Day 126: Are we nearly there yet?

At 9:30 this morning, William Farone was sitting calmly as the bailiff gave his idiomatically Montreal instruction to "please close your cell phones" which heralds the arrival of Justice Riordan and the opening of proceedings in the Montreal Tobacco trials.

A half hour later, the former Philip Morris scientist took his leave. The cross-examination had evaporated overnight.

The lawyer who represents Philip Morris' interests in this trial (through their Canadian subsidiary, Rothmans, Benson and Hedges) is Simon Potter. Mr. Farone had correctly predicted yesterday that Simon Potter would keep the cross-examination ball in play until the end of the day yesterday in order to allow the lawyers to meet overnight and think up some "hard" questions.

What he had not predicted was that today Mr. Potter would have no such questions.

Instead it was Ms. Nancy Roberts, who represents the interests of Philip Morris' global rival, British American Tobacco, who stood to ask a few short questions about reconstituted tobacco. (The trial has already learned that for a long period, Imperial Tobacco manufactured this product under contract to the other companies. By the way it has been described, reconstituted tobacco bears the same relationship to tobacco leaves as bologna does to meat).

Her purpose was to get Mr. Farone to acknowledge that he had no personal knowledge of the way in which Imperial Tobacco Canada manufactured its reconstituted tobacco leaf. He agreed he had none, and the cross-examination was over.

Mr. Trudel used his 're-direct' to expose a misleading question put to the witness yesterday by Simon Potter, who had suggested that the U.S. Surgeon General had concluded there was a health benefit from low-tar cigarettes. Yesterday Mr. Potter had asked Mr. Farone: "And you know that the Surgeon General says that the use of filter cigarettes and low-tar cigarettes decrease lung cancer; don't you?". Mr Farone seemed familiar with the 1,000 page report. (Exhibit 601-1979 - large file) "He said that? I think what he said was, if you were going to smoke, you should smoke a lower tar... I don't think he actually said that it reduced it.?"

Whether or not health authorities endorsed low-tar cigarettes is an important issue in this trial. Today, Philippe Trudel, pulled out the report and invited Mr. Farone to clarify that the Surgeon-General had reached no such conclusion. He also pointed to the Surgeon General's concerns about ventilation of cigarettes possibly increasing the risk of disease, and the need for warnings about the issue. Mr. Farone testified that the ventilation was a strategy for the objective of a safer cigarette, and  reaffirmed his view yesterday that some levels of ventilation reduced smokers' exposure to toxins, other levels didn't.


"Did Philip Morris ever warn its customers or clients that smoking lower tar nicotine cigarettes may increase their chances of getting disease?" asked Mr. Trudel.

"They did not make that specific warning," replied Mr. Farone.

Loud and Clear!

Shortly after Mr. Farone left, Simon Potter rose to ask about the remaining time for the plaintiffs to finish their case. "I want to review the bidding" he began and then started to complain about the number of hanging threads that remain on issues that are supposed to be finished this month.

Justice Riordan seemed indifferent to Mr. Potter's concerns, most of which are currently under negotiation with other defendants. (One example is whether the companies would accept an affidavit in lieu of a court appearance of an elderly witness.)  The judge did, however, uses the occasion to lead a card from his own suit -- his pushed again for scheduling of the defense witnesses.

Each time the issue is raised, Justice Riordan expresses his concerns with more force - in both tone and substance. This time, he also added more details to his expectations, and put a time frame around some of them.
* He told the companies to produce a clear list of their proposed witnesses, one that follows the standards used in most trials and which includes both the length of time required and subject matter that will be discussed for each witness. This list must be produced by April 9th.
* He signalled that he will try to reduce the number of witnesses, especially from the government. "I am going to work with you to see if we can shorten it to some extent." 
* He wants clarity on how many members from each class of victims (the Letourneau addiction class or the Blais lung disease class) will be questioned.

He also clarified that he would allow a few loose ends on the plaintiffs case. The plaintiffs will be able to question certain witnesses on their knowledge of documents when those witnesses are called to testify by the tobacco companies, even if it is some time after their "proof" has theoretically closed and the questions aren't technically a cross-examination. The documents in question (most of which are on the trial record as "2M" records) will be known in advance. Some flexibility will also be allowed on a few other remaining issues (including a document whose status is now under appeal to the Supreme Court).

