Day 124: One Year Later

For information on accessing documents, see note at the end of this post 

The Montreal tobacco trials entered their second year today. There was no birthday cake.

A year ago the court-room was packed with spectators and the corridors were full of camera crews and well-wishers. Today, the camera crews were back in force -- but for a difference trial and on a different floor. Outside our 17th floor courtroom the hallways were silent. No onlookers joined us on the public benches.

During a dull moment today, of which there were more than a few, I calculated that in court-time alone more than 15 person-years of work-time have been spent in courtroom 17.09 on this case. And we are not yet past the half-way mark!

The return of Christian Bourque

The witness today was Christian Bourque, vice-president of the polling firm Léger Marketing, and the plaintiff's expert witness on polling.

Mr. Bourque's mandate was to review the companies' ongoing knowledge of smokers' perceptions and knowledge about the risks of smoking and to identify the apparent goals of the industry's studies about the risks associated with smoking. (His expert report is Exhibit 1380)

This was Mr. Bourque's second appearance at the trial. Following Justice Riordan's instructions in January that an amended report was required before he could testify about Quebec-specific findings, he did a second analysis of Imperial Tobacco's research data.

It would seem that, according to Imperial Tobacco's studies, the state of knowledge about the harms of smoking was worse in Quebec than in other provinces. In this second report (Exhibit 1380.2), Mr. Bourque found that Quebecers' beliefs about smoking were weaker, and that the difference is statistically significant.

"There seems to be a difference in the level of knowledge or perception of the dangers of smoking in Quebec compared with elsewhere in Canada. Quebec respondents who knew or perceived dangers with smoking were proportionately smaller." (my translation).

Mr. Bourque also found that during these core years of the period in question, Quebecers thought you could smoke more cigarettes without hurting your health than did smokers in other parts of Canada.

Mr. André Lespérance asked no questions of his expert witness today. The brevity of his examination was countered by the perplexing exhaustiveness of the cross-examination by Imperial Tobacco's counsel, Suzanne Côté.

A long cross-examination.

Mr. Bourque appears to be another victim of Imperial Tobacco's recent tactic of detailed and prolonged cross-examination. For virtually the entire day, Suzanne Côté read from a thick binder of prepared questions, moving down the list as though taking inventory. Despite her obvious skills in grilling witnesses (no follow-up questions missed), there was an artificial note in this marathon of questions.

Ms Côté applied a fine-tooth comb to the methodology used by Canadian Facts, often focusing on methodological issues. Watching her were the expert witnesses for the defence team -- Montreal sociologist Claire Durand and Canadian ex-pat Raymond Duch.  I am sure they felt good that their detailed criticisms had been given air-time.

I confess I was unable to figure out the strategic thinking behind this approach, even to the extent of properly describing it. Many questions seemed benign and unimportant. Mr. Bourque's safe but mostly unmemorable answers were of no apparent assistance to either side.

Could the company be ragging the puck in order to delay the trial moving to the next stage? The thought occurred to me when Ms. Côté ceded the floor with not enough time left in the normal sitting day for the other two companies to get their turn. If the intent had been to force another day for Mr. Bourque, it failed. Justice Riordan insisted that this testimony finish today - which it did, an hour later than usual.

Knowledge and perception

One of the industry's core defences in this case is that the risks associated with smoking were "known" to Quebeckers.

It seems obvious that Justice Riordan will be required to rule on the epistemological issue about smokers' "knowledge" of health risks. Christian Bourque's appearance today may have foreshadowed some of the arguments the companies will make, and perhaps their cross-examination was designed to add yeast to this fermenting debate.

For example, each of the companies' lawyers today used Mr. Bourque's presence to enter into evidence results from seemingly arcane polls.

* Ms. Côté pointed to a Gallup poll that found that only 4 out of 5 Americans ("the same number as those who believed smoking was "dangerous for anyone" in 1991) believed that the earth revolved around the sun and not the other way around.

* Simon Potter drew attention to a Leger Marketing poll that questioned Canadians' belief in the supernatural (57% believed in angels!) to challenge the view that awareness and beliefs were different.

* Catherine McKenzie pointed to a 1991 Angus Reid survey showing that only 82% of Canadians correctly stated that there were 10 provinces.

Despite the distractions of the cross-examination, Mr. Bourque's report and his testimony are a reminder of how rich Imperial Tobacco's market research was. Many of the documents on which his report was based are available as exhibits 987.1 to 987.50.

They can't all be good days.

