Day 144: Some unbelievable coincidences

The May long weekend has arrived. It is called Victoria Day in most parts of the country, but for the past decade it has been known as National Patriots Day in Quebec, where the tobacco class actions have just finished the first week of hearings on the "defence proof."

My bet is that very few lawyers active in the file will be able to enjoy the spring weather, but will instead be caucusing about how to adjust to the developments of this most interesting week.

The end of the line for witness, Jacques Lacoursière

During the first part of the week, there were more than a few expressions of sympathy/pity directed by the lawyers representing Rothmans, Benson and Hedges and JTI-Macdonald towards their first expert witness, the popular historian Jacques Lacoursière.

"An elderly person," "a man of 81 years," "he is tired," the judge was given as reasons to prevent certain questions being asked of him, or to interrupt the cross-examination with an overnight break.

Even observers from the health community expressed sympathy this morning at sight of this diminutive man with thin white hair sitting alone and seemingly lonely during the morning break. His stammering short replies and reliance on written notes made it sound like he might be suffering from a surfeit of "senior moments."

But as the day progressed, and the plaintiff's lawyers racked up several more damning statements from one of Quebec's better known historians, I could not help but feel that some sympathy should be extended to the companies who had this man appear as their opening act.

The continuation ....

Mr. Trudel resumed his cross examination from yesterday, maintaining a focus on shaking confidence in the witnesses' conclusion that in recent decades it was impossible for a Quebec smoker not to have known about the risks of smoking. 

In the course of answering these questions, Mr. Lacoursière revealed much about the influences that helped shape the report and those that were held off. In doing so, he left the impression that his own understanding of the social factors that influence knowledge and beliefs was weak, and that the influence on his report by historians hired by the litigants had been very strong.

Alone in his thoughts

Mr. Lacoursière is only one of 4 historians who have been hired as expert witnesses in this trial. (The other 3 are David Flaherty, Robert Perrins and Robert Proctor),

Mr. Trudel wanted to discuss with him his views on the conclusions of the other experts. The problem was that Mr. Lacoursière had decided not to read this material because he "had his own view" and "thought it would be better not to be influenced by others."

Nor had he read published reports on the historial reviews in other trials which supported "common knowledge" defence in tobacco litigation. [I am grateful to a reader for providing links to two such reports - 1, 2 ].

It is not very often that a man who is addressed as "professor" admits to not wanting to read the research of colleagues in his own field of study. And it seemed even more at odds with the statement in his expert report that he had since his student days "kept information on tobacco, every time I found it, because this affected the everyday life of people."

Justice Riordan also seemed perplexed. He commented that scholars often influence each other, and asked the historian whether it was just with respect to tobacco that he took this approach, and whether he generally read what his colleagues wrote.

"Je reste isolé dans mes pensées," said Mr. Lacoursiere. I am alone in my thoughts.

But not alone in the work

But a few minutes later, Mr. Lacoursière revealed that he was actively engaged with other historians in the course of this paper. In addition to the work of the UQAM historian (José Igartua) who he said had been recruited by the tobacco companies to supervise the collection of many thousands of newspaper stories, he had done his own recruitment of a University of Laval historian, Marc Vallières.

The information came to light when Mr. Trudel asked whether an attempt had been made to count the number of news articles on the topic in a given period, information which was suggested but not detailed in paragraph 61 of his report. ( Exhibit 30028.1). "Yes," replied the witness, identifying Mr. Vallières as the researcher on that project.

Marc Vallières,  historian and one of at
least 7 Quebec historians contributing to the trial 

This seemed to take Mr. Trudel by surprise - for as it turned out, he had requested such information from RBH counsel, Jean François Lehoux, and been told that it did not exist.

JTI-Macdonald counsel, Francois Grondin, stood quickly to declare that this other research was covered by litigation privilege. Other objections were made that it was not relevant.

Justice Riordan's exercise to untangle the facts that would let him rule on the objections created a mini-drama at the beginning of the day. Mr. Trudel read aloud (a little too quickly for these fingers to both transcribe and translate) Mr Lehoux's e-mail, which to these ears sounded like a denial of the existence of any such report. (Mr. Lehoux pointed the finger at Mr. Lacoursière for the content of the e-mail!)

The background provided by Mr. Lacourcière to Justice Riordan changed during its telling. At first, he said he had contacted Mr. Vallières in 2010, but when it was established that the threshold date in question was the completion date of his expert report (in December 2010), he changed his mind and said it was actually in 2011 that he had asked Mr. Vallière to conduct this work. Mixing up dates is easy to do - even for historians!

Seeing where the ruling was going, Mr. Trudel withdrew his request for the document. But the inconsistency between the explanations of the JTI and RBH legal teams -- was it litigation privilege? or something under Mr. Lacoursière's control? -- and the unexpected but convenient mix-up over dates set a tone of suspicion that lingered throughout the morning.