Even-handedly, he had some tough words for the plaintiffs too, and cautioned them against adding further to the list of new evidence than necessary.

Despite the tough talk, things seem far from settled. The first week of April is now semi-scheduled with the last witnesses and arguments on the plaintiffs case (7 more sitting days!). Where we go from there is still a mystery.

Who is in? Who is out?

Justice Riordan has also been wrapping his head around some of the details that may become important later in the trial -- especially if he finds in favour of the plaintiffs!

He wants more clarity on who is included in each of the classes, and furthered discussion today on the issues he wants better defined. At the time the actions were certified, the Blais case included both throat and larynx cancers even though -  as the judge pointed out today - larynx cancer is usually counted as a throat cancer.

Another of his concerns was the application of epidemiologist Jack Siemiatycki's conclusion that the legally attributable risk was 4 or 5 pack-years of smoking (depending on the disease in question). This is a higher amount than the threshold defined in the certification ruling, which was for those who smoked at least 15 cigarettes a day for 5 years, which is equal to 3.75 pack years.

A third clarification he requested was the treatment of people who became addicted to smoking when smoking cigarettes manufactured by companies that are not on trial. He cited, as an example, someone who was already a smoker when they immigrated to Canada and settled in Quebec. "We need to exclude people who smoked other cigarettes."

Back to "2870"

By late morning, the trial had returned to a review of documents that are already on the trial record, but which are a lesser standard of evidence - the "2M" documents.

Last week, when the current review started, there were 300 documents to review and the process was painful for all. Today was no picnic, but it was a much smoother and less tension-filled process. I would attribute most of the difference to a change in style on behalf of the Imperial Tobacco lawyer in charge of this process, Nancy Roberts. (The documents from the other companies had all been previously reviewed).

While continuing to put her clients' concerns on the record, she made less of a performance of it, and allowed the process to run about as quickly as possible. As a result, the remaining documents on this list were decided on. At the end of the day, Justice Riordan thanked her.

Again, almost all of the documents were approved for admission as evidence under the 2870 rule. The plaintiffs succeeded in selecting documents that were linked to Justice Riordan's earlier rulings.

Because documents from dead people are allowed, the plaintiffs were able to introduce many letters, speeches and reports authored by or sent to former presidents of Imperial Tobacco - John Keith, Paul Paré, Ed Wood - and senior officials from British American Tobacco. Much of this materials dates from the 60s and 70s, when the company was trying to hold back the tide of scientific evidence about their products.

Correspondence from senior BAT officials - like Sir Patrick Sheehy - were also entered into evidence in this way. Against objections that "This witness is not dead - he simply does not want to come!" Justice Riordan took the view that it was not reasonable to go through the legal process to obtain testimony from foreign witnesses.

By the end of the day, the few dozen documents that remained on this list had been dealt with. It's powerful reading, and must be even more powerful evidence.

Next week will begin with the return of two witnesses -- Jeffrey Wigand and Ed Ricard. On Tuesday, Jack Siemiatycki will return. On Wednesday and Thursday, the plaintiff's expert witness on addiction, Dr. Juan Negrete, will appear.

Day 125: William Anthony Farone

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

William Anthony Farone, Ph.D. is a former Philip Morris Director of Applied Research, and is considered in lawsuits to be an anti-tobacco expert. Dr. Farone was hired at Philip Morris to make safer products and to find business alternatives outside the tobacco industry for Philip Morris. 

Wikipedia

William Farone was originally scheduled to be an expert witness in the Montreal Tobacco trials, testifying on behalf of the federal government. Soon after the government's release from the case, the plaintiffs announced that he would be testifying at the trial as a fact witness instead. The opinion he drafted for the federal government is still available on the plaintiff's database, although it is unlikely to ever become an exhibit in this trial.

Today was the first of his two-day appearance and the plaintiffs must be very happy with how it went. Not only did he allow some "hot documents" to become evidence, he held the judge rapt attention with his stories of shenanigans in the boardrooms of Philip Morris.

