Thursday, 31 May 2012

Day 35 - World No Tobacco Day

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

During Dr. Andrew Porter's third day on the witness stand at the Montreal class action trials against Canada's tobacco companies, an overarching narrative of his work over 30 years at Imperial Tobacco finally began to take shape.

Many of the technical and linguistic issues that had strained the first two days seemed to have resolved themselves by Thursday and the conversation between lawyer and witness became more coherent and instructive.

These exchanges, and the dozens of documents entered into evidence revealed two major streams of work for Dr.Porter and his science team. The first was finding ways to modify cigarettes to ensure they remained effective drug delivery systems and  the second was searching for ways to modify cigarettes to make them less effective as disease-delivery systems.

As he had for the first two days, Plaintiff lawyer Pierre Boivin led the questions in the morning, focusing on efforts by the scientists to find ways to adapt their products to the real smoking behaviour of their customers and on ITL's flagship harm-reduction initiative, Project Day.

ITL's better smoking machine reveals that smokers compensate.

Pierre Boivin began the morning by asking Dr. Porter about the company's research into ventilated cigarettes and smoker compensation.

Dr. Porter explained that lower tar cigarettes are made principally by adding air to the cigarette through holes in the paper. Such cigarettes give lower levels of tar when smoked by machines using the measurement standards set by the International Standards Organization and the U.S. Federal Trade Commission. (Health Canada with the support of the British Columbia government pioneered a more "realistic" smoking standard in 1999-2001.)

Pierre Boivin introduced documents that suggest that Imperial Tobacco and BAT were among the first to prove how different  the ISO/FTC measures were from actual smoker behaviour. As early as 1975, Imperial Tobacco had developed its own smoking machine to test what smokers actually inhaled -- finding that all tested smokers changed the way they smoked "in order to duplicate his normal cigarette nicotine intake." (Exhibit 389).

By the mid 1980s (at a time when governments were struggling to accept the limitations of a 'low tar' approach) BAT scientists were sharing research showing that puff volumes have risen as inexorably as machine deliveries have declined... human compensation has, for a significant part of the smoking population, negated attempts to reduce tar deliveries. (Exhibit 391).

In other words, at the same time the company was introducing many lower-tar products on the market, it knew that these products were being  'over-smoked'. No evidence that this knowledge was shared with the public or government has yet been produced.

Since smokers compensate anyway, why not make it easier?

A second series of documents introduced by Pierre Boivin showed that the company not only knew that smokers compensated, but researched ways to design cigarettes that made compensation easier.

In the mid 1980s, BAT was promoting the idea to its affiliates that a better idea than selling low-tar cigarettes that smokers didn't like 'would be to produce a cigarette that can be machine smoked at a certain tar band, but which, in human hands, can exceed this tar banding." (Exhibit 391). They called this quality of cheating the machines "elasticity".

Elasticity was one concept that Imperial Tobacco investigated as it applied the results of its (secret) human smoking tests to its product design, recognizing that "elasticity in the product will give the smoker a greater opportunity for compensation." (Exhibit 358 H), If another wave of tar-reduction were to approach, elastic cigarettes would help make low-tar cigarettes agreeable to smokers (because they wouldn't actually be low tar). (Exhibit 358-G.) A number of design features could be used to achieve elasticity (Exhibit 393).

(A shout out here to my colleagues who studied cigarettes on the Canadian market and found that the ones that sold best were indeed the ones that were elastic).

The evolution of machine deliveries from benchmarks to marketing tools is reflected in a research project entered as Exhibit 358 J. Responding to the adoption of an international (ISO) standard of measurement, Imperial decided that rather than risk putting new numbers on their products, they would redesign the cigarettes so that they matched the previous test results. 

ITL's safer cigarette still hasn't seen the light of Day.

Dr. Porter worked on a number of projects aimed at reducing toxic compounds in cigarette smoke, but ITL's major effort in this regard (as other witnesses, like Jean Louis Mercier, have also testified) was Project Day.  