Common knowledge in a heterogenous society

Robert Proctor (Exhibit 1238) detailed substantive concerns about Mr. Lacoursière's approach, and the inadequacy of merely cataloguing news stories that did not take into account other factors that influenced individual and social views.

Philippe Trudel pursued this line of criticism as he asked the witness to reflect on differences in knowledge of Quebecers of differing ages and social classes, of different diseases and at different points of time. He pointed to other factors that might influence opinion, like the role of the companies in fuelling the "scientific controversy" and asked whether this might not have contributed to the reception of information about the risks of smoking. Mr. Lacoursière mostly side-stepped these questions by referring to his lack of competence in medicine or science.

Conveniently missing information 

The file of 20,000 news and other reports which formed the reliance material for Mr. Lacoursières report have been put on the trial record. (Cataloguing these documents is a daunting task, and a way has not yet been found for them to be made readily available to the public.)

It turns out that these were not quite as comprehensive a set of clippings as first presented. They failed to include years of reports from the right-wing working man's tabloid, Montreal Matin. Mr. Lacoursière today described the paper today as "very favourable to the tobacco companies." 

The articles which were not included in his reliance material but which were found by the plaintiffs team in the local library would have contributed little to informing Quebecers that smoking was dangerous, and would seem more likely to contribute to misinformation. One implied that tobacco companies were the ones with knowledge about smoking and health, another described a landmark study on Canadian veterans and lung cancer as "an insult to statistical sciences," and a third promoted the idea of smoking in moderation.

Another document seemingly missing from the reliance material was an editorial from a paper at the opposite end of the journalistic spectrum from the now-defunct Montreal Matin. In 1969, the Montreal Devoir  took an editorial position that dumped on the scientific evidence that tied smoking to disease. It talked up the idea that air pollution, urbanization or even changes in the level of fat in milk might be the culprit behind increases in lung cancer.

How was it that this article had been missed in his report? Mr. Lacoursière pointed the finger at Mr. Igartua, who had been recruited by the lawyers to supervise the review of that paper.

The cross examination by Bruce Johnston

When he stood to ask a short set of questions, Mr. Johnston maintained the same laid-back and unruffled tone that had been set by his colleague over the past two days.

But, if anything, his questions were tougher - and they were aimed not at Mr. Lacoursière's conclusions, but at his integrity.

Mr. Johnston began by asking the witness whether he had received any help in preparing his report. "No." Did you have notes from anyone? "No." Did he personally prepare the summaries of news-reports? "Yes." Was he sure? "Yes."  

So why was it that the summary phrase for a Reader's Digest article (a magazine that Mr. Lacoursière said he had personally reviewed) was word for word identical to that on the cover sheets that he said he had no hand in drafting? The two identical phrases were read to the court.

Bruce Johnston: Why is the formulation the same?

Jacques Lacoursière: It is the same formulation.

Bruce Johnston: Can you explain why?

Jacques Lacoursière: Probably the person came to the same conclusions

Bruce Johnston: In the same way?

Jacques Lacoursière: With the same words!

Yesterday, Mr. Lacoursière had been asked to explain how it was that stories from the Financial Post in the 1960s had been caught in his research net when that paper was not included in the study design. (He said that he had read them by chance 40 years ago, and had just happened to have kept them).

Lo and behold! Mr. Lacoursière had also described this ancient Financial Post story using the identical words that were on the cover sheet prepared by someone else.

As he sat down, Mr. Johnston put a rhetorical question on the record. "How is it that the words can be exactly the same as those which you put in your report." 

Francois Grondin, the lawyer for JTI-Macdonald, conjectured that the research notes might have been prepared after Mr. Lacousière's 2003 report. Mr. Lacoursière's reputation for honesty might be helped by the companies being able to substantiate the unusual sequence of research notes being drafted at the end of a project.  

And Justice Riordan's inquiry

The last question to this witness came from the judge, who wanted to better understand how advertising might influence "common knowledge" about smoking and disease. Mr. Lacoursière's final answer brought smiles to the plaintiffs' side of the court.

Justice Riordan: Are you saying that advertising has no effect?
Jacques Lacoursière. It could have an effect, but because I am not an expert I cannot say whether or not it does. But the manner in which advertising happens is very seductive. That's the least I can say.
Justice Riordan. I think we will leave it there.

Abuse process? Not me! or me! or me!

In his scathing ruling issued on Wednesday, Justice Riordan justifies his decision to limit the time permitted for the companies to present their defence proof to 175 days (125% of the time taken by the plaintiffs) by describing the companies proposal for 300 trial days as "excessive and unreasonable to the point of being abusive."