Mr. Farone is famous enough that a few onlookers turned up to watch today's proceedings. They were not disappointed!

Introducing Mr. Farone, PhD.

William Farone is a chemist by training. (He received his PhD and earlier degrees from Clarkson University in nearby Potsdam, New York). Most of the first decade of his professional career was spent providing research support to the soap-giant Unilever in its development of new products.

In the mid 1970s, Mr. Farone was recruited by Philip Morris USA, where he worked for 8 years on projects aimed at developing a less harmful cigarette.

His unhappy departure from the company in 1984 came after a management shake-up that reduced both his career and his research prospects. But through the company he subsequently founded and his continuing research efforts, Mr. Farone remains involved in reducing harmful substances. His CV shows that well past the age that many retire, he continues to file patents and publish his research findings. 

Mr. Farone is the kind of man you would love to have dinner with. He is easy to listen to, with a gentle but colourful voice. He has twinkling eyes and a charming smile, although because the witness faces the judge, only Justice Riordan could see them.

At 73, he is middle aged by the standards of this trial, but his manner of speaking of long-past events makes them sound like current events.

See for yourself! You can also watch Mr. Farone being interviewed for the movie Addiction Incorporated, or read his expert report for the US DOJ case.

The link between Philip Morris USA and Rothmans, Benson and Hedges

Although the tobacco companies involved in this trial are all subsidiaries of multinational operations, they have tried hard to maintain a distinction between activities in Canada and those elsewhere. 

So when Philippe Trudel tried to use Mr. Farone's presence to put documentary records from Philip Morris USA on the trial record, Simon Potter (who represents Rothmans, Benson and Hedges) was quick to argue that these were not relevant to Canada. 

He was not successful. Justice Riordan has progressively opened the door to documents from "foreign" operations, and he was even more definitive today.  "I have ruled on this close to two-dozen times," he said. "What happened in the U.S. is relevant."

Mr. Farone provided clarity on why the work of the large scientific operation at PM-USA (Exhibit 1451) was relevant to an international operation like Canada. He explained that the Tobacco Technology Group (Exhibit 1452), coordinated these efforts and that the cross-appointments of its members with other PM structures helped the flow of information.

"The tobacco technology group was set up to disseminate information to all affiliates of Philip Morris Incorporated to control the dissemination of technology world wide" ... "They were serviced by the research and development that we were doing. It was complicated, but connected through the work arrangements." 

The link between smoking and death

At the time Mr. Farone worked at Philip Morris (1976-1984), the company had made no public acknowledgement of the harms of smoking. But among the scientists "there was no controversy" - they knew that smoking caused cancer and other diseases.

Nonetheless, the company provided guidelines on how to answer questions about smoking, and these continued to deny any health harms from smoking. (Exhibit 1463). These guidelines were inconsistent with what the scientists knew, said Mr. Farone.  "We absolutely knew that there were constituents in cigarette smoke – from literature going back to 1959 – that cause cancer."

Concerns about increasing public knowledge about health consequences of smoking apparently influenced the research grants for outside medical research. Philip Morris wanted to make sure that it did not fund research that "relate human disease to smoking" or advance "new tests for carcinogenicity." (Exhibit 1464) 

Nicotine and addiction

Mr. Farone said also that the scientists in the company accepted that nicotine was addictive or habituating, and that between those two words "there is a distinction without a difference. .... "Most of these people have chemical training – they see addiction within a chemical meaning – the binding of of chemicals to receptors in the brain."

Among the research projects were studies on rats to discover more about the effects of nicotine. One important test result, explained Mr. Farone, was that acetaldehyde "had a synergistic effect of reinforcing the nicotine."  This chemical was toxic when inhaled, even though it was turned into benign vinegar when ingested. Nonetheless "The company became interested that it could be added directly" to cigarettes, or that sugar could be added, as it would form acetaldehyde when burned. (Exhibit 1455, 1457, 1458, 1459)

Rats were not the only subject of nicotine studies at PM-USA. Mr. Farone talked briefly about experiments done on human subjects, and the varying interpretations given to results showing that smokers performed better on tests when they had nicotine in their system. "One of the interpretations was that people performed better when they had nicotine. Another was that when you remove nicotine from a smoker, they cannot perform as well." (Exhibit 1461r).

