Day 91: The 'common knowledge' defence takes a beating

There has been full house on the plaintiffs side of the courtroom this week during the testimony of historian Robert Proctor at the trial of the Quebec tobacco class action suits.

Several admirers of Mr. Proctor turned up to see their man in action (some of whom brought their copy of Golden Holocaust for signing). His fans, however, were outnumbered by visiting lawyers engaged in provincial lawsuits against the same tobacco companies. Talent scouts maybe?

It's always more fun to watch a game when the stands are full, and it was especially pleasurable this week to be surrounded by people who understand the law and 'the game' that is played out in court. Too bad they could not have left some of their insider insights behind after their short visit.

This knowledgeable audience seemed to have figured out by lunchtime yesterday (less than an hour after Mr. Potter started his cross examination) that the tobacco companies were doing themselves damage by prolonging this witnesses' time in the courtroom. It seemed to take the company lawyers another half day to figure this out.

But figure it out they did. This morning Mr. Potter announced that he had no more questions for the witness, although yesterday evening he had said he had a "number more" questions. He ceded the floor to his colleague from JTI-Macdonald, Mr. Doug Mitchell.

Like Simon Potter, Mr. Mitchell has decades of experience in tobacco cases in Canada, and has worked with many of the exhibits in this file during previous cases when his company was challenging federal laws banning tobacco advertising. Like Simon Potter, Mr. Mitchell is assigned the "bad cop" role on the defense team, and has the job of asking innuendo-laden questions and laying verbal traps.

(It is hard to describe in writing the particular contribution these lawyers bring to their questioning of this witness. The last person I knew who was able to say "Oh, I see" with the same blend of sneer, doubt and malice was my teenage sister. Surprisingly, she survived adolescence.)

I have no basis to know how these accomplished lawyers compare with industry standards, but this week they did not seem to measure up to the witness's ability to rise above the implied insults and step elegantly over any trip-wires.

Mr. Mitchell's first attempt to bolster his case was by selecting a footnote from Mr. Proctor's severed expert report (now Exhibit 1238), which was a document written by a man who until recently was a frequent visitor to this trial, Byron Rogers. His name does not appear on this document, "Policy Analysis of Tobacco Product Promotional Activity Restrictions", (Exhibit 990.26R, under reserve) because it is not customary for public servants to be named as primary authors of policy documents that are worked and reworked through government minsitries.  Nonetheless, Mr. Mitchell tried to make it sound like Mr. Proctor was a faulty researcher for not having identified the author or known the progeny of the document.

The contrast in the patient tone of Mr. Proctor's answers to the accusatory tone of the questions again served to strengthen the impression that the witness was a man you could put confidence in. He explained why the answer to Mr. Mitchell's question was irrelevant to the point in his report. (And he took advantage of the moment to provide a further short lesson on the role that industry sponsorship of cultural and sporting events played in undermining restrictions on traditional advertising.)

Mr. Mitchell tried a second time, this time with the American Historical Society's Statement on Standards of Professional Conduct. Mr. Proctor is a member of this society, and said he subscribes to its values - including those that Mr. Mitchell tried to imply were missing in his testimony and report. Mr. Mitchell implied that the witness was not respectful of "divergent points of view" and was too loose with use of material written by others for someone in a profession that practices zero tolerance of plagiarism. Mr. Proctor's calm answers made the questions sound more juvenile than they probably were.

Mr. Mitchell, who only yesterday had "two to three hours" of questions for the witness, announced after not much more time than a smoke-break that he was finished.

Likewise, Ms. Glendenning threw in the towel. Yesterday she had said that her questions for Mr. Proctor would extend beyond this week. "There are things that have come up in the evidence this morning that we're going to need some time to deal with, and so even if we get started tomorrow, we will not be finished [Thursday], in my view."  This morning she announced she had no questions for this witness.

A cross examination that had once been scheduled to last four days was over in about 3 hours. On reflection the defence team may think it was at least 2 hours too long!

Justice Brian Riordan's Crucial Question

Before allowing Bruce Johnston the opportunity to ask his witness further questions, Justice Riordan indicated he wished to speak with the witness. He spoke gingerly as he lead up to his question:  'It has come to my mind that much for the same reasons that you criticize the three expert, from my point of view as the adjudicator in this process, there is an omission in your testimony. I don’t fault you for that. I think it is a function of the questions you were asked to respond to." 