It would appear that these words stung, and that some professional reputations felt besmirched. Lawyers for the companies who have adopted the view that "we all hang together or we will surely hang separately" today expressed their unhappiness with being 'hanged together'.

Simon Potter (RBH) was the first to stand and ask permission to make "a speech." Mr. Potter makes lots of speeches in this trial, but most of them are extemporized. It was quite unusual to see him reading from notes, which he had by inference rehearsed and which he had timed to 6 minutes.

In a tone of voice more reminiscent of a solemn church reading than his usual flamboyant oratorical style, he asked Justice Riordan to withdraw the opinions expressed in his ruling, even if the time constraints remained in place. He said that an injustice had been done to Rothmans, Benson and Hedges, which "did not deserve a single one of the critical statements in your opinion."  He took a few swipes at what he saw as excesses from the plaintiffs team, and protested the idea that he might have to "squelch" his preference for an expert witness in favour of those chosen by his colleagues working for other firms.

He hinted that the ruling was causing him some trouble - " I am sure you will understand that my client is asking me some very difficult questions".

Suzanne Coté represents Imperial Tobacco, whose legal team insists on sitting at the front of the courtroom (as the default leader of the defence), and which demonstrably has used up most of the air time in objections, and most of the court time in arguments and appeals. "You were very harsh on the client, ITL" she said.

She was clearly stinging from the word abusive being recorded "'in a judgement of the Superior Court! ... Suzanne Cote does not accept it because Suzanne Coté is not abusive!" 

She claimed that the companies could have and would provided a more acceptable option. "We are reasonable. Let us talk and come back with something."

Guy Pratte (for JTI-Macdonald) said he wanted to be able to "calmly and serenely" review the opinion and perhaps discuss it next week. He expressed concerns that the ruling "levels against me and people from my team ...the most serious charge that can be levelled – that of abusing a court's process - a court to whom I owe my highest duty." 

When the court resumed after lunch, Justice Riordan promised that he "would take time to reflect - we will talk next week."

I think there will be a lot of eyes on this discussion. In his ruling, the judge seems to draw a line past which the manoeuvres by armies of lawyers hired by deep-pocketed clients become a misuse of public resources.

More on class definitions and other important words

In the afternoon, the court returned to tinker with the wording proposed by the plaintiffs to respond to Justice Riordan's concerns about ambiguity and clarity. For over an hour, the companies provided their new and renewed objections.  

During the discussion, Justice Riordan revealed that he does not consider cancer of the oral cavity to be included in the Blais class, and he urged the companies to see the advantages to their case of having the definitions tailored to the evidence at this point of the trial.

Monday is a holiday. On Tuesday, Mr. David Flaherty will make his second appearance at this trial - this time as an expert witness. 

Day 143: The countdown clock starts

There are days when observing the Montreal tobacco trials has been like watching the proverbial paint dry. And there are days when it has all the excitement of playoff hockey.

Minus the beer and the cheering, today was a Stanley Cup day -- everyone was sitting forward in their seat intensively watching events unfold. Yet arguably the biggest development of the day happened not in the courtroom, but in a ruling Judge Riordan issued mid-day.

Time allocation 

Justice Riordan played what he must hope will be the final round in his ongoing tussle to get a reasonable and realistic schedule from the tobacco companies on the presentation of their case. In today's "Case Management Ruling" he followed through with his threat to cut the time available to the companies to 175 days, and set some conditions on the sequencing of their witnesses. (This gives the defence about three more months to than the plaintiffs took).

His nine-page judgment had harsh words for the companies - and especially for BAT's Canadian subsidiary, Imperial Tobacco Canada. "The Court must now intervene to avoid what it considers to be abuses on the part of the Companies, and especially ITL." He cites the "excessive lengths" required to review documents resulting from ITL's persistent objections, the "triplication" of expert witnesses with "overlap and overkill."  

"The court is convinced that ITL, in particular, is attempting to prolong this trial unnecessarily by many months through a series of excessive and unreasonable measures."  ...  "The courts are not the servants of individual litigants but, rather, of the system of justice." Any bets on whether Imperial Tobacco refers this ruling to the Appeal Court?

It would be hard to maintain this was a victory for the plaintiffs in that they mostly sat silent during the protracted exchanges between the defendant companies and Justice Riordan over several months. But it certainly is a welcome development for them and their pocketbooks. Doubtless they agree with Justice Riordan's comment that "After 15 years... judgment must be rendered in these files."

 Or maybe the companies will decide to take even less time ....

After this week's debacle of their first expert witness, Mr. Jacques Lacoursière, the companies might not look so enthusiastically at the prospect of a long trial.

Beginning this Monday, it has been the companies turn to tell their side of the story. They opened with a well-known and highly respected historian, whose job it was to convince the judge that Quebecers have long had "common knowledge" about the harms of smoking and addiction to cigarettes.

