Day 156: The day before the summer break

The historian David Flaherty made his third appearance at the Montreal tobacco trials today.

His first - over a year ago - had been as a fact witness. This was the first step in the plaintiffs' efforts to put on record the public remains of his quarter-century relationship with Canada's three large tobacco companies. (Mr. Flaherty's September 6, 1988 report on the Four Seasons Project is now Exhibit 1561).

His second appearance last month was in his capacity as expert witness. On behalf of Imperial Tobacco, he presented his voluminous (literally!) report concluding that "Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds."  (Exhibits 20063, 20063.1, 20063.2, 20063.3, 20063.4, 20063.5, 20063.6, 20063.7, 20063.8, 20063.9, 20063.10, 20063.11)

Although his testimony was mostly completed, Mr. Flaherty's third appearance was delayed to wait for Supreme Court to decide whether it would allow an appeal of Justice Riordan's decision to permit the Four Seasons report. When the highest court gave its thumbs down to the requests, Mr. Flaherty was scheduled back in.

Does anyone besides Bruce Johnston smell fish?

Bruce Johnston picked up his cross-examination, and seemed particularly interested in how Mr. Flaherty had prepared for his report over the decades. He focused on the guidance that Mr. Flaherty had received from legal firms in the U.S. and Canada and on the variances between Mr. Flaherty's two reports and between his his testimony and his reports.

Mr. Flaherty steadily defended his work, and especially his independence as a researcher. The fact that his clients had not provided him with internal documents did not mean that "blinders" had been placed on his research, he said. But he implicitly acknowledged that his report was incomplete, and that "a future historian would have a lot more material at his or her disposal" because the trial had made public information that his clients could have provided him with.

Nor did he agree with the suggestion that the "back story" of the industry's role in spreading disinformation about health consequences of smoking should form part of his analysis. In an impatient tone, Mr. Flaherty repeated his answers from last month -- that he had accepted a mandate, that he had negotiated the mandate, that if the list of documents he wanted for his research had been winnowed down, it was a result of his own research decisions.

He did not seem to see any contradiction between these statements and his report that there had been "a lot of give and take with the law firms I was working with."  Maybe it was just give and give. 

Mr. Johnston expressed some frustration that the plaintiffs had been unable to get a complete record of the reliance material used by Mr. Flaherty - i.e. the 11,751 documents collected by Mr. Flaherty and the other historians working on the project.

A final CD had been delivered only this morning, and Mr. Johnston seemed to be trying to find out of there was a significant reason for the delay. During this exchange Mr. Flaherty revealed that there was no index for his collection. It seems incredible to me that several historians working together over decades to compile a resource of primary material would not have needed an index, but there you go.

"A pretty smart fellow" if I say so myself

With Mr. Flaherty's 1988 report (Exhibit 1561) finally on the record, Mr. Johnston was able to ask the historian about some seeming inconsistencies between this early work and his later testimony. Mr. Flaherty had earlier testified that he never read any trial transcripts, yet in the 1988 he makes reference to reading the historical awareness testimony in the landmark Cipollone trial. "I misspoke," David Flaherty said simply today.

Mr. Flaherty sidestepped any implications that the similar wording between the conclusions he reached after 4 months of work and those he reached after 25 years of effort might be because these were foregone conclusions, or influenced by the lawyers he was contracted to.  He spoke instead with pride in his early research skills. I think I was a pretty smart fellow back then, given how little I knew at the time.

Nonetheless, there were differences between the two reports, and Mr. Johnston drew attention to some of those which now favour the tobacco industry position. One of these was the removal of his 1988 finding that warnings about smoking were "counterbalanced by efforts to discount these modern research studies."

Mr. Flaherty today said he had never believed what he wrote. "I should have written 'even though there was an effort to counterbalance'.. .. It has absolutely nothing to do with what I thought at the time."  He repeated his view that any attempts by the companies to diminish concerns about health had been "drowned out" - or were like a drop of water removed from a swimming pool.

Mr. Johnston asked him about material that had been omitted from his report -- like the secret industry science that had been made public in the book The Cigarette Papers. In the forward to that book, a former U.S. Surgeon General had lamented that a "wealth of .. important information the tobacco industry possessed" about the harms of smoking was withheld, and said this information, had it been known, would have saved lives.

Again, Mr. Flaherty seemed more intent on defending his scholarship than on elaborating his view of history. If he had thought it was relevant, "I would have put it in there" he said with a huffy tone.

True Magazine - inconsequential in Quebec

True Magazine - Exhibit 1237.

Robert Proctor called it one of the
most important denialist papers.
David Flaherty didn't think
it merited a mention

Mr. Flaherty's preoccupation with his scholarship was also echoed in his responses to Bruce Johnston's questions about the industry arranging for pro-smoking articles to appear in the once-popular mens' magazine, True.

Although Mr. Johnston was referring to an article from the 1960s (Exhibit 1237), Mr. Flaherty at first thought the article dated from the 1950s.

Low and behold there were twp such articles - one in the 50s and one in the 60s. Seeing reference to the 1950s article that was similarly industry-friendly, Mr. Flaherty seemed more relieved at not being caught out on a wrong date than at addressing the meat of the question -- whether such publications had an effect.

When pushed for a reason for removing reference to the article in his second report, Mr. Flaherty said it was his "personal experience and judgement" that led him to exclude these reports from his final report. Learning that it was a phoney article was not the reason this tawdry episode had been removed from his report.

"Clearly I didn’t think it rose to the level where it contributed to awareness of smoking and health in Quebec in 1968." ... "If you compare it with an article in Sélection or Readers Digest, it is inconsequential."

The re--examination

To date the only apparent role for Mr. Neil Paris on the vast Imperial Tobacco legal team has been to work with Mr. Flaherty, and it was his job today to reply to follow up on Mr. Johnston's questions. He took only a few minutes to do so.

He asked Mr. Flaherty to confirm that the individual papers, like the article in True Magazine, would not have changed his conclusions. But what about one hundred such articles?

"A hundred articles by the Surgeon General, yes," said Mr. Flaherty. "But a hundred articles by an author in a mens' magazine didn’t cut the mustard."

Mr. Paris tactfully asked his witness to confirm that their mutual client was not credible. Did you take into account the credibility of the Surgeon General? Absolutely.

The columnists? Yes.

The credibility of the tobacco industry? Yes.

It's fair to say that credibility assessments were built into your conclusion? Yes.