He spoke shortly about the discussion over the past days about survey results and then, unusually, began to read from his computer screen. This is his first question to a witness that has been so obviously prepared in advance. "In the decision I will have to make it would be helpful to have your view as American historiographer at what date if any can it be said that the average American knew or can reasonable be expected to know that the smoking of cigarettes caused [the four lung diseases that are the subject of one of the two class action suits]." He elaborated that he wanted to know "when the average American knew or reasonably should have known. "

Robert Proctor qualified some limitations to his answer and then provided his view that in the 70s and 80s, survey results show that the average American was "more likely than not" to answer a question that they knew about such harms. "There is a scientific consensus in the 50s, an administrative consensus in the 60s .... the third stage is a journalistic or popular consensus." He said he could not be more precise than the "70s and definitely the 80s."

Good-bye, Mr. Proctor

There was a good feeling on the plaintiffs' side of the room as Robert Proctor stepped down from the stand shortly after 10:00 a.m.  Lawyers from various government and class action suits mingled in the corridor afterwards and talked shop. For their common interests, it had been an interesting few days watching what one lawyer described as "the plaintiffs playing chess, while the defence played checkers."

There was no one but us chickens left to watch the afternoon session. A few more exhibits were put on the record (concerning the response of the industry to Health Canada's 1995 report on nicotine levels and Export A advertising). The witness schedule was given a few tweaks. Imperial Tobacco's attempt to lay a subpoena for documents on the next witness, Jeffrey Wigand, was slapped down. 

Perhaps the most noteworthy event of the afternoon was Justice Riordan putting the industry on notice that they were to present their schedule for defence by December 12th.

The trial will adjourn until December 10th. When it comes back, Jeffrey Wigand will testify for the first half of the week, after which motions to allow documents to be filed under Article 2870 will be heard. 

Day 90: Prof. Proctor's guest lecture continues

Before leaving the Palais de Justice yesterday evening, the lawyers defending three "big tobacco" companies in the trial of the Quebec class action suits held a prolonged and unusual corridor huddle.

With Justice Riordan's decisions on two key questions in the air, and with the plaintiffs seemingly able to change their strategy daily, they had a lot to ponder. When the trial re-opened this morning, it was clear that some midnight oil had been burned.

More certainty, but no satisfaction for the defense

The first item of business happened out of court. The plaintiffs had indeed decided to withdraw the part of Mr. Proctor's report under review, and avoid the risk of Justice Riordan ruling to exclude it. (I will never know whether I would have been able to collect on the bottle of wine that was riding on his decision).

The second item of business was a renewed attempt by Suzanne Coté (on behalf of BAT/Imperial Tobacco Canada) to persuade Justice Riordan to block Mr. Proctor from adding any testimony to the trial record that went beyond his written report. (She failed to persuade him, although he gave her the courtesy of leaving the room for a short while before saying so).

So it was not until after 10:00 a.m. that Mr. Proctor was sworn in and Bruce Johnston began his last set of questions for his star witness.

A talking tour of tobacco history

Yesterday, Mr. Johnston had shown that the constraints put on Mr. Proctor's testimony (i.e. being limited to the expert reports of the industry historians) was not a real impediment to getting a wide-ranging perspective from this witness. Today he continued to use questions technically directed at Mr. Proctor's opinions about the industry's expert historians, but actually reviewing key themes in his claims against the companies.

As Mr. Proctor gave a concise review of 60 years' of tobacco industry history, Justice Riordan listened intently. So did the visitors and fans of Mr. Proctor who filled up the seating area located behind the plaintiff's benches. (Today was the first day that lawyers suing tobacco companies outnumbered the lawyers defending tobacco companies in the public gallery.)

From the Plaza Hotel to the Royal Montreal Golf Club

The 1953 meeting of tobacco industry CEOs at New York's Plaza Hotel is a starting point for many students of tobacco industry, but Justice Riordan listened to Robert Proctor's explanation of that meeting as if he was hearing it for the first time. He heard the witness explain this as the beginning of the "formal conspiracy" and the launch of Hill and Knowlton's campaign to push back against the scientific knowledge that smoking caused lung cancer.