Yesterday's testimony by Wayne Knox was a delight. Tomorrow's appearance by William Farone looks very promising. Today will be soon forgotten.


To access trial documents linked to this site:

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

Day 102: What is a reasonable delay?

When I arrived at the courtroom of the Montreal tobacco trials this morning, the lawyers were all dressed up in their legal robes. This is a convention reserved for days when there are witnesses, so it seemed natural to assume that the plaintiff's expert witness, Mr. Christian Bourque, would continue to be questioned about his report on the polling conducted by Imperial Tobacco over several decades. A natural assumption, but not a correct one.

(Yesterday Justice Riordan reined in the plaintiffs when they asked questions about polling results that were not included in the report. He had given them the choice between continuing today by sticking to the straight and narrow of that report, or asking to file an amended version).

As these things go, there had been an overnight exchange of e-mails (one of which was reportedly sent at 3:00 a.m. -- this is a scary business!), and other options were on the table. In the end, it was Justice Riordan's second option which was selected, and Mr. Bourque is now scheduled to return on March 4th for one day.

The sudden hole in the morning was soon filled with further trial management discussions and unresolved issues.

Tit for Tat? Not if it causes a delay

Earlier this week, the defendants had confirmed that they want to argue "pre-defense" motions that will try to throw out some or all of the claims against them on the basis that they have not been proven.

Today, Philippe Trudel reminded Justice Riordan that the ability of the plaintiffs to ask for sections of the defense to be struck down were left hanging. (In late November 2009, Justice Riordan made a ruling on such a request that favoured the plaintiffs, but the appeal was suspended as part of a pre-trial agreement to schedule the trial).

Mr. Trudel offered that the issue of paring down the defense might also be discussed at the same time that the tobacco companies presented their rationale for paring down the claims against them. It wasn't clear if he was bluffing or whether this was an option the plaintiffs were seriously considering. In either event, Justice Riordan blew this suggestion out of the water.

He didn't want any delays in the proceedings, said the judge.  "My firm intention is to get to the end without suspensions or delays. Unnecessary steps which risk a suspension, I will avoid." He pointed out that the case had been underway for 15 years, and that it needed to come to a judgement. "If I wasn't clear before, I am now." His tone was even more blunt than his words.

Mr. Potter as witness

Bruce Johnston was in court for the first time this week, and stood to signal that the plaintiffs planned to raise objections about Simon Potter being on Imperial Tobacco' list of witnesses.  "Mr. Potter says it is the same thing as his being on [the plaintiff's] list, but we say it is not the same thing." 

(In July 2011, Justice Riordan had turned down RBH's request to have Mr. Potter struck from the plaintiff's list of witnesses, saying however that "they do not have the right to call Mtre. Potter as a witness unnecessarily." He committed that the court "will not allow Mtre. Potter to be called unless and until it is clear that there is no other alternative.")

Justice Riordan made clear that he shared concerns about the prospect of Mr. Potter being both lawyer and witness in this trial, but fell short of saying he would intervene to prevent it. "I have written at length about the difficulty of calling an attorney as a witness. I understand that Imperial Tobacco has him on the list of witnesses. I am going to apply the same rules as I did with the plaintiffs. If there is another way of making proof, I strongly urge you to explore it, because it is not the best way to proceed."

He looked at Suzanne Coté, who was leading Imperial Tobacco's defense in court today. She gave very cold comfort, and implied that Mr. Potter's fate as an ITL witness hinged on Justice Riordan's decisions on their pre-defense motions. "There may be a way, depending on the result of the February 14th discussion," she said.

Planning for April

It is still far from clear what will happen in the weeks after the plaintiffs wind up their case at the end of March, and today Philippe Trudel raised again the importance of having some clarity about whether the trial was sitting in April or not. "We need to block in dates to be able to organize our schedules, I want them to tell us how long they want before presenting their defense."

(There are very different business considerations for the two teams of lawyers. For the plaintiffs, an empty month adds more overhead to the financial burden of working on contingency, but a scheduled pause might permit them to find time for paying clients. For the defendants, an extra month adds to billings. As a tobacco lawyer famously said "The way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all of his.”)

Mr. Trudel put his concerns bluntly. Are the plaintiffs going to have to wait until the Court of Appeal has ruled on the decisions on the pre-defense motions. A forceful "No Way!" was the response from the bench. Justice Riordan then asked the companies to share their thoughts.