A logical conclusion

Exhibit 1546

Mr. Paris' last question to the witness was aimed at bolstering the honour of the many American historians who have worked with the tobacco industry. (The involvement of Canadian historians in support of the tobacco industry in this trial has recently drawn fire within the Canadian historical community).

He showed the witness the list of historians that from the critical review by (Exhibit 1546) that Mr. Johnston had profiled.

"Can you think of anything these historians would have to gain by compromising their standards?" Mr. Flaherty could not, and spoke highly of some historians on the list.

If not because historians working for the tobacco industry were overly coached by lawyers, then what other reason might there be "why a group of eminent historians might arrive at similar conclusions."

"It make sense to me that if you were looking at the same question with a similar set of news paper sources you might come to a similar set of conclusions," said Mr. Flaherty.

With that, he was thanked for his time, and invited to step down from the witness stand.

The road ahead --

In the afternoon, the discussion returned to unresolved issues on how the trial would proceed.

The exclusion of immigrant smokers

Justice Riordan had asked the plaintiffs to adjust their definition of the class of addicted smokers to disqualify all those who, because they were not living in Canada at the time, had started smoking cigarettes made by tobacco companies who are not involved in this trial. This followed concerns expressed by Simon Potter, who represents Philip Morris International/Rothmans Benson and Hedges.

Such an adjustment is in the companies' interests, as it would reduce the number of Quebecers included in the suit and, presumably, reduce any potential liability they might face. And yet -- to a tee - they all protested against Statistic Canada migration data being on the trial record after the plaintiff's proof had closed.

Justice Riordan was not sympathetic to their objections.

"I have the right to impose unilaterally certain restrictions on groups," he reminded them. He said that the "door was open about what evidence would establish" the changes. So far the companies have not provided a substantive response to the recalculation.

New expert reports

Earlier this year, Justice Riordan had authorized two additional expert witnesses on warnings. These reports will be filed before the end of next week.

He had also authorized Imperial Tobacco to conduct its own consumer survey, and had given the same deadline. Today, Deborah Glendinning said this deadline would not be respected, but that they still intended to produce such a report.

The reason for the delay, apparently, lay with Justice Riordan. "The judgments on our pre-defense motions have caused us some concern with exactly where we are on causation. Your reference to invoking presumption and other evidence that is unspecified is causing us to rethink how we formulate this evidence."

Imperial Tobacco will be asking for an extension, she said "not until we see what the class definitions will look like."   

Protecting class members from certain demands

Justice Riordan has previously ruled that the tobacco companies may not demand to see the medical records of the class members. Knowing that the companies will appeal his decisions on future such requests, he asked them to put a system in place so that these appeals were exhausted without delaying the trial.

Today there appeared to be agreement to do this through a test-case. A subpoena for records will be issued this summer, will be challenged by the plaintiffs, and will be debated in late August. Presumably Justice Riordan's ruling on these issues will wind their way through the upper courts over the winter.

Simon Potter, the witness

Mr. Potter was notably absent from the court today, as he routinely is when the issue of his testifying at this trial is discussed. (It was because his name again appeared on Imperial Tobacco's witness list that his testimony was bound to come up this afternoon.)

Justice Riordan said -- again -- that he does not want Mr. Potter to testify. He also signaled that he might not permit it to happen. "Calling an attorney is very exceptional. If there is any other way of getting the evidence in then I am going to require that you favour it."

The Schedule

On May 15, the tobacco companies were told to come back with a schedule that took up 175 days, and not the much longer trial they were seeking. (Imperial Tobacco wants leave to appeal this ruling, and the Court of Appeal will hear their request in mid September).

The revised schedule they circulated earlier this week did indeed come in within the imposed limit of trial days --- if only because they dropped from their estimate any provision for cross-examination and did not disclose how long they would need for class members. (The sequence of witnesses with the time the companies will require is shown below). 

Nonetheless, Justice Riordan did not look concerned. 

He began by complimenting the companies for being efficient with their witnesses to date. (I think he was looking at Suzanne "Speedy Gonzales" Côté as he said this). Their proof had been well organized, he said, and he was pleased with the way the exhibits had been prepared to allow for rapid processing. "I am comforted by this and it will influence my approach."

He repeated his preference for the companies to look for "admissions" as a way to reduce the time required for testimony. He warned that he would not accept empty days, and that the companies must avoid having holes in the calendar.

Deborah Glendinning said that their planning had been hampered by the unwillingness of many government witnesses to speak with them. Justice Riordan offered his help, and wondered whether the federal lawyers should be brought in to help in processing affadavits and coordinating with witnesses. 

The summer break

Justice Riordan, before thanking the stenographer and clerk for their work over the year, emphasized his concern about the length of the trial. "I realize it’s a great pleasure to come to Montreal and come to the 17th floor," he said - but "let's get this thing over." 

With that, the court rose for the summer. The next sitting day is August 19, 2013. Nova Scotia historian, Robert J. Perrins, will testify. 

----------------------------------------------------

Future tobacco industry witnesses 

Scientific Knowledge / Government Policy

Dr. Robert J. Perrins  (Expert witness) - 3 days

Imperial Tobacco Witnesses

Andrew Porter (Research) 3 days

Graham Read (Research) 3 days

Gaetan Duplessis (Research, Relationship with Agriculture Canada) 2 days

Michael Dixon (Expert witness, compesnation)  3 days

Andrew Chan (Marketing) 2 days

Jean-Louis Mercier 1.5 days

Anthony Kalhok (Marketing) 1.5 days

Ed Ricard  (Marketing) 2 days

Anne Boswall (Marketing) 1 day

Benjamin Kemball 2 days

Lyndon Barnes (Document Retention)   1 day

Simon Potter (Document Retention) 1 day

Rothmans, Benson & Hedges witnesses

Steve Chapman (product development) 2 days

Gary Black (Product development) 1 day

John Barnett (Corporate policies) 1 day

Other marketing 1 day

Other Executive 1 day

JTI-Macdonald witnesses

 