Almost three months have passed since the record of a similar Canadian meeting was filed in this case (Exhibit 550). It was at the Royal Montreal Golf Club in August 1963, that Carl Thomson of Hill and Knowlton and TV Hartnett ("chair of the 'we need more research' part of the conspiracy) met with Imperial Tobacco executives to discuss how they would manage the upcoming Conference on Smoking and Health convened by then Minister of Health, Judy LaMarsh. The parallels between this meeting and the the New York Plaza meeting were starkly drawn. "I view this document and statement in this document as evidence of the extension of the American conspiracy into Canada."

Spreading doubt and false beliefs

Robert Proctor explained  how the industry's fears - fear of fewer smokers, fear of falling stock values, fear of litigation - drove their decision-making. He outlined their efforts to spread doubt, and to disseminate denialist publications. He revealed that the industry had found allies in organizations like the American Medical Association, which supported the industry's "we need more  research" message in return for support to suppress medicare and medicaid.

The industry was able to influence the work of other health agencies, Mr. Proctor explained. Some of the scientists who contributed to the 1981 Surgeon General's misguided recommendation on low-tar products "later said they were sorry that they recommended low tar cigarettes because they felt they had been misled."

Not quite True

Exhibit 1237

In January 1968, the men's magazine True had carried an article titled "To smoke or not to smoke: That is still the question." (Exhibit 1237).

Robert Proctor explained this "deeply dishonest" article (which also appeared in National Enquirer) was published without the public knowing about the involvement of the tobacco industry in its development. All but one of the opinions cited in the article were from people who had worked for the tobacco industry.

Curiously this article did not appear on the list of articles assembled on behalf of the tobacco companies by historian David Flaherty. Bruce Johnston noted that it was, however, included in that historian's report prepared for the companies in 1988. The status of that document in this trial will be reviewed by the Court of Appeal in mid-December.

What's a defense counsel to do?

The companies struggled throughout the day to find an effective way of interrupting the testimony.  

Bruce Johnston continued to ask questions within the limits set for him -- "What use could a historian mandated in this file have made of this?" - but the answers from the witness vaulted over such boundaries.

The industry lawyers soon found that their objections to such answers only gave the witness a platform to expand on his replies. Nonetheless, they continued to jump up to make objections that (almost always) went nowhere, and often each company lodged separate objections. (Or, as Justice Riordan wryly put it, "jamais deux sans trois"). 

Doug Mitchell: "This is just not right. This is just asking him to adjectivize the conduct of the tobacco companies." 

Cross Examination 

Late morning, Bruce Johnston asked his last question and Simon Potter (who represents Philip Morris International's Canadian subsidiary) was the first to cross-examine Mr. Proctor.

Mr. Potter is an experienced lawyer, with long experience on the tobacco file (he has represented both Imperial Tobacco and Rothmans, Benson & Hedges). I am told he can be a very effective cross-examiner, and I presume that he knows exactly what he is doing.

But I can't figure out how the answers he drew from Mr. Proctor are helpful to his client. 

In many ways, Mr. Proctor seemed to continue under cross-examination the story that he had begun earlier in the day. He explained why the 'back story' to news was important to an historical perspective, how the industry had recruited historians, and why "common knowledge" was a defective approach to understanding the spread of information. He pointed out the importance of tobacco advertising to the understanding of the harms from smoking.

He shared stories and anecdotes to illustrate his points. He revealed that the Gallup foundation had been appalled by the use of its polling data by the tobacco industry to defend its actions. He used his class-room experiences to describe the different results that come from three different questions - is smoking harmful? - does smoking cause cancer? - are you convinced that smoking is the major cause of cancer? 

Mr. Proctor was able to elaborate on the problems he had with the industry experts, and to point out discrepancies between the secret report produced by David Flaherty for the industry in 1988 and that presented in this trial as his expert opinion. ("Mr. Flaherty says in 1988 that a historian needs to look at history of understanding. There is a big disparity in the two reports.") He criticized their exclusion of addiction and the political power of the industry. "They essentially vanish the industry. It does not appear as an historical agent in their account."

Unlike Monday, when Doug Mitchell's mud-slinging had seemed part of an unpleasant exercise, the occasionally accusatory tone of Mr. Potter's questions seemed to rebound. He tried to suggest that Mr. Proctor had made errors in fact and in judgement in his report on tobacco industry witnesses "Everyone knew but no one had proof: tobacco industry use of medical history expertise in US courts, 1990–2002", but his questions only gave Mr. Proctor the opportunity to explain further the need for transparency and accountability in humanities research, and to expound on the influence of the industry on academe.