Litigation chill

As he explained it, 1984 was a year of change for the scientists working for Philip Morris. At the beginning of the year, both the President/CEO and Executive Vice-President were fired. A few months later, in April 1994, the axe came down on scientific research.

Mr. Farone was witness to these events. He had been asked by his direct boss "to attend a meeting in his absence dealing with issues of which research would be acceptable and which not."  The meeting was an historic moment.

"What we learned was that any research involving nicotine and addiction was to be terminated immediately."'  The laboratories were destroyed and "the people that were involved were escorted off the premises." Besides the work on nicotine, "we had to abandon projects that would tend to prove that smoking caused cancer or that it was addictive." (Among the affected scientists was Victor deNoble.)

Mr. Farone said today that the reasons for the sudden change in policy were told to him by the company lawyer, Mr. Fred Newman. "We were told that companies were sued in the previous year. They were going to eliminate any information in case there were further lawsuits." 

(Justice Riordan gave a notable response to Simon Potter's objection to this line of questions. "To be clear," said the judge "This is not privileged. Lawyers don’t dictate what research is to be done and not done.")

This was not the first time that litigation concerns had impacted his work at Philip Morris. He also recounted the cloak-and-dagger approach he encountered when trying to get the results of toxicity tests that were conducted off-shore (by INBIFO in Germany).

 "For legal reasons, they did not want the results transmitted to us," he explained.  I had to ask (colleague) Dr. Osdene. He would obtain the information at his home, on a telex that came to his house. He would communicate the results to me verbally. Then he would destroy the documents from which the information came."

The Cross-Examination

Mr. Trudel put his last question to Mr. Farone around the usual time for the afternoon break, and during the pause observers from the health community gathered in the hallways to make a friendly bet on how long the cross examination would take. It was hard to imagine that Simon Potter could pull any information helpful to the companies from this witness! 

Mr. Farone was brought into the discussion. Turns out there is indeed no teacher like experience.

After testifying in more than 100 tobacco trials, Mr. Farone has seen his fair share of industry lawyers. He predicted that the rest of the afternoon would be eaten up with unimportant questions about how good his employment standards were, how much he had enjoyed his work and other time fillers. "The lawyers will meet this evening to figure out their real questions." 

Mr. Potter proved him right. The last hour of the day was spent going over petty employment issues. As he seemed to have exhausted these questions - his thumb madly scrolling down his ipad -Justice Riordan gave him a break and allowed the court to adjourn 10 minutes early. 

Tomorrow Mr. Farone's testimony is expected to finish by lunchtime. The rest of the day will be spent in reviewing "2870" documents.  

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 17 - Questions, Answers, Pleadings, Decisions

The one-time vice president of marketing for Imperial Tobacco, Anthony Kalhok, was again on the stand when the trial of the Montreal tobacco class actions resumed this Tuesday morning.

In answer to Justice Riordan's jovial "how are you, sir?" as the session began, Mr. Kalhok allowed that he felt "perked up" by a weekend of physical exercise.

It would have taken a stalwart temperament to maintain any feeling of perkiness over the next few hours, as plaintiff lawyer Bruce Johnston took the witness through a series of focused and relentless questions about the marketing strategies of Imperial Tobacco during his tenure there.

Young smokers - a major opportunity group

Of the day's rich testimony, some of the most memorable sections involved the company's approach to young smokers. 

Mr. Johnston pushed Mr. Kalhok to explain the constraints under which his department operated with respect to advertising that reached young people. As happened last week, responses were usually framed around a business analysis.

"You set up a context that is the opposite to the context we worked," Mr. Kalhok explained when asked why they did not market to youth. "We did not consciously not target to people under 18, we consciously targeted at people over 18." Why not target smokers?  Well, "there is only so much you can do in an ad."

Mr. Kalhok passed over several opportunities to reveal any qualms Imperial Tobacco might have had about youth smoking.

Mr. Johnston: Aside from the voluntary code was there anything else that determined the decision or policy of imperial tobacco not to market to starters who were of legal age?