This project began in earnest in the late 1980s, (Exhibit 395, 396, 397 and 398) and apparently continues to this, um, day.  In its initial stages it was concerned with reducing the compounds that caused lung cancer.  It wasn't that other diseases weren't important, said Dr. Porter, but every journey starts with one step and we thought this was the most important step.

Ten years after the project began, a review was conducted of progress to date. (Exhibit 400) Of the three reasons given internally for the project, none dealt directly with the concept of not harming the smoker.

Reason #1: Consumers want it.
Governments, anti's and media have promoted all kinds of statistics talking about chemical components of tobacco combustion creating a consumer demand for a product with less of these undesirable[s]

Reason #2: To beat the competition.
The first one to do it right will therefore impact the industry drastically.

Reason #3: To not be caught unprepared for regulations.
The time table would be determined for us, and lack of preparation could result in having to launch a sub standard product.

Making nicotine more powerful

The plaintiff lawyers have now adopted the pattern 'switching-up' their team in the last part of any witness examination. At lunch time, André Lespérance took over, and brought his gentle approach to the subject of smoke pH and free nicotine.

It was a subject that needed a second airing, for earlier Dr. Porter had  thrown dust on the issue, saying that measuring pH in tobacco smoke was controversial and suggesting it was only done in response to government demands. He had also earlier testified that free nicotine was an undesirable characteristic of tobacco smoke as it made cigarettes seem too strong and resulted in smokers not inhaling as deeply (giving a slower nicotine delivery).

Mr. Lespérance began by asking for an explanation of pH numbers. Dr. Porter began unhelpfully It's the inverse of the log to the base 10 of ... Mr. Lespérance tried again. What would a marketing guy answer? 

Dr. Porter gave a more lawyer-friendly explanation, pointing out that 7 was a neutral solution, and that anything above that was alkaline, and anything below was acidic.

With a clearer understanding of pH numbers in the court, Mr. Lespérance returned to the subject of free-base nicotine, and how that was generated by changing the pH level of smoke. He showed Dr. Porter a  memo written in 1980 by his co-worker (Exhibit 377 A) that discussed Imperial Tobacco's attempts to use alkaline substances in filters to increase the pH. The experiment showed that alkaline filters increased the amount of nicotine in the smoke in ways that suggested higher levels of free nicotine.

Justice Riordan asked the witness: What is the practical effect for the smoker of increasing the alkalinity? Dr. Porter replied: More impact, more irritation - the sensation of a stronger smoke and nicotine will be higher.

Now the value of pH was made clearer to the court.

Okay, so when is epidemiologic evidence acceptable and when is it not?

In the closing part of his testimony, Dr. Porter was asked about his beliefs about the harmfulness of cigarette smoking.  Earlier he had talked openly about carcinogenic, mutagenic and toxic substances in smoke, but when the questions focused on whether cigarettes actually caused cancer, his answers gravitated to the company position.

He wanted to clarify his position, he said. It wasn't enough to have risk factors established, he said, he couldn't agree that there was a causal relationship. As a scientist I have to know the mechanism by which it acts.

Are you saying that it is impossible to conclude scientifically today that smoking causes any disease? 
I  personally don’t know. As a scientist I can't say yes for sure that is it. We don't know which carcinogens in smoke are responsible for cancer, we can't conclude that.

So when you see on cigarette packages to day cigarettes cause cancer, do you agree?
It may do. I don’t personally know. 

Later, under questioning by Imperial Tobacco's lawyer (Deborah Glendinning), he appealed to the need for epidemiology before knowing whether the reductions of toxins in cigarette smoke would actually make cigarettes less harmful.

The company line is hard to forget

On another key issue in the trial - the marketing of an addictive product - Dr. Porter also shaped his responses to align with statements by his former colleagues that 'addiction' is an issue of semantics more than one of brain-chemistry.

Do you agree that smokers are addicted?
It depends on the definition of addiction. When I started smoking, the Surgeon General's report said it was a habit. Twenty years later it said it was an addiciton. I’ll go with whatever the definition was.