Mr. Potter asked Mr. Proctor to reveal his payment as an expert witness, but the witness expressed no concern in providing this financial information. The room was full of very highly paid people (including Mr. Proctor!) but I think this witness was the first person to have been asked to reveal his income from participating in this trial. Given the efforts of the company lawyers to maintain confidentiality of their company's finances in this trial (and their legal struggle to not reveal their lawyers' fees even to their insurers), it seemed a little ironic.

Shortly before the usual ending time, Mr. Potter looked at his list of questions, and asked to quit a little early.

Tomorrow the cross-examination of Mr. Proctor will continue.

Day 89: Mr. Proctor shows he can not only walk a fine line, he can dance on one

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

I would bet that the tobacco industry lawyers felt well prepared as they entered  Montreal's Palais de Justice this morning, ready to defend their clients against the criticisms of Robert Proctor, the historian who is the first expert witness to testify at the Montreal tobacco trial.

Yesterday, they had been given the opportunity to challenge Mr. Proctor's qualifications, which they took as license to assault his reputation, mock his knowledge of Canadian geography and deride his research. From the laughter and verbal backslapping from their cafeteria table at lunch yesterday, it was clear that after a half day of courtroom pugilism, they felt they had left their marks on this witness.

Some of that confidence may have spilled over into today. At the end of the yesterday, Justice Riordan had suggested he was sympathetic to their view that Robert Proctor's mandate to review reports written by their expert witnesses did not permit him to write a counter-narrative. (Until he had ruled on the issue, the judge limited the testimony to the second part of the report, which is a more traditional academic critique.)

The industry lawyers arrived in court this morning armed not only with their confidence, but with several boxes of documents. It looked like they were ready to defend their own expert witnesses against any pre-emptive strikes from Mr. Proctor. They seemed ready also to make good on their threat of last week to pounce on any comments that Mr. Proctor made that were not substantiated by a document already on the trial record. (As Deborah Glendinning told Justice Riordan last Wednesday "We're going to be asking you to disregard any parts of his report where the documents are not properly in evidence. And, quite frankly, we expect we're going to be successful on many of these documents.")

What they had not counted on was a change in game plan on the part of the plaintiffs.

Mr. Proctor's second day 

Yesterday,  Bruce Johnston had asked for Professor Proctor to be qualified in the history of science, in the history of scientific knowledge and controversy, and the history of the cigarette and the cigarette industry. This morning, Justice Riordan mostly agreed to that qualification, but amended the last area of expertise to be  'the American cigarette industry.'

Justice Riordan's decisions had given the witness a broad qualification, but had limited his scope of comments to his views on the reports of Canadian historians David H. Flaherty, Robert J. Perrins, and Jacques Lacoursière. (These gentlemen had been asked to provide reports on when awareness of health risks and addiction became part of the common knowledge of Quebecers, and the public health and government policies).

It soon became clear that Bruce Johnston was not interested in Mr. Proctor's views on what was in the industry's experts' reports, so much as he was interested in what was NOT in those reports. Mr. Proctor was given opportunity after opportunity to comment on the types of information that should have been considered by these historians, but which was not. Bruce Johnston seemed to have caught onto the perfect framework for his examination -- stay on the narrow path set by the judge, but use it to travel through some of the most interesting parts of the trial record and to provide them an historical context.

Mr. Proctor became the first witness to link exhibits from the trial to events in history. His decades of experience as a university lecturer were put to good use. Facing Justice Riordan, he concisely explained many key events in the public health catastrophe of tobacco use -- from the development of a cigarette whose smoke could be inhaled far into the lungs to the infiltration of public health authorities like the Surgeon General's reports by tobacco industry allies.

In his answers, Robert Proctor added details, context and colourful comments ("denialism", "conspiracy" "open controversy" "the cigarette is fraudulent by design") that were occasionally beyond the comfort zone of Justice Riordan and increasingly beyond the tolerance of the defence team. But he got his points across. It was the first time since the opening arguments that a narrative arch had emerged from the thousands of documents.