Mr. Kalhok:  No.

Mr. Johnston:  The risks or possible addiction, that was not a factor?

Mr. Kalhok:  No.

The second theme to which Mr. Johnston returned was the role of the marketing department in addressing smokers' concerns about their health and the marketing of some cigarettes are safer.

The witness began to look a little less 'perked up' when Mr. Johnston introduced a 1971 marketing plan that had been authored by Mr. Kalhok (Exhibit 151, not yet available).  Mr. Kalhok was given a moment to read over the anlaysis he had provided some 40 years ago

Young smokers represent the major opportunity group for the cigarette industry, we should therefore determine their attitude to smoking and health and how this might change over time.

Mr. Kalhok looked up from the page to his questioner and ruefully admitted that if the document had been brought out earlier, "you wouldn’t have had to ask me about my personal views."

At this point, discussion returned to the first marketing studies conducted by Imperial Tobacco on teenagers. The Kwechansky "Project 16" was cited in other tobacco trials (including the trial of the federal Tobacco Products Control Act and the U.S. federal RICO suit), but this is the first time that the man who had responsibility for the study had been asked to testify on it.

Mr. Johnston read out extracts from the study, repeatedly asking if these had caused concern for the company. Not once did Mr. Kalhok acknowledge any disquiet.

Mr. Johnston:  "Serious efforts to learn to smoke occur between ages 12 and 13 in most cases.”  Was that new information for ITL at that time?

Mr. Kalhok:  Yes

Mr. Johnson:  Did it cause concern?

Mr. Kalhok:  You have to remember these are the claimed behaviours of the 16 and 17 year olds.  It would not have statistical validity.  We were, um, surprised.

Mr. Johnston:  "Like adult smokers, teenage smokers find it very hard to quit, even if they want to do so of their own accord.”  Did that cause concern?

Mr. Kalhok:  No more than coffee, coke, or whatever else. We admit that once you enjoy smoking you like to continue smoking.

Mr. Johnston:  Was it considered at imperial tobacco at that time, that smokers were able to give imperial tobacco or any manufacture an informed adult consent?

Mr. Kalhok:  I don’t understand the question.

Mr. Johnston: Do you understand the concept of informed consent?

Mr. Kalhok:  Probably not.

Mr. Johnston:  Did that information have an influence in a marketing strategy in the direction of exercising extra caution?

Mr. Kalhok. Not really.  As I said, it was not new information.

Mr. Johnson.  "The young do not temper their actions with worries about future consequences. This is partly because they don't really understand them yet, and because to them the future means next week, next month or at most next year. It does not mean in fifty years, or even in five."  Did this information prompt anyone to prompt how this misapprehension could be corrected?

Mr. Kalhok: If I understood your question correctly, we wouldn't tread into that territory to correct that misapprehension between the timing of the pleasure and the timing of a potential risk. The facts were they were far apart. And they perceived them as far apart. There was nothing to correct.

Maintaining the social acceptability of smoking

Mr. Johnston also revisited the issue of  Imperial Tobacco's marketing strategies to respond to health concerns of smoking.  He again questioned Mr. Kalhok on (Exhibit 116) which minuted an observation in 1976 of the marketing, research and public relations staff of the company:

In our normal marketing activities, we are constantly aware of the smoking and health issue. Some of our campaigns are very effective in reinforcing the smoker's choice. The image campaigns being currently run for duMaurier, Peter Jackson and Player's Filter, help to convey three of the basic reasons for smoking. Those reasons are, respectively, social acceptance, personal independence, and the pleasure of smoking.


He introduced minutes of a similar meeting the year before (Exhibit 153), a policy statement by Canadian tobacco companies on the question of tar and other smoke constituents (Exhibit 154- under reserve, but also available on the Legacy site), a memo noting changes to that agreement (Exhibit 155), and a proposed new agreement (Exhibit 156, 156a) where the Canadian companies agree to not "expand on or exploit" health concerns, to permit each other to use the words tar and nicotine, but not to use any  'scary' words like carbon monoxide or gaseous phase.

Other documents introduced but not  yet available were a marketing plan for a new Player's cigarette (Project Pel, Exhibit 157R), a review of the tobacco industry (Exhibit 159).