Peter Hoult   3 days

Ray Howie (Product design) 2 days

Robin Robb (Marketing) 2 days

Richard Marcotulio (Corporate and Smoking and Health) 2 days

Jeff Gentry (Product development) 2 days

Lance Newman (Marketing) 1 day

Guy-Paul Massicotte (CTMC, ICOSI; Corporate reorganization) 1 day

Mary Trudelle (Marketing  and public affairs) 1 day

Ian Walker (Youth Target Study)  ½ day

Michael Sauro (Compensation) ½ day

Health Canada witnesses

J.C. Robinson  1 day

W.H. Cherry ½ day

Monique Begin  2 days

A.J. (Bert) Liston 2-3 d ays

Perrin Beatty ½ day

Murray Kaiserman 2 days

William S. Rickert 1 day

Possible Health Canada witnesses

DM Bruce Rawson  1-2 days

John A. Bachynsky  1 day

J.L. Fry 1 day

David Kirkwood 1 day

Maureen Law  1 day

Benoit Bouchard  ½ day

David Crombie  ½ day

Neil Collishaw 1 day

Others to be determined

Agriculture Canada

C. Frank Marks  2 days

P. Wade Johnson  2 days

R.S. Pandeya 2 days

J.M. Brandle 1 day

Brian Zilkey 2 days

Dr. Yvan Martel 1 day

Others to be determined

ITL Leaf

Graeme Boswall 1 day

Howard Goode 1 day

Ron Bandur 1 day

Expert Witnesses

James Heckman (Advertising, statistics, lack of impact on class members( 2 days

Richard Semenik (Marketing) 2 days

David Soberman (Marketing) 2 days

Alexander Goumeniouk (Addiction) 1 day

Kieron O'Connor (Addiction) 2 days

Dominique Bourget (Addiction) 2 days

John Davies (Addiction) 2 days

Laurentius Marais (Epidemiology, Statistics and causation) 3 days

Bertram Price (Epidemiology) 2 days

Kenneth Mundt (Epidemiology) 2 days

Sanford Barsky  (Disease, individual assessment) 1 day

Dale Rice (Disease, individual assessment) 1 day

Two  warnings Experts - 4 days

Possible Consumer Survey Expert - 2 days

Day 147. History will be kind to them, for they intend to write it

This morning, when the retired history professor, David Flaherty, resumed his presentation to the court where the Montreal tobacco trials are being heard, there was very little remaining in his expert report to be discussed.

His clients' lawyer, Neil Paris, lead him through the last whistle-stop in his 5-decade review of the history of tobacco and health in Quebec as told through newspaper and magazine reports. The period discussed today was the 5 years leading up to the launch of the two class actions, in 1998.

There were lots of Big Events during this period, and Mr. Flaherty briefly touched on them all: the narrowly split decision of the Supreme Court of Canada to strike down the Tobacco Products Control Act, the development of its replacement legislation and the public debates over whether Formula 1 and other sponsored events should continue, the emergence of new tobacco control organizations in Quebec and the enactment of Quebec's own tobacco law.

His review ended in 1998. After slightly more than two days' testimony, Imperial Tobacco's lawyer and expert witness had arrived at the end of their road. Mr. Paris invited his witness to "sum up" and the conclusion of his report (para 173 of Exhibit 20063) was read into the record.

"The evidence is incontrovertible that the overwhelming message communicated to the Quebec population was that smoking caused lung cancer, as well as a multitude of additional adverse health consequences."

Before releasing his witness to the plaintiffs' team for cross-examination, Mr. Paris turned to the issue that had hung over the report since the appearance of the plaintiff's rebuttal witness last December -- the stinging criticism of Mr. Flaherty's methods by Stanford history professor, Robert Proctor. (Exhibit 1238)

Mr. Paris asked whether Mr. Flaherty had read the rebuttal report, and invited the witness to contrast his own research approach with that of Mr. Proctor.  At this point that the tone of Mr. Flaherty's remarks shifted and the affable history guide gave way to thin-skinned academic.

"Simply put, it is my judgement as a professional historian that in the report he wrote and in the book The Golden Holocaust he is writing what a British reviewer called advocacy history...

I am disappointed, to say the least, that he seemed to pay no attention to the work that I did but had the temerity to dismiss it as a largely clerical exercise. ... I am surprised he found his way to Canada, he knows so little about [it]. 

"He has an idée fixe on the American industry which he has transported onto the Canadian industry."  .. There is no evidence he actual read [my evidence] because he never quotes it. I say again that this is not how professional historians work."

The cross-examination

In the large legal teams that are on both sides of these lawsuits, there are certain lawyers who are selected for the most adversarial cross-examinations. For the plaintiff's side today, this was Bruce Johnston.

The transcripts capture the words (way better than I was able to do this week, with a soft-spoken, fast-talking witness and an uncooperative sound system), but they do not record the body language, tone of voice, facial gestures and other means by which lawyers can increase the impact and intimidation of their questions. (I think the black robes add considerably to the intimidation factor!).

Although they share some of the same tactics (beginning by pointing out small errors - even inconsequential ones - seems to be a favoured way to try to tip a researcher's equilibrium) each of the lawyers has their own style. Bruce Johnston today chose to put a few central questions to Mr. Flaherty and to squeeze down on them, vice-like, to force out answers. He kept hammering at the key points until they were firmly nailed in.

This week, Mr. Flaherty presented himself as not just a bona fide professional historian, but also a good one.  Although much of his work is in non-academic fields, he clearly remains proud of his academic accomplishments and was defensive of suggestions that he had made research errors.

Mr. Johnston focused his questions on the fault line between Mr. Flaherty's pride as a professional historian and his contractual role as a consultant. Not good enough to measure this expert report against the mandate provided by the tobacco companies - it should be tested against the standards of good historical research.

As a good historian, why had he measured what people had been told, but failed to explore what they believed? Why had he ignored so much primary source material? Failed to build on the work of other historians in the field?

And why had he allowed the tobacco companies to shape his research over two decades and turn him into a cookie-cutter industry witness?

Historical Standards

During his cross-examination of Robert Proctor, JTI-Macdonald counsel Doug Mitchell had shown the the "Statement of Standards" of American Historical Association (Exhibit 40024) to try to illustrate what he saw as a gap between Mr. Proctor's research approach and the norms of historical practice.

Mr. Flaherty seemed unaware of this previous exchange, and the poetry of Mr. Johnston using it in his own examination of a defence witness was lost on him.

Surprisingly, perhaps, he was completely unfamiliar with the document itself or any of its earlier versions. Perhaps conduct codes are not as common for historians as they are for other professions.

He bristled sarcastically when asked to agree with some of the passages. "I'm enjoying this lesson in integrity and ethics! It should happen to every elderly historian."

These principles -- the standards of what constitutes good  history -- were the foundation for most of the Mr. Johnston's questions over the day. Highlighted was the assertion that historical interpretation should evolve in response to the growth of secondary literature that "places those documents in a larger context." 

Primary sources ignored

Mr. Flaherty opened himself up to focused questions on the primary sources he ignored (his report only looked at the publication record) when he spoke of a "fascination" with former Imperial Tobacco president, Paul Paré. "I wanted to be able to report on how his views on smoking and health evolved over time."