When you were at ITL, what were your views?
My views were that I enjoyed smoking and it was hard to give up.

Informing the public

The position of ITL former employees and lawyers continues to suggest that their private communications with government departments satisfies any obligations they may have had to provide information to their customers.

On Wednesday, Dr. Porter had been shown an early (1959) study by BAT which found that the closer a cigarette was smoked to the filter, the greater the amount of  3,4 Benzpyrene was produced. (Exhibit 346) He agreed with the findings - but did smokers know that they inhaled more cancer-causing chemicals if they smoked to the butt?

Do you know if ITL ever told that to its customers?
It published this particular analytical method in one of the tobacco chemists meetings - as far as I remember - in the 60s.  It's call the Tobacco Chemists Research Conference. It's an annual conference that tobacco chemists go to and talk about their work, and it's open to the public.

Do you know if they ever directly informed their customers in any other way?
I don't know. They certainly informed Agriculture Canada because they were at the meeting.

Why Dr. Porter would know the participants' list at a conference that took place while he was a high school student remains a mystery. ITL lawyer Deborah Glendinning did, however, provide a copy of the conference notes from 1963, showing that a John Anderson from Agriculture Canada had attended.  (Exhibit 367A - not yet available).

Under questioning by Ms. Glendinning, Mr. Porter said that Health Canada had regularly been briefed on its research efforts.

Was there a regular dialogue between Imperial Tobacco and Health Canada and Agriculture Canada? Were they kept generally advised on ITL's attempts [to reduce toxins in cigarettes]
Oh yes. Absolutely.

Was this information flow fairly regular?

And has Health Canada been briefed on Project Day?
Several times.

Was Health Canada aware of efforts of Imperial Tobacco to reduce Tobacco Specific Nitrosamines?
Yes, they were.

With respect to the reductions achieved, has health Canada ever accepted this as being as safer?
Not to my knowledge.

There you have it. If you are a smoker and want to know more about the safety of the products you buy, you only have to register at the Tobacco Science Research Conference, or lobby to have the trade-secret provisions of the Access to Information Law rescinded.

Only to return ...

In the end, Dr. Porter's testimony did not finish today.  By the time the industry lawyers had conducted their short cross-examination (during which he affirmed that Canadian cigarettes had no additives, that no elastic cigarettes had been put on the market, and that a low tar cigarette could not be 'over-smoked' to give higher deliveries than its parent brand), it was nearing 5 o'clock.  The lawyer for the federal government, Mr. Maurice Regnier, said that he would not be able to complete his questions in a few minutes, and Dr. Porter was scheduled to return on June 11th.

The court does not sit on Fridays.  On Monday June 4th, the current president of Imperial Tobacco, Marie Polet, will appear.  This will be one of her first public appearances in Canada since her appointment to the president's office of Canada's largest tobacco company last July.

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:

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.

Wednesday, 30 May 2012

Day 34 - Science class with Dr. Porter

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

If your eyes glaze over before you reach the end of this sentence, you will know that I have accurately captured the atmosphere today in the Montreal courtroom where Canadian tobacco companies are facing claims for $27 billion in damages.

Still with me?

Today was the second day of testimony for Dr. Andrew Porter, who worked as a chemist in Imperial Tobacco Canada's laboratories for about 30 years, starting in 1977. It felt like a very long day.

Yes, Virginia, tobacco smoke is toxic

During the first day of his testimony, Dr. Porter had made several references to the "Hoffmann list" of harmful compounds in tobacco smoke, developed by pioneering tobacco researcher Dr. Dietrich Hoffmann. Today, plaintiff lawyer Pierre Boivin began his questioning by producing a 1997 memo written by Dr. Porter's former boss, Dr. Stewart Massey, about the Hoffmann list (Exhibit 364). He started to ask Dr. Porter to provide details on the chemicals on the list, but when he arrived at the second substance (hydrogen cyanide) he was interrupted from the bench.