By mid afternoon, the plaintiff's wound up their examination of Mr. Kalhok.  They took him to a document on which Mr. Descoteaux had been questioned in the opening days of the trial (Exhibit 11), and asked him to identify his handwritten note to his colleague.  "Much of the satisfaction (of smoking) is the effects of nicotine," he had scrawled across Mr. Descoteaux's suggestion that the company should develop cigarettes that would provide the same satisfaction without "enslaving" consumers.  "Would you pay $12 for a 40 oz  of gin if it didn't contain alcohol?"

Judge Riordan's calls. 

1. Smokers are not also passive smokers

Justice Brian Riordan was called on to make two decisions about evidence.

The first was in reply to an objection by the tobacco companies to a question about the company's views on second hand smoke. "Bringing second hand smoke into the picture would be a fundamental change to the nature of the case" said Imperial's lawyer, Craig Lockwood. Despite Bruce Johnston's protest that smokers are also affected by second hand smoke, and that the industry's approach to the science on second hand smoke was relevant to their denial of other science, Justice Riordan shut down the line of questions. "The issue is not relevant to the  (class action) groups."

2. Non-appearing documents about document destruction.

Earlier in the month a press release regarding document destruction (Exhibit 57) had not been provided to the plaintiffs as part of the established exchange of documents. This had raised questions about the consistency of the defendant's document production with an earlier ruling of Justice Riordan.

After establishing that there were other documents in the same category (related to implementation of the document retention policy), Justice Riordan clarified "if there is ambivalence in my previous judgement that is my fault, but that doesn't change the fact that the information is relevant, and it has to be provided.  And it has to be provided in a timely way with witnesses." He called for documents related to "document destruction between 1985 and 1995 and referred to subsequently."

Ms. Glendinning questioned the time-frame of the document net ("AFTER the lawsuit has commenced!?"), but promised to provide details in the coming days about the number of new documents to be produced.

Justice Riordan also clarified that Imperial Tobacco was to give priority in its internal review of documents to those that are intended to be provided to the plaintiffs in the main action, and that delays in providing documents to the plaintiffs that resulted from assigning personnel to documents in the action-in-warranty (the federal government involvement) were not acceptable.

Back to the croquet court

At the end of the day, discussion was resumed on the industry's request to disqualify three of the federal government's four proposed expert witnesses.  Mr. Regnier, speaking on behalf of the federal government, resumed his submission from the previous day and provided a detailed account of where Dr. Farone's testimony was linked to the action in warranty.

Andre Lespérance presented the views of the plaintiffs, and their agreement with the position of the federal government's counsel that the court was operating with common evidence.  The main action and the action in warranty were woven together, he explained, and the division of the cases in examining or cross examining witnesses would be unworkable.  The expert witnesses were pertinent to both cases, he said, because the cases were "mirrors of one another."

In her reply to the opposition to their motion to dismiss the witnesses, Suzanne Coté replied that she disagreed with the view that the two actions were being tried with common evidence. The fact that the cases were being heard and judged concurrently did not mean that they were working on the basis of a signle proof.

She went further to question the relationship of the federal government to the plaintiff's case. "The federal government could contest the principal demand," she pointed out.  (Was she remembering with nostalgia when the federal government had sided with the tobacco companies in opposing certification of class actions on tobacco in British Columbia and Newfoundland after they had been sersved with third party notices?).

Simon Potter apologized for not having provided the whole story to the court about the eventual agreement reached by the tobacco companies and the federal government to allow Dr. Burns to testify in the Tobacco Products Control Act case, even after Justice Chabot had disqualified him.  He did not back down from other positions taken the day before, and repeated his concerns that the expert witnesses were provided too late in the day to be fair to the defendants.

The last word went to Mr. Jean Leclerc (on behalf of the federal government), who urged the judge to read again the Burns report, and to consider that it could not be severed but should be read as a whole.

Tomorrow morning, Mr. Kalhok returns to face cross examination by his former employer's attorneys, and possibly by lawyers representing the federal government.  In the afternoon, the former president and chairman of Imperial Tobacco, Mr. Jean Louis Mercier, will be called to testify.