Suzanne Coté uncharacteristically gave a rambling answer to the effect that they would wait and see how the rulings went on their pre-defense motions. "I can't say that a two-week delay will be sufficient. Nor am I gong to say we need a 6 month delay."

Simon Potter was a little more artful. He acknowledged the "duty of the Superior Court" to make a judgement and referred to the complexity of the case. He suggested that the motions that are expected to seek the case to be thrown out or narrowed would hasten evens. "We see our motions heading towards a shortening rather than a lengthening of the trial."  A pause would be a good investment of time, he said.

Bruce Johnston pointed out that the case had been working with the same allegations for over a decade and that the defendants "must have some witness they know they are going to call." 

Justice Riordan agreed with this point, and formally instructed the defense team to "prepare your case as if those (pre-defense) motions are not going to be heard. I am not saying that they wont be heard. I am instructing you to be prepared to start after a reasonable delay."  

He poured further cold water on the idea that the pre-defense motions would be heard. "I will have a better feeling after I have heard you on the 14th [of February, when the legal justification for the pre-defense motions will be presented]. I doubt that I will say anything more than 'are you ready to go after a couple of weeks after the end of the proof'."

More expert witnesses for the defense? Maybe. Maybe not.

On Monday, the defense teams had indicated that they might want two additional exert witnesses (one on warnings, and one on consumer surveys). Discussion on that day had left the impression that they would have until the end of March to confirm this intention. The fact that this went against a previous agreement on timetables prompted a reflection, and Justice Riordan is now proposing that the industry present their reasons for such a request on February 14th at the same time they will be present legal arguments for their pre-defense motions.

Well before noon, Justice Riordan pointedly unplugged the power cord to his computer and asked "Are there other things?  I have a judgement to write."  The court adjourned until Monday morning. 

Next week, the plaintiff's expert witness on marketing, Dr. Richard Pollay, will testify. 

Day 101: Breaking the Envelope

For information on accessing documents, see note at the end of this post 

Wednesday's session of the Montreal tobacco trials opened with a continued review of whether historic documents fit the criteria established by Justice Riordan for admission under "Article 2870."

It closed, however, on a note of suspense, after Justice Riordan gave the plaintiffs overnight to consider how they would change their approach to their second expert witness, Christian Bourque.

The morning - more "2870" discussions

Nancy Roberts ignored Justice Riordan's advice - "you don't have to contest everything,"  and on behalf of Imperial Tobacco continued to energetically oppose each of the documents the plaintiffs are seeking to have admitted under the provisions of Quebec Civil Code that allow for documents to be put into evidence without a witness. So too did her colleagues who represent Rothmans, Benson and Hedges and JTI-Macdonald.

Yesterday, the lawyers had set a slow pace, but today Justice Riordan signalled his impatience. He was particularly severe when it appeared that his ruling of last week was not reflected in the arguments he was receiving.

You read my ruling," he admonished plaintiff lawyer Pierre Boivin, who was filling in for André Lespérance and trying to put in evidence a document showing how minutes of a 1967 research meeting in Montreal were shaped through revisions. "Is it a draft or not?" He was unmoved by Mr. Trudel's explanation that their team wanted to demonstrate differences between two versions of a meeting record. "I won't accept it on the basis it is a draft."

The documents under review today came from the records of the US and UK tobacco companies that are now on the Legacy website or at BAT's Guildford depository. It was clear that the defendant lawyers did not want these documents on the record, and that their intention was to keep the corporate veil between the Canadian operations and their parent companies unpierced. They vigorously argued that any documents from the Legacy site that traced the development of knowledge within the U.S. and British parent companies should be considered irrelevant when there was no evidence that the information had been shared with the local operations.

If, when Justice Riordan makes his decision on these documents, he agrees with their arguments it will further underline the importance of directly involving the parent companies, as the provincial lawsuits have been able to do.

The afternoon - Mr. Christian Bourque

Christian
Bourque

Christian Bourque is a familiar figure to news audiences in Quebec, as he is the public face of Quebec's big polling firm, Léger Marketing. Although political and social polling is less than a fifth of his firms' work, he explained today, it is what most people associate him with. The company's real bread-and-butter comes from their extensive market research for commercial firms.

The plaintiffs faced few difficulties in having Mr. Bourque qualified as an expert in polling and market research. Unlike the situation with Mr. Proctor, his qualifications were readily acknowledged by the industry lawyers. (It may have helped that he has previously been qualified as an expert witness in Quebec courts, and has defended corporations against consumers class actions.)