The court had been in session for only 10 minutes, and already the Judge was impatient.

Justice Riordan: You aren’t going to go through this list one by one!  Couldn’t you just ask him to say which ones aren’t carcinogenic?

Pierre Boivin: Okay, your honour. Dr. Porter, out of these chemicals, which ones weren't toxic or carcinogenic?

Dr. Porter. They were all known to be toxic or carcinogenic.

Justice Riordan.  You just shortened the trial by a week.

This exchange and the laughter that followed revealed the challenging nature of bringing science into the court room. Much easier to just accept that there are a week's worth of harmful chemicals in cigarette smoke than to delve into the details of a subject matter about which most in the room have little knowledge, and maybe even less interest.

Andrew Porter is no David Suzuki

If the scientific research conducted by Imperial Tobacco and its research partner/parent company, British American Tobacco, is in anyway interesting, you would not have known it from Dr. Porter's testimony.

It is not fair to expect a witness who has been summoned by lawyers seeking $27 billion from the hide of his former employer to make it easy to follow the company's secret research. But the content under discussion today is most certainly more riveting and important than Dr. Porter's trailing voice, mumbled replies, and overly complicated explanations would suggest.  (Would you have thought, for example, to define 'urea crystals' as he did -- an excretory product from the mammalian system in crystalline form ?)

This witness clearly was not going to volunteer to 'connect the dots' to produce a picture of his work of 30 years. Nonetheless, Mr. Boivin was able to use his presence in the court to put many important dots on the record.

More than 30 scientific documents were entered into evidence today, and later these may be used to give a clearer story of the role ITL's research team played in Quebec's tobacco epidemic. For tonight, just a sampling of the variety of material presented to the court.

Canadian cigarette additives: the K-numbers

Exhibit 374 -
Proprietary Additives
A previously unknown list which came to light today was the K-code of  additives kept by Imperial Tobacco.  The coding was used to maintain trade-secrecy. The suggestion by ITL that it is no longer in the additive business is weakened by the fact that it continues to claim trade secrecy over these numbers - much of Exhibit 372 was redacted.  Another list from 1984 annotated the use of more than 10 common additives in fine-cut tobacco, and referenced a further list of 53 "proprietary additives." (Exhibit 374)

Some of Dr. Porters research on these additives was also presented (Exhibits 378, 379, 380).

A more sensory cigarette.

BAT's web-site profiles research on making cigarettes less toxic and doesn't mention any research done to make cigarettes easier to smoke, more addictive or cheaper.  But the research strategy documents presented today suggest that the company had a research directive to make the "sensory" experience of smoking more pleasurable. (Exhibits 382, 381A).

To this end, BAT's researchers in Germany were looking at adding analgesics to make smoke less irritating, and its Montreal researchers were anticipating that reducing tar while increasing nicotine would require additives to keep cigarettes from being too irritating. (Exhibit 386).

Improving nicotine.

Tobacco trials in the U.S. were a key development in public knowledge about tobacco science and the use of ammonia and other means to enhance the effect of nicotine (see, for example, Hurt and Stevenson). When the "secret of Marlboro" was exposed, the world learned that ammonia was used to produce 'free-base' nicotine (a nicotine molecule with fewer bits hanging on to it giving it a faster drug effect).

Dr. Porter repeatedly dismissed the idea that unprotonated ('free-base') nicotine was a desirable cigarette characteristic. My understanding is that free base nicotine makes the cigarette very irritating. ... When you have free base, more is inhaled in the upper part than the lower part and takes longer to get to the central nervous system.

In research notes from the mid 80s, however, he wrote of interest in BAT in using free-base nicotine to improve "smoking pleasure and satisfaction" (Exhibit 358B). In 1985, BAT was looking at free nicotine to modify the sensory effects of smoking and ITL was looking at many ways to boost nicotine (Exhibit 377).