Day 16 - Expertise not wanted

See note on accessing documents at the end of this post.

As spectator sports go, trial watching does not have the adrenalin rush of the Stanley Cup playoffs (Go! Senators! Go!), although it often calls to mind other sporting matches.

Today's proceedings seemed to have much in common with that sedate summer sport, croquet.  In croquet the object is to be the first to get your ball through the hoops, but the real fun of the sport is in viciously knocking your opponents' balls out of the croquet court, all the while maintaining the appearance of polite gentility.

The first sitting this week was spent discussing the tobacco companies' request to knock three of the federal  government's balls out of the trial court. The industry wants to throw out the expert testimony offered by epidemiologist David Burns, toxicologist Len Ritter and chemist William Farone.

[Unlike fact witnesses who testify on events to which they have a personal connection, expert witnesses provide opinion evidence on matters which go beyond the expected knowledge of ordinary people (even judges). Their credentials are open to challenge.]

Whack!  Dr. Len Ritter

First to take a swing was Suzanne Coté, who works for Osler, Hoskin Harcourt on behalf of Imperial Tobacco. She took aim at the testimony of  Dr. Len Ritter, a Professor Emeritus at the School of Environmental Sciences at the University of Guelph.

In her usual fast pace, she rattled off the criteria that should be required of expert witnesses to the case: pertinence, usefulness for the judge, qualification of the witness and impartiality. She then took successive knocks at Dr. Ritter's work for meeting none of those criteria.

Dr. Ritter's report on industry's knowledge of and research into the harmful properties of smoke did not reflect expert knowledge, she said, and suggested that these were tasks that the judge could perform himself. Justice Riordan laughed when she asked dramatically "where it would take us" if the role of the judge were  usurped in this way.

She also challenged the impartiality of Dr. Ritter's opinion, saying that the documents he selected reflected only one side of the "controversy" about smoking and did not include science that supported the industry's actions.

Whack!  Dr. David Burns

After the morning break, RBH's lawyer Simon Potter picked up the verbal mallet to hit at the expert wtiness testimony of prominent U.S. epidemiologist, Dr. David Burns. In his flamboyant way (did Simon Potter and Rex Murphy attend the same elocution class?) he decried the presentation of this witness as "burdensome, prejudicial, unfair and late".

Mr. Potter claimed that the expert opinion was not pertinent to the government's defence, but was designed to assist the plaintiff's main case. "The action in warranty says that if there were low tar cigarettes on the market it is because the government wanted them there and pushed to have them there," explained Mr. Potter.

"Dr. Burns wants to argue that the  tobacco companies were aware of smokers' compensation and that they designed their cigarettes to facilitate compensation....This is Dr. Burns not defending the action in warranty, it is piling on to the plaintiffs' case."

Mr. Potter claimed that Dr. Burn's recounting of events in the United States were not relevant to the Canadian experience. He pointed to references in the opinion to the U.S. Master Settlement Agreement. "This is Dr. Burns seeking to bring in an enormous piece of American fact," he said. "It is foreign to the true interests of the Attorney General of Canada.”

Mr. Potter referred to the decision of Quebec Justice Chabot to dismiss Dr. Burns in the trial of the 1988 Tobacco Products Control Act, because "Dr. Burns (was) brought forward not to bring his professional opinion, but .. rather to state the professional opinion arrived at by others and to confirm that they are reliable and credible.” He repeated the view earlier offered by Mme. Coté that this was the job of the judge, not an expert witness.

In short, he said "“this report does precious little good."

Whack!  Dr. William Farone

Simon Potter turned his attention to the testimony of the third government witness, the former Philip Morris International chemist, Dr. William Farone. This time the attack was more personal. 

He denounced Dr. Farone as being a man "on a mission” who claims expertise in areas where he does not have it. He presented Dr. Farone as exaggerating his knowledge and contribution.  "He is only a chemist," he said disparagingly, then backtracking slightly "I don’t mean chemist disparagingly. We need chemists in the world.”