Doug Mitchell and Simon Potter are both highly theatrical lawyers, but today their outrage did not seem feigned. Their confidence from yesterday seemed to have evaporated. Doug Mitchell frequently got red in the face as he rose to object. "What is Mr. Proctor going to add other than his nice narrative flow and throw some more adjectives on the fire?" "He is just throwing stuff out there - he makes statements like I AM GOD!" 

But an even greater concern to the industry lawyers seemed to be that the work they had done to prepare to knock out the documents used by Mr. Proctor in his original report was for naught. Bruce Johnston had knocked them out himself by selecting an entirely different list of documents. The ones he used were already on the trial record.

The companies tried to make a 180 degree turn on their position that Proctor's sources were unusable. Last Wednesday, Deborah Glendinning had argued that Mr. Proctor could not testify on the documents he had identified in his report, as they had not been properly introduced in the trial.  "Most of the documents that he relies on are not in evidence, it's not proper procedure, it's not the way to go. ...We have a man who - right - wants to come and tell you a big long detailed historical story when none of the documents basically of import that he relies on in his report are properly in the evidence."

Today her protests went the other way. She wanted him to use those documents  "I have another objection for the record – this document was not in Mr. Proctor’s report .... We had 279 documents in his report. We are not even dealing with them." I guess there is no pleasing some people.

A highlight tour, with an expert guide

ITL's surveys on knowledge of harm
were ignored by industry expert witnesses
Exhibit 127

Each document presented to Mr. Proctor was a reminder of the history that had been neglected by the industry historians in their analysis. But it was also a tour around some of the most damaging evidence on the trial record. These included Imperial Tobacco's careful tracking of public understanding of the harms of smoking (Exhibit 127   987.41), its newsletters to employees promoting the benefits of smoking (Exhibit 126A), and its denial of health risks before parliamentary and government reviews (Exhibits 2, 729B).

Through these questions, Mr. Proctor was able to provide the context that he had written in the part of his expert report whose fate was still in the air. This fact was not lost on the industry lawyers, but it didn't seem to faze the judge.

Deborah Glendinning: All of these questions go to the first part of the report. 
Justice Riordan: We are really dealing with the moment of belief – I don’t see how this goes to that.

A late-in-the-day counter move

The defense team was so unprepared for the plaintiff's change in tactics that it took them most of the day to come up with a counter-strategy. At  3:45 p.m, Suzanne Coté asked for and received permission to present jurisprudence in support of limiting Robert Proctor's testimony to his written report. Justice Riordan agreed to hear her arguments, and dismissed Robert Proctor for the remaining half hour of the day.

But before she could present her case, Bruce Johnston revealed another tactical change. The plaintiffs' team was "evaluating the need to examine him on the first part of his report" (i.e. withdrawing the first half of the report) and was close to asking their final questions of this witness. The defense team should be ready for their cross examination tomorrow.

The court adjourned after Suzanne Coté presented her arguments for constraining expert witness testimony. A lot was in the air -- would the plaintiffs save Justice Riordan the effort of preparing a ruling on the first half of the report by their decision to withdraw it? (They promised to send word by 8:00 p.m.). If not, would Justice Riordan rule in favour or against the report?  Will there be further arguments on Suzanne Coté's argument that expert testimony cannot stray from expert reports?

And what surprises will tomorrow bring?

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page 
"Acces direct a l'information/direct access to information" 
You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Day 88: Industry tries hard, but fails to disqualify Robert Proctor

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

Version 1

Of the four days scheduled this week to hear the testimony of science historian, Robert Proctor, the entirety of the first day was spent in tobacco company efforts to persuade Justice Riordan to disqualify this witness.

Despite these efforts, Mr. Proctor will testify tomorrow. When the trial of the Quebec class actions against tobacco companies resumes, he will begin to present information from the second half (pp 75-107) of his expert report, “A History of the Knowledge—and Ignorance—of Harms from Cigarettes in Canada, 1950-2000.”

The decision on whether he will be allowed to present the first half of his report has yet to come.

Version 2

The longer version of the day's events required a thick skin on the part of Professor Proctor, a willingness to play nasty on the part of the industry lawyers and an ability on the part of those in the unusually full observer section to sit and watch prolonged verbal attacks piled on a scholar. This is a rough sport.

The appearance of Mr. Proctor marks an important change in the trial. He is the first witness at this trial who is not a former tobacco industry employee, or otherwise a member of the 'tobacco family'. He is also the first expert witness and likely the shiniest 'star witness' the plaintiffs will produce. Mr. Proctor has a reputation, which means he has a reputation that could be destoyed.