But it started poorly, and went down hill from there.

Under questioning from his own client (RBH lawyer, Jean-Francois Lehoux) the witness repeatedly blanked. Even when fed the cue-phrase "with respect to common knowledge" ("au niveau de la connaissance populaire") at the beginning of each question, he rarely provided a reply that was not a verbatim repeat of his expert report (Exhibit 30028.1) or incoherent or irrelevant.

It was hard to connect this deer-in-the-headlights witness with a man who is well known and well loved because of his ability to communicate.

It was almost a relief yesterday when Mr. Lacoursière pleaded tiredness and the court adjourned for the afternoon.

Throwing in the towel on their first witness

This morning, Justice Riordan asked kindly if Mr. Lacoursière was feeling better, and the two men discussed the restorative powers of an afternoon nap.

But the companies apparently decided they would take no more risks with this witness. After 2 or 3 brief questions (during which the witness was again corrected for putting the term "beliefs/croyances" on the record when what really meant to say (cough) was "knowledge/ connaissance", RBH's lawyer, Jean Francois Lehoux, packed it in.

The court had been in session for less than 15 minutes - and about half of their first witness' report was left untouched.

The Cross Examination

It was up to Phlippe Trudel to begin the cross-examination. From his first question until the court adjourned mid afternoon, the courtroom had the particular electric feeling that comes during cross examination. (It is at these moments that the trial really resembles a spectator sport, and when you can virtually see the mental score boards each side is keeping).

Surprisingly perhaps, Mr. Lacoursière seemed more relaxed and more confident (less fearful?) when being questioned by this plaintiffs lawyer than he had when responding to his client earlier this week. He no longer sat slumped over his report, but stood more erect and mostly maintained eye contact with Mr. Trudel.

The conversational tone in which Philippe Trudel put his questions only slightly masked how tough they were.

He almost mockingly adopted the same pattern and patter that the RBH counsel had drilled down over the past few days. Just as Mr. Lehoux had done, he identified a paragraph in the report and then ask the witness a formulaic question about its significance "with respect to common knowledge." 

With his opponent asking questions almost identical to his own, Mr. Lehoux had very little ground to object, and indeed was unable to block any of Mr. Trudel's questions over the day.

Over the morning Mr. Lacoursière was asked questions that exposed his inconsistent approach to polling and smokers' beliefs. Oh, and they also drew attention to moments when it was clear that Canadians really didn't have a solid grasp of the dangers of smoking - like a 1991 survey conducted for a health charity that showed that very view Canadians could volunteer that tobacco use caused common diseases, like emphysema and asthma.

Why yes, he had included poll results in his report, and yes, he did interpret their importance as well as criticize their methodologies, but then again, he was "as an historian, not qualified to interpret polls." This answer sounded even more rehearsed than it had yesterday.

Nonetheless, it wasn't long before Mr. Lacoursière conceded that an historian could use polling while interpreting "common knowledge." It was just that he had chosen not to do so.

Other questions from Mr. Trudel exposed the limitations of his report on what smokers knew. Did smokers understand how important the risks of tobacco use were? Or how likely they were to get any of those diseases? By showing that he had no personal knowledge of the degree of risk for larynx cancer or bronchitis, Mr. Lacourcière effectly demonstrated that if there was common knowledge on these issues, it was not shared by all.

Still more questions looked at the methodology Mr. Lehoux had used -- why were some newspaper reports included when the papers themselves had not been included in the survey methodology? (Can one really have a 1963 Financial Post clipping on hand "by chance"?)  And in the absence of established or constant definitions for addiction ("dépendence") how did this historian come up with a meaning that he could apply historically?

The inference grew stronger that the hands on the pen of Mr. Lacourcière's report may not have been uniquely his own.

Ghostwriters?

It was when Mr. Lacoursière admitted to having retinal problems and no vision in one eye -- and was unable to read an overhead screen on which the letters were blown up to at least 5 inches -- that Mr. Trudel began to explore the background to Mr. Lacoursière's report.

(With such bad vision, is it plausible that this witness reviewed 20,000 texts, let alone the microfiche files from which they came? Well, he said his vision was much better in 2001 when he commenced the research.)

It turns out that the man who directed research on the majority of newspapers which were reviewed (UQAM history professor José Igartua), had not been selected by Mr. Lacoursière, but had been chosen by the lawyers at Ogilvy Renault. (Simon Potter, now representing RBH through McCarthy-Tétrault was a partner at Ogilvy Renault at this time, and his client was Imperial Tobacco Canada).

Nor was there a close working relationship between the two men. Mr. Lacoursière spoke of difficulties reaching Mr. Igartua when he wanted to understand why files from the Gazette had not been collected after 1983. (After he finally was able to reach him, Mr. Igartua apparently did not know).