If that is so, then why did he not look into memos, letters and other primary sources to "understand him better." The witness stressed that as a consultant he did not go beyond his mandate given to him in litigation, and rattled off a number of legal files he had been involved in where he had also kept to the narrow scope of his contract.*

It was not even that he would have had to ask Imperial Tobacco for records on the object of his fascination, as there are hundreds available on the Legacy site. But although he was aware of the Legacy site and had used it, he had not looked for any internal industry documents. "I primarily used Legacy to read the work of Robert Proctor."

Also conspicuous in its absence from his report was any reference to tobacco advertising. (It was, he reported, included in his late 1980s original research plan, but after discussion with his clients it had been dropped).

He said today that "the probative effect of the information" added nothing. Even quantifying the number of that people saw the health warnings in ads was not relevant, he said, as it only contributes to knowledge in a "in a repetitive way." 

As with the Legacy documents, he would not have had to go far out of his way to put his hands on advertisements. Many had been collected by the students who "spun" the microfilmed records and produced the photocopies that were sent to Mr. Flaherty. But when he reviewed these documents, Mr. Flaherty "got rid of them" as he wanted to get "to the meat and potatoes."

It was not, he agreed, that he thought advertising was not relevant. In fact he gave a shout out to the plaintiff's marketing expert, Richard Pollay, whose understanding would "be much more informed, must more learned, because he's a specialist in history of advertising."  

Secondary sources 

Perhaps because Mr. Flaherty was so strong in his views against Robert Proctor, that Mr. Johnston focused instead on the work of three other American historians who had studied the tobacco industry.

Their publications were among the material that Mr. Flaherty said he collected and that "as a good historian" he read. He said he received help from another historian in keeping track of new publications in tobacco issues and had collected"hundreds of articles" and books on smoking and health and.  "I have read a lot." 

He singled out Richard Kluger (who wrote Ashes to Ashes) for praise. "He is an example of a remarkable journalist, a non-professional historian who writes terrific work. He's really on top of the primary materials and I respect his judgement."

Mr. Johnston showed him Richard Kluger's conclusion that the industry used its power and money to generate a scientific controversy.  Mr. Flaherty did not contest his conclusion with regards to the U.S. industry, but felt it did not apply to the Canadian companies, which, he said, took more "supportable positions." 

For many minutes, he was pressed by Bruce Johnston to produce an example of a more "supportable position." Mr. Flaherty offered a range of replies, some of which were strikingly odd. He likened the situation to the Catholic church, which has views "that we all know are a bit odd" but nonetheless "stick to their guns." I could not see how his tobacco examples -- like a report on Rothmans' president saying that most smokers do not get lung cancer - helped his point.

Another historian respected by Mr. Flaherty is Harvard professor, Alan Brandt, who wrote "The Cigarette Century" and who testified in the DOJ/RICO case. Mr. Johnston drew attention to Mr. Brandt's similar conclusion that tobacco companies sustained an artificial scientific controversy, and that they did so in order to keep people smoking.

Why was this idea not reflected in Mr. Flaherty's research - not even as a hypothesis? After all, much of what Canadians were told about tobacco came from the American companies and their trade associations, according to Mr. Flaherty's report.

It wasn't relevant, Mr. Flaherty suggested. Canadian readers would have distinguished between American and Canadian spokespeople when they were reading these news stories.

It was the third historian introduced during the day that caused Mr. Flaherty the most discomfort.

A parade of near identical defence historians.

Towards the end of the afternoon, Mr. Johnston asked Mr. Flaherty about an analysis prepared by American historian Louis Kyriakoudes (Exhibit 1546) of the historians who had testified on behalf of tobacco companies in the United States.

Mr. Flaherty had read the paper, and was clearly not comfortable with its conclusions. He spoke scornfully about the author -- "This author is casting aspersions on a lot of talented people with much more important reputations in American history than Louis Kyriakoudes who teaches at the Department of History at the University of Southern Mississippi." (His tone emphasized that there was something highly undesirable about the University of Southern Mississippi).

Nonetheless, this paper was the basis for a prolonged exchange between Mr. Johnston and Mr. Flaherty. When the witness resisted providing clear answers, Mr. Johnston brought in additional texts to push home some points.

By the end of the discussion, Mr. Johnston had established that Mr. Flaherty's testimony was a close fit with the pattern of U.S. industry witnesses.

* Received assistance and support by the Special Trial Issues Committee /Allen Purvis and Jan Johnson. Check
* Recruited without prior expertise in the history of science or medicine. Check.
* Testified using a definition of common knowledge as something that is cumulative over time. Check. 
* Used an idiosyncratic definition of common knowledge, not one supported by literature. Check.
* Excluded industry documents that are available on line (i.e. Legacy). Check.
* Used surveys like the Gallup Poll, but avoid industry survey research. Check.
* Used primary material provided to them by the industry. Check.
* Focused in their testimony on news coverage between 1950 and 1964. Check 
* Described events during this period as "deluge" of information. Check.
* Minimized industry's role in fueling the controversy. Check.
* Claimed the industry's voice was weak and inconsequential. Check.

By the end, even the witness acknowledged the obvious.

Mr. Flaherty. There's a lot of coincidences here, aren't there?
Mr. Johnston. There are, yes
Mr. Flaherty. Yes.
Mr. Johnston. I would say.
Mr. Flaherty. Mine are totally accidental, may I say.
Mr. Johnston. Okay.

With that, the day's questions were over.

Mr. Flaherty's return will not be scheduled until after the Supreme Court has decided whether or not to hear an appeal related to a ruling of Justice Riordan that these early reports are not subject to privilege.

Next week, Raymond Duch will be the third industry witness to testify about public knowledge.

*(His revelation that he "regularly get[s]s mandates from Health Canada" might cause the government some embarrassment, given that they have a treaty obligation to avoid such conflicts of interest).

Day 146. A tale of two crises

A funny thing happened mid-morning during the second day of testimony by Imperial Tobacco's expert witness on "awareness" of the risks of smoking. A natural public health parable unfolded after the huissier (bailiff) approached the bench and whispered a message to the judge.

As Justice Riordan conveyed to the room that the water in the court water was not fit to drink, the huissier worked his way around the lawyers, removing from each desk the pitcher of water that is set there each morning.

In a room filled to with blackberries, ipads and computers, it didn't take long for everyone to be aware that the water was potentially unsafe, and for a common knowledge of the city-wide boil advisory to be established.