On many of the nicotine-related questions, Dr. Porter countered popular understandings. Smokers did not adjust their smoking to ensure a steady nicotine level, he said, but relied on all sorts of other cues and behavioural issues - like whether they smoked alone or in groups.  Again, his testimony was somewhat at odds with the documents from his department, which spoke of smokers' maintaining nicotine blood levels. (Exhibit 385).

He did, however, agree with the sentiment that "to benefit the industry, nicotine should be promoted as a useful and versatile drug" (although he said he would have phrased it differently).

Turns out smokers compensate after all

One of the areas of research expertise at the ITL laboratory in Montreal was smoker behaviour. They pioneered research methods to measure how smokers actually smoked. These methods allowed the industry to know years before government that smokers were defeating the design of low-tar cigarettes by inhaling more deeply and more often than they had on higher tar cigarettes.

Documents filed traced the decades' old knowledge at Imperial Tobacco that smokers of low-tar cigarettes would get more tar and nicotine from the cigarette than the machine-smoking values on the package suggested. Dr. Porter authored a review of ITL's research in this area from 1978 to 1994. (Exhibit 388).

Hidden truths

Each of the witnesses from Imperial Tobacco has provided their own flavour to this trial. Some have forgotten the answers, some have skated around the answers, some have misunderstood the questions. Dr. Porter seems to have a talent to make very revealing answers sound uninteresting.

Tomorrow is expected to be his last day at this trial.

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:

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.

Tuesday, 29 May 2012

Day 33 - The Science Guy

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

Today the world of tobacco science and the world of law entered each other's orbits when a former scientist for Imperial Tobacco Canada Ltd., Dr. Andrew Porter, testified at the class-action trial against Canada's three large tobacco companies.

One tobacco scientist too many

Science class calls for tutors - and new faces were seen on the benches of the legal teams and in the audience. Among the new faces was one familiar to many in the room, Dr. Murray Kaiserman, who has recently retired from his position as director of research at Health Canada's tobacco unit. He was there to assist the federal government in its defense against the claims by Imperial Tobacco and other companies.

Dr. Kaiserman, however, has more roles in this trial than being an advisor to the Attorney General. The tobacco companies have signalled that they intend to call him as a fact witness - and fact witnesses are not allowed to attend the trial before they come to testify.

For that reason, Mr. Jean-Francois Lehoux (who represents RBH) objected to the presence of Dr. Kaiserman, saying that the principle of witness exclusion should apply equally to all parties. The lawyer for the federal government, Maurice Regnier, was unable to persuade Judge Riordan that the complex nature of the case justified the exemption that was applied in precedents he cited. Calling on Mr. Regnier to find alternative technical support, Justice Riordan requested Dr. Kaiserman to leave.

(This was a victory for the tobacco companies. Dr. Kaiserman is generous with his insights and there are only a handful of people working in public health with his expertise in tobacco science.).

The scientist as witness

Dr. Andrew Porter is expected to testify for three days, and much of this first day felt like an introduction to the structure of scientific work at Imperial Tobacco and BAT, the scope of their research interests and the tobacco world behind the laboratory doors.

The only other scientist to have testified in a Canadian tobacco trial was Dr. Stewart Massey who helped defend Imperial Tobacco against a small claims court case filed by Joseph Battaglia related to light cigarettes.

Dr. Porter is a trim and healthy looking man, who gives the impression of being a scientist of the tidy, methodical sort. He was raised in Britain, where he graduated with a masters in spectroscopy in 1971 before coming to McGill to do his doctorate in chemistry. Forty years in Canada have failed to remove his pronounced British accent.

He joined Imperial Tobacco in 1977, completing his PhD three years later. Seven years after joining the company, he was promoted to principal research scientist, a position he held until 2005, when he was seconded briefly to BAT to work on harm reduction research.  He retired in 2007, but works as a consultant to the company on scientific issues.

It was plaintiff lawyer Pierre Boivin who conducted the questions throughout the day. Despite the many differences between them, the lawyer and the witness worked constructively and politely together, and provided a significant quantity of information to the court.