Mr. Potter claimed that Dr. Farone had a desire to 'inflame' tobacco issues, and drew attention to uncomplimentary things that had been said about him in other trials. He suggested he had an axe to grind by telling the court that Dr. Farone was not so much a former employee of Philip Morris, but was someone who had been fired by Philip Morris for insubordination.

This is an expert witness who "wants to lard the file." Mr. Potter concluded that Dr. Farone is someone who offers nothing that had not already been provided to the court by the plaintiff's expert witness, Dr. André Castonguay.

A textbook defence

After lunch the government opened its response to the industry's attacks on their witness by presenting a special counsel to the case, Mr. Donald Béchard, the author of a textbook on the admissibility of evidence, Manuel de l'objection.

Mr. Béchard challenged the suggestion by the companies that no special knowledge was necessary to assess scientific reports by reading one sentence from Mr. Ritter's expert report. He pointed out that an ordinary reader might not be able to come to the same conclusion as an expert with subjects of this nature.

“The PAHs found in cigarette smoke are broken down (metabolized) into a variety of compounds by the action of the enzyme aryl hydrocarbon hydroxylase (AHH).”

He questioned the role of the tobacco companies in challenging how the federal government should conduct the case.  "The tobacco companies are trying to say that now that we have trapped you in this case, we are going to tell you how you must defend yourself."  Besides, he pointed out, the use of common evidence as in this case allows for parties to contribute to a common proof.

Mr. Béchard disagreed with the companies that the American orientation of the testimony was a drawback. "The U.S.  experience IS relevant to Canada," he argued. "The government will demonstrate that what happened in the U.S. also happened in Canada."

Cherry Picking

Mr. Jean Leclerc (Gilbert Simard Tremblay) provided a detailed reply on behalf of the federal government to the arguments against Drs. Ritter and Burns. He suggested that the tobacco companies had cherry picked from the expert reports and that doing so had provided a distorted view of the value of those reports to the court. 

He defended the credibility of Drs. Ritter and Burns, reminding the court that Dr. Ritter had testified in the trial of the 1997 Tobacco Act, and that Justice André Denis had found his testimony useful. He pointed out that the science of toxicology does not rest on what produces the toxins  - cigarettes or pesticides - but on the harms these materials cause.

He countered the suggestion that Mr. Potter had left that Burns had been dismissed from the Tobacco Products Control Act Trial by pointing out that eventually Dr. Burns had testified, and that the assessment of Justice Chabot needed to be situated in its historic context, 23 years ago.

On hearing this factual contradiction to the suggestion that Dr. Burns' had not been allowed to testify in a previous Quebec trial, Justice Riordan looked and sounded displeased.  

If it's good enough for Judge Kessler ...

Maurice Regnier was the last to respond to the objections, and he defended the qualifications of Dr. William Farone. He outlined how Dr. Farone's testimony was directly related to the federal government's defence in the action in warranty, as it provided detail on how companies could control the nicotine levels in cigarettes.

"The industry says it is the government's fault to have worked on a tobacco variety that had higher nicotine." Mr. Regnier explained,  "Our case will be to demonstrate that the tobacco plant that grows has very little to do with the nicotine that is produced by a cigarette later."

"The manipulation is not on the part of government, but on the part of the industry."

Mr. Regnier drew attention to the acceptance by U.S. federal judge, Gladys Kessler, of the testimony of Drs. Burn and Farone.  In her 1700 page ruling in 2006, she said had praised the credentials of Dr. Burns:

Based on his superb academic credentials, his extensive experience working on Surgeon General Reports and NCI monographs, his ongoing clinical research, as well as his demeanor and responsiveness to cross-examination, the Court fully credits his testimony.

Likewise, Judge Kessler had accepted the testimony of Dr. Farone:

Dr. William Farone, who worked at Philip Morris for 18 years and was impressive and credible as both a fact and expert witness.

By the end of the sitting, the arguments for and against these there witnesses had not finished. When tomorrow's session opens tomorrow morning, this issue and the testimony of Mr. Anthony Kalhok, former vice president of marketing for Imperial Tobacco will be resumed.

Like a croquet game, the pace is slow and the social niceties are observed. Unlike a croquet game, it will be some time before we will learn whether the industry was successful in knocking these federal balls off the court.

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.