The pre-digested state of the "reliance" materials (the 20,000 documents from which Mr. Lacoursière had selected some 700 extracts) was made evident when Mr. Trudel displayed the cover sheets that accompanied each binder.

The research notes that were displayed on screen in the court (soon to be available as Exhibit 1541) look remarkably like the summaries in Mr. Lacoursière's chronologically ordered report.

Others may have had different impressions, but from my seat Mr. Lacoursière began to look less like an authority and more like a pawn in someone else's game.

Advertising

Although no tobacco advertisements were included among the material Mr. Lacoursière considered relevant for "common knowledge", he had nonetheless  routinely included them in his files when clipping Actualité and the two other publications he had personally reviewed.

Mr. Trudel put a binder of such ads on the trial record (Exhibit 1541), and drew attention to a Vantage ad that addressed smokers "REMORSE" ("Remord"). (It is not yet available, but is in a similar genre to the smoke-smart ads discussed earlier in the trial).

Could such ads have an impact on beliefs about filters? Mr. Trudel wanted to know.

His answer had both Mr. Lehoux and the lawyer representing the company that made Vantage, Francois Grondin, scrambling to their feet."It's not important to me as an historian if a company tries to convince people that there is less danger in one product than another." said the industry witness.

Bad enough to have your witness get embroiled in the "beliefs vs. knowledge" debate -- but now he was commenting on the intention of tobacco companies to influence beliefs about harmfulness!

Mr. Lacoursière was sent out of the room while the industry lawyers attempted to block further questions on advertising. Having apparently run out legal reasons, Mssrs Grondin and Lehoux appealed to the unfairness of asking "a man of 81 years to comment on an ad he has never seen."  (Imperial Tobacco's lawyers were unusually silent throughout the day.)

This was the second time that an appeal to the witness' age has been made to block a question or comment from the plaintiffs side. Justice Riordan was not in the mood to tolerate such ageism. "Let me be clear. His age has NOTHING to do with the possibility of asking him a question and the professional requirements of his job. ... Je - rejette - les - objections! ".

Richard Pollay is endorsed - well, hypothetically at least

There was a hint that the last set of questions today may not have been planned far in advance -- Mr. Trudel found himself in the awkward position of asking Imperial Tobacco to provide a copy of his own history of marketing expert, Richard Pollay.

Mr Trudel wanted Mr. Lacoursière's opinion on Richard Pollay's views that advertising was designed to affect smokers' beliefs by providing "friendly familiarity,"  "reassurance" and "misleading" information.  If Mr. Pollay were correct, might that not affect common knowledge? 

Before these questions were answered, more objections had to be overcome - but this time they were from a witness who clearly didn't want to give his opinion and who said he didn't "like hypothetical situations."

Justice Riordan directed him to answer."You are an expert witness - he can ask you a hypothetical question. You are here to help me. You should accept the hypothesis and to respond to the question."

Mr. Lacoursière responded that for each of the three propositions - familiarity, reassurance, misleading -- there could indeed be an impact on common knowledge.

Tomorrow, Mr. Johnston will resume the plaintiff's cross examination. A discussion of the definition of class members is also anticipated. 

Day 142: The witness calls a time out.

A funny thing happened during the second day of the "defence proof" in the Montreal tobacco trials. The examination of popular historian Mr. Jacques Lacoursière collapsed before noon when this first industry witness said he was unable to continue for the rest of the day.

A rocky start

The day began very much as it had left off yesterday. RBH lawyer, Mr. Jean-Francois Lehoux, and Justice Riordan were locked in a low-key dispute about the amount of court time that could be used during Mr. Lacoursière's testimony to display old news stories without the witness adding any details that weren't already in his expert report. (Exhibit 30028.1) The judge was grumbling, but the lawyer pressed on anyway.

Nor had the subtext changed. The defence lawyers and the judge are still locked in a their unresolved dispute about the amount of court time that can be made available to them to present their case.

All in all, it felt like there was not a lot of goodwill flowing between the defence front bench and THE bench. Not a great environment for an inexperienced witness trying to find his footing!

Encore!

Mr. Lehoux did not improve the mood by effectively demanding that Justice Riordan reverse yesterday's decision to cut-off the viewing of a half-hour television program.

Once again, the court was shown an edition of Radio Canada's Affaires Publiques produced shortly after the 1964 Surgeon General's report was released. On the panel of guests were two earnest  physicians (a thoracic surgeon and a psychiatrist), the editor of Quebec's version of Reader's Digest (Sélection), and a glamour-puss actress-dramaturge who was struggling to follow medical advice to quit.