The courtroom
drinking fountain
lies covered
until water safety
can be assured.

Yet this did not prevent further action on the part of those who supplied the water or who had responsibility for the well-being of those inside the justice building.

To the contrary - soon there were signs on every water outlet in the building, and the drinking fountains were blocked by plastic covers. (What's more, no one was saying the risks were not proven, the controls were excessive, or the warnings took up too much space!...)

It was a modern John Snow moment. The pump handle was disabled without anyone actually getting ill.

While this public health response was unfolding, David Flaherty, professor emeritus of history and former Privacy Commissioner of British Columbia, continued his year-by-year review of the history of tobacco and health in Quebec since 1950.

By comparison, his telling was a story of non-response.

It took half an hour for the water-warnings to be erected. But it took more than a day and a half in Mr. Flaherty's chronology to get from the early 1950s "cancer by the carton" health scares to the 1971 agreement of the companies to print warnings on the packages. The day was almost over before Mr. Flaherty told the court about the development of Canada's first regulated health warnings, imposed at the end of the 1980s.

The scenic route

"Don't give me a roadmap - drive me!" Justice Riordan said yesterday to Neil Paris before this fresh face on Imperial Tobacco's large legal team began his extended dialogue with the historian.

With Mr. Paris at the wheel, the ride was smooth and steady, if somewhat slow. His extended itinerary passed by more than one hundred news reports, each of which was displayed on the overhead screens.

Dr. Flaherty's steady narration illustrated each stop on the way. And if all the road-stops began to look the same, and all the stories began to sound he same - well, that is the nature of packaged tours. As if to keep his passengers interested, Mr. Flaherty's comments often ranged beyond the facts in his report and revealed his own memories and perceptions of events.

His readable report (Exhibit 20063) is the guide for this historical road trip. Today we passed through the half decades 1965-1969 (20063.5), 1970-1974 (20063.6), 1975-1979 (20063.7), 1980-1984 (20063.8), 1985-1989 (20063.9); and 1990-1994 (20063.10).

The passengers on this occasion were every bit as well behaved as the tour leaders. The plaintiffs sat essentially silent, but for the scratching of their pens as they took occasional notes. There were no pit stops for objections! Justice Riordan was the only one who asked 'are we nearly there yet' - and he kept these inquiries or any suggestions to a minimum. Although he followed closely, he asked few questions and seemed to take few notes.

All in all it was an undramatic day on the road. It was, however, a long one. The effort was greatest on the witness, who commented mid day that it was like "giving three graduate lectures in a row." 

Hugging the middle of the road

Outside of the industry, I would think there are few Canadian scholars who have worked on tobacco issues as long as David Flaherty (his efforts date from 1988). But then again, maybe there are others like him, who have kept their work invisible from the public for decades, and who have not made themselves known in the multi-disciplinary academic networks of tobacco researchers.

For that reason, if no other, it was interesting to note how this researcher filtered the information he received, and how his understanding of developments in Canada compare with the views of other researchers who have worked in the same field over the same period of time.

As he spoke to the judge, the witness seemed to try to steer a middle road between the views of the companies for whom he has worked for two decades and what one might almost call common knowledge of the harmful behaviour of those companies over history, including the period of his contracts.

He spoke respectfully of many of the pioneers of tobacco control - like Dr. Norman Delarue, Barry Mather, Rachel Bureau, Marcel Boulanger. In positive terms, he described Gar Mahood and David Sweanor of the Non-Smokers Rights Association as activists in the style of the civil rights movements. He presented the adoption of tobacco control regulations as "progress."

He expressed no views against the measures eventually adopted by government. To the contrary, he derided the way airplanes were once divided down the aisle into smoking and non-smoking areas. He did not seem proud as a British Columbian that his province is the only one to allow cigarettes to be sold in pharmacies. He said that as "as president of an opera, I am glad we are not faced with that temptation [to accept tobacco industry sponsorship] in 2013" .

Colour commentary

Mr. Flaherty's oral testimony contained many personal insights that were not shared in his written report.

He identified the rise of smoking among women (which occurred during the period of increased awareness of health effects) as a matter of concern because "women should be smarter than males and should not be taking up the habit, or that women are better than men."

He noted that "feminist magazines like MS magazine were not paying attention to smoking issues," but did not refer to the long-established link between the presence of health stories in women's magazines with the volume of advertising placed in them.

He repeated his perception that governments and opinion leaders were concerned that reduction in smoking would cause difficulties to government budgets. "I cannot underestimate too much the amount the industry paid in taxes to pay for the total health establishment ...we are talking about significant money! Ministers of Finance were quite sensitive to the potential loss of income if people stopped smoking."

He perceived that "anti-smokers" were indeed against smokers. "The anti smoking activists, professional and otherwise, had decided that the only thing to do was to denormalize smoking by stigmatizing smokers and that became their goal."

He noted that in France lung cancer rates were lower than in Canada, but said it was "because they do not smoke the same kind of tobacco." (If this is common knowledge, it is not shared by those who have found the black tobacco formerly used in French cigarettes to be MORE dangerous, or who have concluded that the 20 year delay in high levels of tobacco use in  France compared with countries like Britain resulted in a time-lag in cancer rates.)

Mr. Flaherty suggested that he accepts that human frailties (not a term he used) may play a role in smoking. Yesterday, he attributed  the "gap between knowledge and belief" as a reason that "We all know you shouldn't talk in your cell phone while you're driving your car; some people do it." Today he explained that "people who engage in risky behaviour often look for a rationale for their behaviour."

Still in the news means it is still a problem.

Although his report is aimed at addressing the point in time when the health risks and addictiveness of smoking were common knowledge, in his presentation of events after the 1970s, Mr. Flaherty spoke more today of the social concern that this knowledge did not resolve the tobacco problem. He described a "great sense of frustration that somehow a solution had to be found to the smoking problem." 

It was the failure to resolve the problem, he said, that led to smoking getting so much media play. "From my point of view how could they give even more news coverage ... the fact that they do indicates how important the issue it is." 

A useful contribution

Close to the end of the day, looking nowhere near as tired as he would have been entitled to after more than six hours' concentrated effort, Mr. Flaherty revealed a researcher's pride in his 20-year effort. "I am pleased that this is going to be in the public record .... [I think it is] a useful contribution." 

Tomorrow, Mr. Flaherty's testimony will continue, including the cross-examination by the plaintiffs' counsel.

Day 145: Four Seasons later, David Flaherty returns

Fifty-three weeks -- a full four seasons -- have elapsed between historian David H. Flaherty's first appearance as a witness in the Montreal tobacco trials and his second appearance today as an expert witness for Imperial Tobacco Canada Ltd.