The significance of the day was underscored by the presence in the audience of lawyers from litigation efforts underway in other jurisdictions, as well as an expanded cheering section for both plaintiffs and litigants.

If at first you don't succeed ....

This was the industry's second try at keeping Mr. Proctor out of the trial. The first time was argued in the early fall of 2011, many months before the open trial began. From his decision, it is clear that Justice Riordan was asked last year to consider many of the issues raised today (bias, foreignness, out of area of expertise, etc). Despite losing this first attempt to strike down Mr. Proctor's report, and despite failing to persuade the Court of Appeal to reconsider the ruling, the industry gave it an energetic second attempt again today.

The cart before the horse

One of the many peculiar things about this trial is the back-to-front way in which evidence is presented. One example of this is the fact that Mr. Proctor's mandate as an expert witness was to rebut the testimony of three historians hired by the tobacco companies:  David H. Flaherty, Robert J. Perrins, and Jacques Lacoursière. Yet the contribution of those witnesses is some months off. 

Introducing Mr. Proctor

Robert Proctor

Immediately after the witness was sworn in, Mr. Bruce Johnston introduced  Professor Proctor by going through his curriculum vitae and highlighting his  many accomplishments.

Mr. Proctor explained that he decided to become a historian of science as it allowed him to not narrow his field of research when doing his graduate studies, but instead to retain broad interests. 

These varied interests are reflected in the books he has published in his 25 year career as a university-based researcher. (He is currently a professor at Stanford University in California). The titles are familiar to even casual followers of arts and letters - Racial Hygiene:  Medicine Under the Nazis; Value-Free Science? Purity and Power in Modern Knowledge; Cancer Wars:  How Politics Shapes What We Know and Don't Know About Cancer; and  The Nazi War on Cancer. 

In the past decade, said Mr. Proctor, more than half of his work had addressed tobacco use and tobacco companies. Although his most recent book, Golden Holocaust:  Origins of the Cigarette Catastrophe and the Case for Abolition, was published last year, he was no Johnny-come-lately to the topic of tobacco. Although he had actively worked on the book for a decade, he said it reflected the "sorts of things I had been thinking about for two decades." 

[If you have the patience for a long download, you can access an electronic copy of Golden Holocaust here]

Mr. Proctor is not only an experienced researcher, he is a seasoned trial witness. He said he had testified about tobacco on 30 occasions, and had never failed to be qualified as an expert witness. 

Doug Mitchell's mud-throwing arm

I have observed earlier in this trial that the lawyers working for Japan Tobacco (a team seemingly headed by Guy Pratte from Borden Ladner Gervais) have been the most cordial and constructive among the defendants' legal teams. Today, JTI-Macdonald seemed to have issued a cease-fire in their charm offensive. 

Lawyers from JTI's other firm, Irving Mitchell Kalichman, moved to the front desk. It's not a pretty job, asking questions designed to make experts look inexpert and Mr. Doug Mitchell, who lead the industries' charge, did nothing to make it look any prettier than it is.

There was something schoolyard-like about the style with which Mr. Mitchell worked through a long list of items where he thought Mr. Proctor was vulnerable. Nonetheless, the calm and steady way in which Mr. Proctor replied to the lawyers' high-pitched and overly-modulated insinuations often made the witness sound like the one in control.

What we learned from Mr. Mitchell's questions was that Mr. Proctor was not an expert in many areas related to tobacco use (addiction, marketing, psychology, etc). We also learned that Mr. Proctor is not ashamed of having an "evidence-based bias" or of believing that "it is wrong for an industry to produce a product that kills millions of people."

Mr. Mitchell characterized Mr. Proctor  - "from California" - as a man with no authority to speak of events in Canada. He asked questions that successfully showed the witness' poor command of Canadian or Quebec political history. He also found flaws in the expert report, including referencing and spelling errors.   He showed that Mr. Proctor did not have a perfect memory of the report he wrote 18 months ago and was unable to rhyme off examples of specific events to support some of his statements.