Mme Jean Desprez
speaking about her struggle to quit smoking
as part of a panel on on Radio Canada's Affaires Publiques

Pressed by Justice Riordan to explain what it was that was so important to see, Mr. Lehoux identified the decision to quit made by the chain-smoking Ms. Jean Desprez. Sure enough, 23 minutes into the show and a few minutes after the program host gallantly lit yet another cigarette for her, the Quebec comédienne declares that this one will be her last cigarette.

When the screen went blank, the witness was asked to explain the importance of this film to the question of common knowledge.

His answer was surprisingly uninformative - and all the more so in the context of the insistence of the film being shown. He said simply that the program showed that health authorities clearly communicated the harmfulness of smoking and that they had at this time knowledge of all the dangers associated with smoking ("connaissent fort bien...tous les dangers"). The rich pool of other inferences that might be drawn from this program - like the uncertainty expressed by the host - went without comment. Nor was any mention made of what happened to Ms. Desprez and her desire to quit.

And repetition

For the next hour, Mr. Lehoux asked the witness to comment on some of the newspaper articles published during the 1970s that were identified in his expert report and which were the basis of his conclusion that by this time it was impossible not to know about the risks of smoking and addiction.

("Je peux affirmer, en tant qu'historien, qu'il est devenu impossible de ne pas avoir connaissance des dangers pour la santé du fait de fumer régulièrement et de la dépendance que cela peut créer.")

For each article, a nicely presented powerpoint slide was displayed in which relevant passages were highlighted and enlarged. (These slides will eventually be available in a series of exhibits beginning with 30032.1).

The headlines traced the key moments in tobacco control in that decade: 

The World Health Organization declares war on tobacco. The Canadian Minister of Health, John Munro, says that all cigarettes were dangerous. The U.S. Congress receives a 500-page report on smoking. Readers Digest publishes not one but seven articles on smoking.  The British College of Surgeons cautions that 'Every cigarette reduces your life expectancy by 5 minutes.' 

Mr. Lacoursière's answers continued to sound very much like the text of his expert report. He seemed unable to come up with a different way of presenting the same information, let alone tying it to a larger theme or hammering home the points his lawyer was hoping for.

Mr. Lehoux's questions became more obvious and directive ("what does this say about common knowledge"), and his dissatisfaction with the answers from his witness more apparent ("is that all you have to say about this?"). Justice Riordan's head began to sink into his hands.

Trying to adjust

There may have been a discussion about how to put things back on track during the regular morning break. Immediately after the court reconvened, Mr. Lecoursière was asked to explain to Justice Riordan the rationale for going "fastidiously" through these documents. The witness explained that a global view nonetheless required a review at the "microscopic level" He said it was important to go paragraph by paragraph even if it was not interesting.

"I do find it interesting," Justice Riordan corrected him gently, "but I find not useful to have you read over your report. ... It is useful to underline or emphasize, but not to repeat." 

After this, Mr. Lacoursière's answers became even more stilted, and he appeared increasingly stressed. Whether cause or effect, Mr. Lehoux's impatience with his witness also became more evident.

Things came to a head when a 1979 article in La Presse reporting that the estimated Canadian death toll from smoking had reached 28,700 was displayed. To his lawyer's question "why was this so important?"
Mr. Lacourcière fumbled for the expected reply.

Mr. Lehoux's unveiled dissatisfaction and his repetition of the question looked humiliating for the witness. It was an awkward and uncomfortable moment -- by this time Justice Riordan's face had almost entirely disappeared behind his hands.

Finally, on about the fourth try, the witness finally came up with the answer "because it shows people knew" ("les gens connaissent").

He got it! exclaimed Bruce Johnston from the plaintiff's benches, putting on record the trained-monkey feeling of the court. "Have some respect!" Mr. Lehoux shot back - but the next reprimand was sent in his direction. "It is up to me to correct behaviour," Justice Riordan said.

Within a few minutes, a time-out had been called. The witness needed a break. For the next quarter hour, the lawyers gathered in the hallways in two separate caucuses as the witness sat alone on the hard benches that line the 17th floor corridor.

But not long after the court reconvened, Mr. Lacoursière was asking for a longer break. Justice Riordan sounded sympathetic and concerned as he invited him to step back and return tomorrow morning.

Mind the gap

One (accidental?) consequence of this development is that the tobacco companies are no longer on the hook to come up with another witness for Thursday - something they had been unable/unwilling to do.

Instead, the last day of sitting this week will be used to further discussions on the definitions that will be applied to the classes of Quebecers who will be eligible to participate in these suits.

The testimony of Mr. Lacoursière continues tomorrow

Day 141: Jacques Lacoursière and common knowledge

Today the three tobacco companies began to present their joint proof against the allegations they face in Quebec's two large class action suits.

They chose to begin with evidence to support their claim that the harms of smoking were well known by the Quebec smokers who are represented in these actions. The expert witness to whom they assigned this task is as close to a "star witness" as they have on their roster.