The long gestation of an expert report 

Some might think that a year is a long time to wait for a court appearance, but for Mr. Flaherty this is but a fraction of the 26 years that have passed since he began to prepare to testify in tobacco lawsuits.

It was his Western University school mate and RJR-Macdonald lawyer, Earl Cherniak, who recruited this University of Western Ontario history professor as far back as 1987.

"It took some winnowing down," Mr. Flaherty said today, "but gradually I learned that the three law-firms wanted to learn what Canadians had been told over time."  

For 20 of the next 26 years, Mr. Flaherty continued to be engaged in the research about "awareness" of tobacco's harms. (He downed tools between 1993 and 1999 when he held the position of Information and Privacy Commissioner of British Columbia).

He never once published his research findings outside of his reports to the tobacco companies.  He explained today that this was because "I knew that eventually I would get to be an expert witness." 

The Four Seasons Project

Although this trial has learned of the companies' early efforts to prepare against liability litigation (Exhibit 40),  one of the key documents -- an early report from Mr. Flaherty to the "Four Seasons Project" - has yet to become an exhibit.

It was in connection with this report that on Day 29 of the trial, Mr. Flaherty was asked to testify so that his report could be put on the trial record. Well, it turned out to be a little more complicated for that. First the plaintiffs had to overcome the companies' objections that the report was covered by various forms of legal privilege - a barrier overcome fairly quickly.

Two days later, Justice Riordan dismissed the objections of the companies, poetically comparing their concerns to the "falsely pious modesty" of Molière's hypocritical impostor, Tartuffe. He said it would be "absurd, and tend to make a mockery of the process" if he were not allowed to read the document "while everyone else in the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries," as a result of it being legally available on the Legacy web-site.

The second hurdle took a little longer. It took until last December before Quebec's Court of Appeal dismissed the companies' appeal of Justice Riordan's decision to dismiss the objections.

The third and final hurdle is yet to come. The companies have asked the Supreme Court of Canada for leave to appeal. At some point soon, a decision will be made to let the Appeal Court ruling stand or to allow a Supreme Court hearing on the issue. (You can follow developments here)

One hundred and four seasons later

Compared with his 1988 draft, the report prepared by Mr. Flaherty for this trial (Exhibit 20063) is an enormously expanded research effort which is tailored to the geography (Quebec) and time period (1950 to 1998) relevant to these class actions. From the original 45 pages, it has has ballooned into a 900 page effort which includes 10 appendices of summary text. It is based on a review of over 11,000 news reports.

The appendices include helpful timelines of key events, and summaries of news reports or other public material which are grouped by source.

Exhibit 20063.2 Part 2 Quebec Opinion 1950-54;
Exhibit 20063.3 Part 3 Quebec Opinion 1955-59;
Exhibit 20063.4 Part 4 Quebec Opinion 1960-64;
Exhibit 20063.5 Part 5 Quebec Opinion 1965-69;
Exhibit 20063.6 Part 6 Quebec Opinion 1970-74;
Exhibit 20063.7 Part 7 Quebec Opinion 1975-79;
Exhibit 20063.8 Part 8 Quebec Opinion 1980-84;
Exhibit 20063.9 Part 9 Quebec Opinion 1985-89;
Exhibit 2003.10 Part 10 Quebec Opinion 1990-94;
Exhibit 20063.11 Part 11 Quebec Opinion 1995-98

Same substance as last week ....

Mr. Flaherty's report is, like that of Mr. Lacoursière last week, essentially a a summary of news reports over almost five decades.

Some of his conclusions are also almost identical to those of last week's witness. By the late 1950s, he writes, "[I]t was almost impossible for an adult in Quebec, Francophone or Anglophone, Roman Catholic or Protestant or Jewish, urban or rural, not to be aware of the issues surrounding the health risks of smoking." And by the end of the 60s, "a resident of Quebec would have to have been living in isolation not to be aware that smoking cigarettes was a serious health risk."

But Mr. Flaherty goes one step further, finding that Canadians were likely to be the most informed of any in much of the western world. "In my view, Canadians, including Quebecers, were the most warned people in the English-speaking and French-speaking worlds. Canada's unique makeup meant that health warnings and related information came from British, American, French, and Canadian sources."

Like Mr. Lacoursière, Mr. Flaherty included the public statements of the industry and others who objected to conclusions that smoking caused disease. These two expert historians also made the same decision to cite advertisements for stop-smoking medications as support for the idea that smoking was known to be addictive or habit forming.

Mr. Flaherty, too, decided to exclude most tobacco advertising from his review. Although it was in his initial proposal, he said it "was something debated back and forth with the lawyer clients."  He suggested that Canadian ads were less relevant than their U.S. counterparts.  "In Canada what I found was relatively boring advertising with the name of the product, the name of the company, a pretty picture of some sort."

... but very different style

Although the scope, structure and conclusions of Mr. Flaherty's report seem very much an English version of Mr. Lacoursière's, the differences between their courtroom appearances are vast.

ITL's latest
courtroom addition,
 Neil Paris

Some of the differences is apparent in the lawyers asking the questions. There was (another!) new face on the Osler/Imperial Tobacco bench this morning, Mr. Neil Paris.

Mr. Paris' steady flow of straight-up questions was matched by Mr. Flaherty's steady and straight-up answers.  Unlike the situation last week, the two men looked comfortable with each other and with the material they were discussing.

The reports of Mr. Flaherty and Mr. Lacoursière go beyond mere team-work. They drew on the efforts of historians like Professor José Igartua, who had once occupied the office next to him at the University of Western Ontario and who remains his friend. In addition to the graduate students hired by Mr. Igartua, there was Mr. Flaherty's own graduate student from long ago, John Swainger. (He now teaches at the University of Northern British Columbia.

In addition to the reports "spun" from microfiche and collected by this team, many of the clippings came from Imperial Tobacco's files and those of the CTMC.

Despite the work being spread to so many people over so many years, Mr. Flaherty exhibited his own command of the material in the report.

By the end of the day, it felt like 18 years had passed

It would appear that Mr. Flaherty will be asked to comment on all - or nearly all - of the 200 news reports which were selected as "highlights" from the material which formed the basis of his report. This is a slow process that verged at times today on the tedious.

With scarcely an interruption from the plaintiffs or a question from the judge - and no indication that they would pick up on cues to speed things up a little bit - the lawyer and witness began at the 1950 beginning and methodically worked down the list.