BAT's global tobacco science footprint

The research capacity at BAT and Imperial Tobacco that was described to the court today is truly impressive. Dr. Porter had a staff of 12 who conducted research in the areas of biology, toxicology, smoking behaviour, analytic chemistry, physical chemistry among others. Above him were two other senior scientists - Dr. Massey and Dr. Dunn.  Yet even this research team was small in comparison with the extensive BAT group research unit. (Exhibit 356)

Although Dr. Porter worked several thousand miles from the BAT laboratory in Southampton, he was familiar with many of the scientists there. Scientific meetings were held at least once a year, he said, and there was regular contact as issues arose. A formal arrangement between Imperial Tobacco and British American Tobacco apportioned costs and shared research assignments.

Document destruction / retention

The request by BAT to have its scientific reports removed from ITL's library has been the subject of many questions (and non-answers) over the trial, as the plaintiffs have sought to establish the chain of events that led to over 2,000 documents being repatriated to BAT headquarters. (Exhibit 319J). Of particular interest is the  role that litigation-nervous lawyers played in those events. Today's testimony provided further light on that chapter.

Do you know why there was a change in policy [about document retention]?
No I don’t

Do you know who was in charge?
It came from senior management. We were informed by Dr. Dunn.

You were not curious to know why?
I had some curiosity, yes

What did you do to find out?
I asked Dr. Massey and Dr. Dunn, and frankly I didn’t really understand it. They gave me an answer, but I didn’t understand it. I can't remember what their answer was.

Do you know if it was because of litigation purposes that the documents had to be sent to England?
I don’t know if that was the reason.

Was it one of the reasons given by Dr. Massey?
It was mentioned during the discussion.

Is publication in a scientific journal the same as informing the public?

One of the areas of expertise that Imperial Tobacco's labs offered to the BAT research system was work on a more simple test to assess the mutagenicity (an early step in cancer) of their products. The method they focused considerable energy on was the Ames test, which was invented in the early 1970s.

Mutagenic measures
on smoke from 6
 Canadian cigarette brands 
By 1981, Imperial Tobacco had assessed that the Ames test was an effective and efficient way to measure and compare the damage caused to genetic material by cigarette smoke. (Exhibit 357). This conclusion was based on tests they conducted on various types of cigarettes and various types of tobacco. All of the tests had been "positive" - meaning that all showed the potential to cause genetic damage and lead to cancer.

Do you know if ITL ever advised its customers that all its cigarettes tested positive on the Ames test? the witness was asked. We published – we were the first company to publish the results of tests in 1975 in the Mutation Research journal, so it was known, certainly.

What journal? 
The Mutation Research Journal.

Except for that publication, did you advise in any way or shape the results of your Ames tests?
We certainly presented at conferences and obviously senior management have seen these results, and as far as I know Health Canada was shown as well.

ITL didn’t consider telling all of its customers?
You have to put it in perspective, it can show you a potential, but it doesn’t necessarily mean it will cause you cancer. .. To warn someone on something you are not sure of yourself would be premature.

You didn’t consider it important for your customers to know that the result?
I think that publishing in a journal is tantamount to informing the public. My job is in a scientific area. We make sure that it goes into scientific community . I am not responsible for public affairs.

Your job was not to make sure that your ITL customers were informed that all the tests showed [that your cigarettes made mutagenic smoke]?

Whose job was it?
I have no idea.

In a similar vein, Dr. Porter reported that no effort had been taken by Imperial Tobacco to communicate wit consumers about its knowledge of cancer-causing chemicals that are unique to tobacco smoke (tobacco-specific nitrosamines), (Exhibit 360)

Evidence-based systems

Both science and law rely on evidence to reach conclusions, but the culture clash between the evidentiary approaches was very apparent today.

The collaborative arrangement between BAT and Imperial Tobacco meant that the Canadian branch plant often relied on the headquarters for key scientific research findings (this, after all, is what gave rise to the "heated" discussions within ITL about removing BAT documents from the premises). There were many subject areas that the Canadian scientists were not directly involved in, even though they applied the learnings to their work and even though the results influenced the cigarettes that were smoked in Canada.

