, an attempt will inevitably be made to have the Appeal Court reject it.
I have been struck by how rarely this trial makes reference to that law, or the potential it might have to change the limitation period or other criteria for this case.
Today, Justice Riordan said that he expects that he will have to plan for two eventualities - one under the current law, but also in the possibility that the law does not apply. He invited the parties to "inform" him on how to interpret this.
He also told them that he would be circulating an outline of the structure he intends to take in his ruling, something that will also be discussed further in the coming weeks.
The trial will not sit until February 27th. On that day, Justice Riordan will be asked to allow evidence to be admitted under the provisions of Article 2870.
More holes in the Swiss cheese schedule
All this to say that in about 5 sitting weeks, the tobacco companies will have finished presenting the facts on which they will argue that Justice Riordan should dismiss the two class actions against them.
But even these 5 weeks may be an overly generous provision, as expert witnesses can be pulled at the last moment.This has happened twice already in the past two months. In January, Montreal psychologist Kieran O'Connor was dropped from the schedule only days before he was due to testify. Today, JTI-Macdonald counsel, Francois Grondin, informed the court that Dr. Dale Rice, an otolaryngologist who was supposed to testify next week, is no longer coming.
The back-story to such decisions is never made public, which makes it even harder not to speculate. Were these decisions made months ago, but only announced at the last minute to prevent complaints about the empty schedule? Is it during the dry-runs with these experts that the lawyers decide against putting their views on record? Inquiring minds will never know.
An overtime inning of parading sick people?
Following those six scheduled experts, the only other witnesses on the defence list are the 60 or so Quebecers whom Imperial Tobacco maintains it will call to trial.
Today Suzanne Côté told the court today that Imperial Tobacco plans to call 20 people from the (lung disease) Blais class and 40 from the (addiction) Létourneau class. These individuals will be asked to come even if the Court of Appeal does not rule in a way that gives the company access to their medical records. (The Court of Appeal hearing on this subject is next Friday).
To my eyes, this seems a courageous thing to do. Justice Riordan's look of concern today when hearing about the death of one of last year's witnesses, Jacques La Rivière, made me think this was a man whose encounter with people suffering from lung cancer and emphysema might make him more, rather than less, sympathetic to their circumstances.
There is still not too much detail on how this will all come about. Ms. Côté was pressured to accelerate the identification of the people whom she would be inviting (subpoenaing?) to trial. She would not agree to give those names in advance of the previously imposed deadline of March 15th, but was asked to provide by early next week the pool of names from which this final list is being drawn.
Ms. Côté was also unsuccessfully pressed to reveal more about the "motions" that are being planned in preparation for these witnesses. But you could almost see the thought balloon above Justice Riordan's head: motions = decisions = appeals = potential delays.
The counter-proof
After that, the only "proof" before the final arguments will be the plaintiff's counter-proof. André Lespérance said this week that he wants to recall up to 5 experts who testified earlier in the trial, as well as one new witness (Paul Slovic). He also mentioned the possibility of witnesses from the companies who might need to testify regarding their financial situations.
An agreement has been reached to allow the plaintiffs to present this counter proof witnesses in April - after the defence experts and before the class members. (Under normal circumstances it would come only at the end of the defence witnesses.)
Amended pleadings? Additional proof? Well, not yet.
Aside from these scheduling issues, the meat in this morning's hearing was a resumed discussion on two twinned requests of the plaintiffs. One motion is to amend their statements of claim, the other is to introduce as evidence the statistical information on which these changes are based.
Most of the changes that the plaintiffs are proposing are related to the ruling last summer in which Justice Riordan ordered a re-definition of the classes in ways that tightened up or clarified eligibility.
These redefinitions result in a recalculation (lowering) of the number of people who are eligible, and consequently a reduction in the amount claimed against the companies. As near as I can tell, the effect will be to cut about $7 billion from the original claim of $27 billion - but I have trouble doing arithmetic with numbers that large!
Other changes to their claim have also been proposed. These include removing the possibility of individual compensation for pecuniary damages ("Too complicated"). The plaintiffs would also like to ensure that Justice Riordan can make a "provisional execution" which, in the case of a favourable verdict, would see money exchange hands before the appeal process has been exhausted.
Justice Riordan again suspended discussion to allow the plaintiffs to amend their proposal to reflect some of the concerns heard today.
The Quebec Tobacco-related Damages and Health Care Costs Recovery Act.
Almost five years has passed since the Quebec legislature passed a law which gave special provisions for tobacco lawsuits - and it is still not clear whether this law will be in place when the current class action suits are decided.
The tobacco industry launched a constitutional challenge to the law, which was heard before Justice Mongeon last October. His ruling has still not been issued. But however he decides, an attempt will inevitably be made to have the Appeal Court reject it.
I have been struck by how rarely this trial makes reference to that law, or the potential it might have to change the limitation period or other criteria for this case.
Today, Justice Riordan said that he expects that he will have to plan for two eventualities - one under the current law, but also in the possibility that the law does not apply. He invited the parties to "inform" him on how to interpret this.
He also told them that he would be circulating an outline of the structure he intends to take in his ruling, something that will also be discussed further in the coming weeks.
The trial will not sit until February 27th. On that day, Justice Riordan will be asked to allow evidence to be admitted under the provisions of Article 2870.