Although this was not a lively presentation and went over material that is by now well known, there was some information that was new to the trial, and some interesting perspectives put on record.

Mr. Flaherty spoke, for instance, of the political mindsets of some of the major figures, like Alton Ochsner (highly conservative) and Richard Doll ("at least a socialist"). he said that until the 1960s, many of those who raised the subject of tobacco's health effects were relegated to the fringe. "Most physician member of the establishment were smokers. They were reluctant to accept these theories that smoking caused lung cancer."

His presentation relied heavily on the Readers' Digest and its Quebec equivalent, Sélection as well as the brief news reports in Time Magazine's medicine column.

He showed the French version of the famous "cancer by the carton" story of 1952, as well as a series of reports by Lois Mattox Miller and James Monahan. He stressed that the large circulation of this magazine in that era, its inexpensive reprints, its editorial position against tobacco and its wide availability in barber shops and waiting rooms would have meant there was a high impact by these stories on public knowledge.

"They were on the side of the good guys as it turns out," he said of Reader's Digest in the 1950s. I wonder how the other guys felt about that comment....

It was in the 1960s, he said that Canadians received a "deluge of information" as reports on the Royal College of Physicians conclusions and the Canadian Veterans study were circulated. Government was changing its approach and in 1963 Judy LaMarsh became the first Minister of Health to initiate a government response to the tobacco problem.

But it was the U.S. Surgeon General's report in January 1964 that Mr. Flaherty said received an intensity of press coverage on tobacco and health that has not been seen before or since. "That's why I regard it as a seminal report for awareness of smoking in Quebec. By the mid 1960s it is everywhere. It is impossible for people in Quebec not to be aware, in one way or another."

And as for the industry denials contained in those reports? Mr. Flaherty said that these comments were "drowned out" by others' perspectives.

He also provided insights that were not included in his report. He said that "one of the great fears of the elite was that there would be a dramatic reduction in excise tax" if people stopped smoking. He said the Canadian tobacco companies "sat back" and "took a much less activist role" than the American industry, and that they were "listened to with respect" by government as a result of their contributions to government coffers. Who knew?!

As the day drew to a close, Mr. Flaherty's chronology was coming up to the end of the 1960s. Perhaps tomorrow we will pick up with events from the 70s that are only 40 years old.

After a weekend's serene reflection

As promised, Mr. Guy Pratte returned with additional concerns to express in response to Justice Riordan's case management decision last week that limited the defence proof to 175 trial days and disallowed the  scheduling of class members at the end of the trial.

Mr. Pratte was overtly deferential in tone in asking Justice Riordan to reconsider his decision today, as he had been on Friday. But the substance of his arguments - to my ears - had a threatening undertone, iin suggestions that Justice Riordan had erred and had displayed partiality.

He said that last week's ruling was "premature." There had been inadequate notice to the parties and a failure to hear the parties in respect that there had been abuse in the past and might be in the future. He stressed that as each defendant is being sued separately, and will be ruled on separately, each of these "fierce competitors" required the ability to set their own case. The court should not interfere in the manner or sequence of defence witnesses, he said.

He pointed to the fact that the plaintiffs had not been limited, and had extended the time they took to present their case from its original 87 days to over 135 days and had made mid-trial adjustments to their witness list. In case this point was lost, he later returned to the judge's "duty of impartiality."  (The court transcript does not well record the many times Justice Riordan gave the plaintiffs the hairy eyeball, hastening the departure of some witnesses, nor does it show the particular resilience of the lawyers in the defence's drivers seat to hints and suggestions sent to them from the bench.)

Mr. Pratte concluded by asking that Justice Riordan issue a revised management decision that requires the companies to prepare a revised witness schedule by the summer break. The defendants could set a target date, he said, and regularly update the court on how they were doing. 

By characterizing the ruling as a "cri de coeur that has not fallen on deaf ears,"  Mr. Pratte suggested the defence would make some adjustments, but I didn't hear anything that suggested that getting information from the companies about the months ahead would be any less like pulling teeth. And although he began by saying he did not object to a deadline being imposed, by the end of his speech it was far from clear how such a thing could happen under his proposal.

Stay tuned for more rounds in The Defence vs. the 175 day Trial Schedule.

Tomorrow and Wednesday, the testimony of Mr. Flaherty will continue.

Day 29 - It's a question of privilege

There was an early start this morning to the Montreal class action suits against Canada's three large tobacco companies.

The schedule change was to permit plaintiff lawyer Philippe Trudel to file a number of documents related to document destruction in anticipation of tomorrow's hearing with ITL's former librarian, Ms. Carol Bizzarro. (They are Exhibits 319 A B C D E F G H I J K). This was accomplished with a remarkable efficiency, thanks to Deborah Glendinning's offer to apply a blanket objection to each of the documents. ("Much appreciated," said Justice Riordan).

By 9:50, however, it was business as usual...

When Contraband is not Smuggling (and vice versa)

The witness had not even been sworn in before the contentious issue of smuggling was raised again. The Court of Appeal has scheduled a hearing this fall to hear why Justice Riordan's openness to evidence on smuggling should or should not be appealed.

When Philippe Trudel, for the plaintiffs, sought to introduce a recent Imperial Tobacco document on contraband , Deborah Glendinning, for Imperial Tobacco, was quick on her feet. Even though the document, What's wrong with this picture is available on ITL's web-site, she did not want it entered into the trial record.  "This document post-dates the commencement of this suit by ten years," she told the judge. "Besides which, the claimants are confusing the issue -- you ruled on smuggling, but not on contraband. Contraband and smuggling are two different things."

Justice Riordan was not the only one that looked confused by this distinction. "You had better explain that to me."  Deborah Glendinning elaborated: "Smuggling is when the defendants put a product on the market that found its way back," she said. "Contraband is a product that is not made by the defendants."

"They are separate products?!" Justice Riordan looked doubtful. "Is that a generally accepted distinction?"

Ms. Glendinning stood by her explanation -- but her colleagues on the defence team did not exactly back her up. When Justice Riordan asked Guy Pratte point-blank "Do you agree with the definitions we were given?" the JTI-Macdonald lawyer demurred.  "I won't speak to that." Simon Potter did some fancy footwork to get his colleague out of the corner she had painted herself into, while still maintaining the objection to the 'contraband' document. It was a chronological distinction, he said. Smuggling was used to describe 'an historic period' while contraband refers to the more recent experience.

Be that as it may, as Philippe Trudel pointed out, in their guilty plea under the Excise Act, the companies had admitted to contraband activities.