But scientific reports -- or reports of meetings between scientists that lead to scientific reports -- are only acceptable as evidence in this trial if they can meet the evidentiary tests of Canadian courts.  Justice Riordan, in his May 2 and May 17 rulings, has reduced the burden of those tests considerably. But two documents the plaintiffs tried to put on the trial record today were rejected, as they neither came from Imperial Tobacco nor did they have "an appropriate witness" to validate them. Because of the hub-and-spoke structure of BAT's research function, this is a problem that is likely to reoccur.

In such circumstances, the tobacco lawyers who insisted that minutes of scientific meetings be re-drafted or not circulated to countries where litigation was a concern will have been rewarded for those efforts. Important documents may be excluded from this trial. Another victory today for the tobacco companies.

Can we go now?

This first day of tobacco science required extra effort, and the day was marked by struggles with technology, polysyllabic chemical names, exhibit numbering and microphone management.

By mid-afternoon, despite the instructive and at times very revealing testimony of Dr. Porter, it was clear that that minds were wandering and the clock was being watched.  At  4:30, Justice Riordan pushed for Pierre Boivin to wrap up. "You must be exhausted," he said. "I am."

Science class with Dr. Porter resumes 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:

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.

Monday, 28 May 2012

Day 32 - Reluctant and dissonant witnesses

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

The ten-day recess of the Montreal tobacco trials ended this morning at 9:30 when the regular crowd of lawyers, clients, court-workers and onlookers stood as Justice Brian Riordan entered the courtroom.

After a glorious week of early summer, the return to the windowless court environment may have felt particularly harsh to the first witness. Almost two months had passed since Imperial Tobacco Canada's former corporate counsel and vice president, Mr. Roger Ackman's first reluctant appearance. Resistance to his subpoena had gone as far as a request to the Court of Appeal, and his manner today suggested he was equally unenthusiastic to provide information to the court.

There were two reasons Mr. Ackman had been recalled:  Exhibit 102A and Exhibit 102B.

Roger Ackman in 1994
These two documents were provided to the plaintiffs by Imperial Tobacco only after Justice Riordan intervened. It is not surprising that there was some reluctance to put them on the court record - they tell two sides of a "heated" dispute between lawyer (Mr. Ackman) and scientist (Mr. Dunn) over the removal of ITL's scientific reports from Canada at the request of BAT.

Today, plaintiff-side lawyer Gordon Kugler wanted to ask Mr. Ackman more about the events that lead to the engagement of the Monitor Corporation / Roger Martin to mediate between the two quarelling vice-presidents. He also wanted to know what was contained on the 5 missing pages from Mr. Ackman's fax to Mr. Martin.

In a small feeble voice, Mr. Ackman gave short feeble replies. "I have no idea." "I have no recollection" "I have no recollection of seeing this document." "I don't recall Roger Martin." "I do not recall writing this memo."

Whether it was Mr. Ackman's disputed feeble state that was behind his inability to reply, or whether there was a less acceptable explanation may never be known. Recognizing, perhaps, that there was no point in questioning a dead horse, Mr. Kugler took no more than 15 minutes before announcing he had nothing mroe to ask and allowing Mr. Ackman to make his second exit from this trial.

There are other witnesses who may be able to throw some light on these events - the recipients of the memos. The plaintiffs reported that they were trying to subpoena the records from the Monitor Corporation, which is head-quartered in the United States.

"Is there anything I can do to help?" asked Justice Riordan and then inquired whether Mr. Roger Martin had been located. Yes, he was told. We have found him, but he doesn't want to talk to us.

What was not put on the court record is that this is the same Mr. Roger Martin who is now Dean of the Rotman School of Management at the University of Toronto.

The dissonant witness

Before the clock struck ten, the second witness had been sworn in.

Mr. Jacques Woods worked in various marketing positions at Imperial Tobacco for the first 10 years of his professional career, before leaving the company in 1984 at the age of 34.