The popular historian and his expert opinion

Within Quebec, Jacques Lacoursière is as close to a household name as an historian could be. Now 81 years old, his curriculum vitae bulges out with 50 years of notable publications and accolades. This teacher, television personality, author and researcher earned his PhD the hard way -- twice. In 2008, he received an honorary doctorate from both the University of Moncton and the Université Québec à Montréal.

Many Quebecers would have learned about their own history through the Boreal Express that he co-authored, or through his 15 volume history of the province sold through grocery chains Loblaws and Steinberg's, or through the Radio-Canada series on Duplessis for which he provided research support. The theme throughout his wide-ranging works on Quebec's, he told the court today, was "daily life."

Despite the fact that tobacco seems to have played a very small role in his publication history to-date, it turns out that this is a subject that has long interested him.

In the opening passages of his expert report, he recounts that it was an early exposure at school to Jacques Cartier's description of tobacco that piqued his interest, and that since then "every time that I found information on tobacco, I kept it, as it was among the issues affecting daily life that became my central interest." (An official translation of Mr. Lacoursière's report is not available, and my clumsy translation may not do it justice - see para 7 in his report, Exhibit 30028.1, for the original text).

He suggests that for over 60 years, he has kept a clipping file on tobacco! Beginning in 1949 with the daily newspaper Le Devoir, he then expanded his subscriptions to La Presse, The Gazette, Journal de Montreal (in 1966)), and Le Soleil and Journal de Quebec (in 1990). "All in order to pull out those things which touched daily life, including, of course, tobacco."  

Even though he never published on tobacco, it sounds as though Mr. Lacoursière was well prepared to help Rothmans, Benson and Hedges when they approached with a request for him to review the state of common knowledge in Quebec on the to physical health and addictions risks associated with tobacco use and cigarettes for the years 1950 to 1998.

With the help of four Ph.D. level history students and others, Mr. Lacoursière's work for this case involved the collection of about 20,000 articles and historic records. They collected over 143 binders with material, but only about 1 in 30 of those documents found their way into his report.

The 714 records (newspaper clippings, electronic files and other blasts-from-the-past) are not yet available, but will likely be put on the trial record later this week as Exhibits 30029.1 to 30029.714. They will provide a useful historical compendium of the way that key events in tobacco history were covered by newspapers, magazines and electronic media in Quebec.

These records include news reports of government statements and scientific findings, as well as those of independent scientists and industry-related scientists who contested the lung-cancer smoking link. The denials by tobacco company representatives also seem to be faithfully included. In this mixed bag "About 90% of the news reports denounced tobacco use,and about 10% contested the relationship between smoking and disease,"  Mr. Lacoursière told the court this afternoon.

His report and its annexes will provide a handy-dandy catalogue of smoking-related events as covered in Quebec newspapers over six decades. But as for his conclusion that  it would be impossible for someone not to know that smoking was dangerous? Or that his research task was relevant? That's a different question.

Flaws in Mr. Lacoursière's work have already been discussed in this trial when another historian, Robert Proctor, soundly criticized the approach taken by the industry's "common knowledge" experts Jacques Lacoursière, David Flaherty and Robert Perrins. In his own expert report, (Exhibit 1238) Robert Proctor faults these historians for failing to look beyond the newspaper headlines.

Mr. Proctor criticized Mr. Lacoursière for making "no effort to look at the industry‘s impact on popular attitudes, and no effort to examine how manipulations in the design and marketing of cigarettes—such as filters or low tars, for example—may have influenced smoking behavior and popular attitudes toward cigarettes or the maladies they cause.  Instead, we have a kind of argumentation by accumulation .... Lacoursière‘s chronology is more like a clerical performance than a serious historical assessment and analysis."

Mr. Lacoursière's testimony 

One might have expected the day to be a good one for the combined defence teams. Certainly there was no indication from their teams that they expected anything but smooth sailing on this their opening day. Why they had even called in the media! (The CBC sent a camera crew and filed a small report).

The conditions for the defence were as ripe as they are likely to get. Mr. Lacoursière is an experienced raconteur (you don't get to be a famous popular historian without knowing how to tell a story well). The plaintiffs had planned no unpleasantness or challenge to his being qualified as "an expert in popular history". The vagaries of scheduling meant that the soft-spots in his report had already been put on record, giving the witness the advantage of 'having the last word' against his critics.

Why, even the rules of this courtroom were softened in ways that allow the defence to make its points more clearly!  One of the first things shown this morning were 2 powerpoint slides that RBH lawyer, Jean-Francois Lehoux, used to establish how this witness perceived the development of common knowledge and how he approached historic research. (Technically, Mr. Lacoursière is an RBH witness).