Simon Potter was only one other industry lawyer who participated in the exercise of disqualifying Mr. Proctor. Like Mr. Mitchell, he is a remnant of the old guard of industry lawyers who fought the federal government on advertising restrictions in the 1980s and 1990s. Mr. Potter went over much of the same ground Mr. Mitchell had covered, emphasizing the documents that Mr. Proctor had not accessed (i.e. from government collections) and suggesting that his report, produced in two months, was a rushed job.

Mr. Proctor's resilience to mud

Justice Riordan gave the companies a wide scope in their attempts to discredit Mr. Proctor. While essentially agreeing with one of Mr. Johnston's very few objections that the questions had more to do with the report than the witness' qualifications, he nonetheless allowed the questions to continue. 

Mr. Proctor took the opportunity of hostile questions to put his own views more clearly on the record. Among these were his concerns with the improper historical approach taken by the companies' experts. Assembling news stories about tobacco and health and not giving those clipping collections any historical context was not good historical practice, he said. "You cannot take what someone is told as evidence of what they knew. He invited comparison of trying to measure the Russian experience under communism. "Look how often they were told communism was good" yet it would be wrong to conclude from press coverage in Pravda that the Russian people actually believed that communism was good.

He told the court that the frequent reporting of tobacco and health stories over past decades does not illustrate that the dangers were will known, but rather the opposite. Newspapers don’t often write stories about not "sticking a fork in your eye" because the dangers of doing so are well established, he pointed out "One reason that newspapers kept publishing stories about tobacco use was because the harms were NOT well known." 

He similarly pointed to the importance of the numerous surveys conducted by the industry to establish the actual level of awareness of the harms of smoking. Public knowledge was heterogenous - including "heterogeneity by person, topic, age and by many other things as well." 

Arguments and legal precedents

At 3:00 p.m., Mr. Proctor stepped down from the witness stand and moved to a seat that was located just behind the "bar" that divides lawyers from non-lawyers and was a little ahead of the walkway that demarcates observers from official participants in the trial.  This half-in/half-out position seemed to reflect the limbo of Mr. Proctor's status as he watched the lawyers argue for and against his qualifications. 

Bruce Johnston pointed out that it was "obvious that he is extremely qualified – perhaps uniquely qualified – to perform mandate given to him." He pointed out that the mandate given to Mr. Proctor was not to be an expert in Quebec law or history, but "to look at the work of three historians hired by the defendants in this case and to review that work on the basis of whether or not it was proper historical scholarly work." 

And as for the industry's complaints that the report had been done in only two months "[David] Flaherty had 20 years and never looked at documents."

Justice Riordan asked Mr. Johnston to respond to his cautions from last week,  "I feel he has written two reports – one is the mandate, and the other is something quite different." 

Bruce Johnston explained that the testimony of the industry witnesses provided a connection between the two parts. These historians "are part of a method to try to shutter historians to let them arrive at the conclusions [the industry wants]. They allow themselves to have shutters put on them." If they had consulted the industry documents and assembled a story such as that in the first part of the report "they would have found their own historicity."

Doug Mitchell came armed with a number of court-rulings, recent and not-so recent, that spoke to the value of expert witnesses and the rules that should guide their role in court. He acknowledged that it was unusual to disqualify a witness at this point, but asked that Justice Riordan either do that or as him "to go back and write a report within the scope of his expertise."

Mr. Potter stressed Mr. Proctor's 'bias' as a reason to disqualify him. The court was no place, he said "for people who clothe themselves as historians and allow themselves to talk about anything, or a place for rant and contentious diatribe..."

Justice Riordan's ambivalence?

Justice Riordan hinted at some of his concerns before calling a brief recess at the end of the day. It was possible to have issues with the expert report, but not necessarily with the expert witness, he said. "He is here on a particular role with a limited right and capacity to testify." Whether or not he was morally right, said the judge, was not relevant to the job at hand.

When Justice Riordan returned slightly before 5:00 p.m., he was carrying and reading a document that  looked like it could have been his ruling from last year. His decision was briefly stated and incomplete:

"The second part of the report is admissible. We have allowed testimony to be given on it as well as cross examination – I haven’t changed my mind on what I said on that point.  As for the first portion, back in 2011 I said that I needed to have more information on the 'voir dire.' I would like to think about it a bit."

He instructed the lawyers to prepare their questions to start with the second portion of the expert report and that he would give his decision on the first part later.

Robert Proctor will be on the stand again tomorrow

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page 
"Acces direct a l'information/direct access to information" 
You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.