Justice Riordan looked keen to move on. A "reserve" label was put on the document and later in the day, Justice Riordan decided to put all questions (and answers) on contraband and smuggling "under reserve".

The continuously uncurious Ed Ricard 

During the rest of the morning, plaintiff lawyers Philippe Trudel and Bruce Johnston tried to pull information out of Imperial Tobacco's former marketing strategist (and official witness), Ed Ricard. Between the documents provided and occasional answers, some insights into the company's operations were provided.

Some noteworthy exhibits show the company's efforts to stay ahead of social and regulatory changes (Exhibit 323 and 326) and give a detailed history of Imperial Tobacco's marketing efforts and strategies (Exhibit 324 and 327).

After the morning break the plaintiff team rotated pitchers. Bruce Johnston's steady flow of hard questions gave the hearing a new intensity.

He asked about a memo written by Ed Ricard in 1991, in which he forecast that tax increases would result in an increase in duty free sales and exports. (Exhibit 270). Did Mr. Ricard knew when he wrote this memo that the duty free and export cigarettes would be smuggled back to Canada? After a few indirect replies, Mr. Ricard acknowledged "at some point we knew that it was finding its way back and being sold here."  

The missing agreement with Health Canada 

With the clock moving towards the noon-time break and another witness scheduled for the afternoon, Mr. Johnston introduced the question of an agreement between Health Canada and the tobacco companies.

During his pre-trial examination (June 18, 2008) Mr. Ricard had been asked whether there was anything to prevent the company from providing information to consumers on health risks, and had answered:

A. I think there was -- there was an understanding that goes back to the late '50s, early '60s with Health Canada that the tobacco companies would not talk about the health effects of their products, and that Health Canada would take the role, duty and responsibility to do so. ... [Health Canada] said: "Imperial Tobacco, you are not going to say anything about all these risks." ... They said: "You are not going to talk about the health aspects or potential consequences of the product. That's the duty of Health Canada to inform Canadians."

Q. Was this in writing, by any chance?  
A. I have seen it in writing, yes, and I have seen it in statements from Health Canada.  

In response to a request for documents related to such an agreement, Imperial Tobacco provided not one but 62 documents. Impossible to know whether they were the ones Mr. Ricard had in mind that day, as he did not review them either before they were sent from Imperial Tobacco to the plaintiff lawyers, nor when the plaintiff lawyers provided them to him in anticipation of his appearance at the trial.

Before he returns (at a yet unspecified date) Mr. Ricard has undertaken to look at all of the 62 documents and identify any that he might have been referring to when he said he had seen a written agreement.

At 12:25 Mr. Ricard's testimony was suspended.

Facts, Opinions, and Privilege. 

David H. Flaherty may not be a household name, but he is a man with a distinguished career. He is a professor emeritus of history and law at the University of Western Ontario. He was the first Information and Privacy Commissioner in B.C. appointed through a merit-based process (and  not by appointment), a position he held from 1993 to 1999. He is an older brother to federal finance minister, Jim Flaherty.

Although Mr. Flaherty spent almost two decades working discretely for tobacco companies, this activity does not appear on his curriculum vitae. He is an expert witness in this case for Imperial Tobacco, but had been requested to appear today as a fact witness.

The plaintiffs wanted to question him about his involvement in the "Four Season Historical Awareness Project" and to introduce his work on that project from 1988 and 1989 to this trial. (References were made to additional documents that he had been advised by Imperial Tobacco lawyers to not bring to Montreal.)

Mr. Flaherty's testimony took less than an hour. In response to questions posed by André Lespérance, he  told of being approached by three separate law firms, each representing a tobacco company. They were looking for an historian, he explained. At first he wasn't sure what the purpose of the task was, but later realized that it was probably for litigation purposes. He was never asked to keep the work confidential.

For 25 years, with the support of research associates and students, he traced "what smokers were told about smoking over time." He said the only tobacco trial he had been asked to prepare specific material for was the suit filed in Vancouver in 1988 by Roger Perron, who had lost both his legs to Buerger's disease. (The case was dismissed because the limitation period had been exceeded, but not before RJR-Macdonald had developed a litigation strategy that recommended that "David Flaherty is an eastern Canadian too suggestive of a big effort".)

Only once in 25 years, he said, had he had direct contact with the tobacco industry. Before he could provide details on what happened at that meeting, objections were flying across the court room. Quickly, the real issue of the day was before Justice Riordan: could David Flaherty's work on the Four Season Project be admitted to the trial, or was it subject to privilege?

Mr. Flaherty was sent home, and will likely not be seen until Imperial Tobacco calls him to provide his expert testimony.

Litigation privilege or solicitor-client privilege?

Plaintiff lawyer André Lespérance did not suggest that David Flaherty's report was never privileged.  "It is clear that the companies gave him a mandate to prepare for litigation," he said. In comparing the 1988 version with the opinion presented in this trial, he found numerous similarities. But the litigation privilege that might normally apply to this document no longer applies, he said. "Because the document is on the web-site, privilege has been waived."

Suzanne Coté had a different view. Mr. Flaherty's work was not produced in connection with this or other litigation, she said, but under the category of solicitor-client privilege. "The solicitor-client privilege never ends," she said dramatically "the lawyers take it to their coffins."  The fact that the documents in question were compelled evidence in other trials did not mean that the privilege was lost, nor that other companies could waive privilege for Imperial Tobacco.

Further submissions to support her views were offered by Guy Pratte for JTI-Macdonald and Simon Potter for Rothmans, Benson and Hedges.

David Flaherty, had he been allowed to stay for the discussion, might have enjoyed the irony of the moment. During his tenure as Information Commissioner for British Columbia he made frequent assessments on the use/abuse of solicitor-client privilege. Now it was his work that was under discussion.

He might also have found it ironic that the plaintiffs were arguing to have the work of  a defendant's expert  admitted and that the defendant's were arguing against a similar report to their commissioned opinion being on the trial record.

André Lespérance's closing comments clarified this seeming oddity: Mr. Flaherty's work over the past 25 years showed that Imperial Tobacco was in preparation mode for lawsuits.

Yesterday, a list of Imperial Tobacco's undertakings had been filed (Exhibit 297-12). In them, Imperial Tobacco had denied that its change in policy on document retention (made around the same time as the Four Season Project) had any relationship to litigation concerns. The company was preparing for litigation at that time, suggested Mr. Lespérance. "The Flaherty report shows that there was an intention or expectation of litigation."

On that note, Justice Riordan gathered his materials, and the room stood as he left the court.