Now, only four months ago the plaintiffs were warned off their plans to use powerpoint. Justice Riordan had cited concerns about the amount of court time that would be lost to objections from the tobacco company lawyers to the courtroom innovation. With the tables turned, the plaintiffs let it pass almost without comment. Philippe Trudel rose to share some "private reflections", thought the better of it and quickly sat down. It was only one of several moments over the day that made heads shake and lips smile.

Going off the rails

By mid-day, however, the Defence's first day seemed to be getting bogged down.

The dialogue between lawyer and witness had slid into a pattern that was not going anywhere pretty. Mr. Lehoux's questions on the report seemed to elicit no new information, but merely prompted the witness to restate his written view. (Whether the witness' obvious reliance on the written text in his answers was related to the minor mental lapses he was experiencing - i.e. remembering people's names - was hard to assess.) Progress seemed slow and - even to my ears - the questions seemed leading.

The plaintiffs did not complain much - they seemed to have decided to allow the day to ride out. Justice Riordan, however, showed his irritation at the rate of progress even without the prompting of an objection.

After lunch, it went further downhill. Against Justice Riordan's obvious discomfort and repeated complaints, Mr. Lehoux insisted on playing numerous excerpts from television news programs, NFB films, radio interviews and Health Canada promotions.

An impatient court watched a "vox pop" television item, a studio interview filmed after the Surgeon General's report, and listened to radio interviews with physicians. We saw smokers from all walks of life - railwaymen, glamour gals, physicians - explain their frustration in trying to quit smoking.

There were enough NFB cartoons to fill a good part of a Saturday morning TV schedule. There was one about a child who escapes from the land of the King Size, and another cartoon showing a smoker so despondent about his inability to quit that he decides to end it all by filling the kitchen with gas - only to  trigger an explosion as he lights a final cigarette. Smoking tango dancers. Smokers avenging taxes.  Blowing up dynamite!  And more!

It was a most peculiar afternoon - and not just because there was no popcorn to go with the film! Surprisingly, given the story-telling talents of the witness and the novelty in the court of watching a new medium, there was no narrative arch to the material that was being presented and certainly no dramatic punch.

Knowledge and beliefs

para 112 of
Mr. Lacoursière's report

A continuing question in this trial is the importance of distinguishing between knowledge and beliefs. On this point, Mr. Lacoursière seemed not entirely helpful to his clients.

At one point, Mr. Lehoux had asked him to explain why, as an historian, he could report on knowledge (measurable through historic records) but could not do so for beliefs (which would be in the domain of pollsters) and then tried to maintain that there was no reference in this expert's report related to popular beliefs.

Mr. Lacoursière interrupted to correct his client, and pointed to a section in his report where indeed both knowledge and beliefs had been reported. In that case (para 112), the number of Canadians who believed that smoking caused lung cancer in 1952 was less than one-third of those who had heard reports that it did. (25% vs. 89%).

There was another point where Mr. Lacoursière referred to beliefs ("croyances") instead of knowledge ("connaissances"), only to have Mr. Lehoux quickly correct him. This drew an objection from plaintiff lawyer Philippe Trudelle. The short verbal dust-up that followed - "It was a minor lapse! This is not a child's game" - could only have emphasized to the witness how important this distinction is to both sides.

Mr. Lehoux also gave his witness some opportunities to respond to the criticisms that were expressed by Mr. Proctor. Why did he not refer to tobacco advertising but did refer to advertising of stop-smoking aids? Why is it not important to public knowledge when industry representatives deny 'common knowledge'? 

Mr. Lacoursière's replies did not shed much light on the matter - the witness mere restated that the fact that stop-smoking aids were sold meant that there was a public understanding that it was hard to quit and that the industry views would not have affected public knowledge as much as those of the more credible organizations, like the government or medical authorities. (One might have thought that this was a more important distinction for 'beliefs about' rather than for 'having heard about', but there you go).

There will likely be more such opportunities presented tomorrow. Despite Justice Riordan's mid-afternoon threat to restrict Mr. Lehoux to one day of testimony, RBH will continue to examine Mr. Lacoursière tomorrow. The other companies and the plaintiffs will then have an opportunity to ask questions.

Can anyone find a witness?

There seems to have been slow progress in finding additional witnesses for this opening defence session, and Simon Potter was pointedly asked to explain what would be happening later this week after Mr. Lacoursière's testimony was finished.

Mr. Potter's offer to have the court talk about other yet-unresolved issues (like the definition of classes) was rejected. The plaintiffs and the judge want to know which witnesses are scheduled to fill in the holes left when Mr. Lacoursière is finished and before Mr. Flaherty begins -- and the holes after that too!

Despite having 90 plus witnesses on their list, the companies seem to have no one yet available to testify.

Tomorrow Mr. Lacoursière's testimony will continue.