Nor did the defendants' lawyers express any concerns about the 38-page expert report prepared by Mr. Bourque and two associates at Léger Marketing. (Well, at least not yet)

When the objections came, they were focused on the questions that Mr. André Lespérance wanted to put to his witness. It was Justice Riordan's sympathy to these objections that has put a spanner in the plaintiff's plans.

Mr. Bourque's Expert Report

The mandate given to Léger Marketing by the plaintiffs' firms (by my reading and translation) was to look at the market research reports provided under discovery and to 'provide an opinion on the significance and scope of studies intended to measure perceptions of tobacco products.' Specifically, their opinion was sought on what the companies knew about consumers' perceptions/knowledge about the risks associated with smoking and what the purpose of gathering such information might be.

The 'read-in' rule means that Mr. Bourque was not asked to present his report to the court today. Most of the lawyers in the room would have reviewed it thoroughly in the 18 months since it was filed. So too would the industry's own expert witnesses engaged to offer very different views of public knowledge on smoking, and to criticize Mr. Bourque's report. Today, these witnesses sat with their clients. Claire Durand, a sociologist at the University of Montreal sat with members of ITL's counsel, and Raymond Duch, an ex-pat Canadian currently at Oxford University, sat with JTI-Macdonald's lawyers.

To prepare his report, Mr. Bourque's team went through the reams of polling data gathered (mostly) by Imperial Tobacco over several decades. As a preface to their findings, they caution readers that when it comes to polling the line between "perceptions" and "knowledge" is very thin. They report that from the surveys used by the tobacco companies, it was often not clear whether it is perception or knowledge that was being measured.

They conclude that the industry's studies showed that a 'good number' of people did not perceive a danger with tobacco products. Between 1971 and 1990, those who felt that there were conditions under which smoking was not dangerous fell, but never to zero (it went from 52% to 20%). Their team found no survey results showing near-universal knowledge that smoking was dangerous for everyone.

Nor did they find that the specifics of health dangers were widely known. In 1988, only 56% of smokers associated heart attacks with smoking. Smokers did not identify nicotine, tar or gases in cigarette smoke as a source of risk. Many smokers did, however, think some tobacco products (those with filters or light cigarettes) could be smoked in greater quantities without causing problems.

Mr. Bourque concluded that the companies conducted their research to measure the impact of anti-smoking efforts or other external events. The companies were assessing the impact of perceptions of risk on smokers behaviour and their decision to quit smoking. He felt it was logical to conclude this was not only to predict future market demand but also to adjust marketing strategies.

In 1972, a bare majority of smokers thought
smoking was dangerous for anyone

Mr. Lespérance's failed efforts to get additional information about Quebec smokers

The industry surveys often provided regional or demographic break down of data, but Mr. Bourque did not include in his report the separate analysis for Quebecers that this data would have permitted. By contrast, the defendants' expert witness, Mr. Duch, has prepared a Quebec-specific analysis using polling sources like Gallup to suggest a much higher level of knowledge about the harms of smoking.

Mr. Lespérance tried to offer Mr. Bourque the opportunity to provide shed light on the situation in Quebec. He drew the expert's attention to the 1978 results of  ITL's survey (Exhibit 987.12, p. 403/39), which showed that Francophone smokers were half as likely to think that you could not smoke more than 2 cigarettes without causing damage (16% vs. 31%).

Mr. Lespérance's line of questioning drew a sharp rebuke from the bench. "You asked him to add the numbers, but we can all do it -- and at much less expense," said Justice Riordan. "You are pushing the envelope."

A few similar questions later, and Justice Riordan put his foot down. Mr. Lespérance was not to ask questions that went beyond the expert's mandate or report. "You have a choice," the judge said. "Either you can ask questions that highlight the report as it is, or you amend it."  

Mr. Lespérance tried to convince the judge that it was more appropriate to view this report as a form of counterproof to the tobacco companies main line of defence, which is that 'everyone knew' about the dangers of smoking. He appealed to the need for some manoeuvering room, but Justice Riordan didn't agree. "You have broken the envelope. That is my decision."  

An hour before regular quitting time, the session ended. Overnight the plaintiffs are to decide whether they will limit themselves to the report as written, or whether they will seek permission to have it amended.

With 6 more expert witnesses lined up to testify over the next 5 trial weeks. Justice Riordan's forceful response today has likely given them a lot to consider!

What happens tomorrow?  Either there will be more testimony from Mr. Christian Bourque, or there won't. You heard it here first.

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.