He is now 62, but appears younger. His baby-face,  large frame, gentle manner and somewhat old-fashioned affect lend him the appearance of a boy-scout leader from a simpler era.

Plaintiff lawyer Bruce Johnston took a different approach in his first questions to Mr. Woods than he has with previous witnesses. Rather than go through the customary establishing questions, he leapt to the core of the issues he wanted Mr. Woods to address: "While you were employed, did Imperial Tobacco target youth in its advertising?"

Justice Riordan may have thought this was an oversight, and he suggested politely that it might be useful to get Mr. Woods background on the record.  "I'll get to that, your honour," said Mr. Johnston then returned to  press questions about the company's policies with respect to marketing to youth, and the way they were communicated to staff.

Clearly, Mr. Woods had also expected to be given a chance to say something about himself before answering such pointed questions. He inserted his own introductory framing to his replies.
I  joined Imperial Tobacco right after college. I joined at 24  year old in 1974. I was quite young and low on the totem pole, so I wouldn't know exactly what the policies of the organization was. All I knew was related to my function and context... Remember my age. I was on a learning curve." 
He wasted little time before telling the court that he didn't smoke, and that he worked for Imperial Tobacco as he might have for WonderBra or Dr. Ballards (pet food company) or other products that he did not use himself. He had three sons, he said proudly, suggesting that this explained why he would not have agreed to work for a company that marketed cigarettes to youth.

If he sounded like he was excusing his choice in working for Imperial Tobacco, he did not extend any shame towards the company. Throughout the day he spoke respectfully - at times admiringly - of those who were higher on the totem pole. He referred frequently to the changed context after so many decades, but even then made no direct criticisms of the policies or practices of a company he had left after only 10 years employment.

In response to Mr. Wood's clear statement that neither he nor the company had directed marketing to youth, Mr. Johnston pointed to several documents that suggested a very different practice, including some Mr. Woods had authored:
  • Exhibit 347 - a letter from the Creative Research Group, proposing research on campaigns, which notes "du  Maurier has successfully extended its franchise and broadened it to include more younger smokers."
    (The wording of that was a little strange, said Mr. Woods).
  • Exhibit 303 - the first of the CRY series, which had worked with focus groups of teenagers aged 15-18 and used this research to develop guidelines on marketing to youth.
    (I think most of the elements there were probably used as guidelines in further communications, said Mr. Woods)
  • Exhibit 142B - Project 16 which, in its many observations about young smokers found that "serious attempts to learn to smoke occur between ages 12 and 13."
    (When asked if this caused him personal concern, Mr. Woods replied that "Not a concern. A fact. A reality. This is the life we live in." He said he was not aware of any discussions at Imperial Tobacco of what they could do to prevent youth smoking.)
  • Exhibit 350 - a questionnaire on advertising recall, where Mr. Woods had extended the proposed age categories to include 15-19 year olds
    ("If I had been in the company longer, I would have written 'young adults'", Mr. Woods explained)
  • Exhibit 351 - a proposal from Mr. Woods for research to increase acceptance of Player's Filter cigarettes among young people.
  • Exhibit 140 - where the research guidelines had been amended to include participants as  young as 15 (Mr. Woods wasn't sure that the handwritten annotation to reduce the age had been made by him).

And then there were two?

The trial has already received documents prepared within the strategic planning group (Exhibit 266267314), but this was the first occasion to question a member of that team.  The three staff people in this "Think Function" were Jacques Woods, Bob Bexon and Maurice Bédard, and they reported to Wayne Knox ("one of the smartest people I knew" according to Mr. Woods).

Bruce Johnston showed Mr. Woods about a memo Mr. Bexon wrote to Wayne Knox in 1984, a few months after Mr. Woods had left the company (Exhibit 267).  It proposed a rather cynical strategy to keep smoking rates high by changing public attitudes and engaging in activities to encourage young people to smoke. He asked the witness and whether it reflected his own understanding of the marketing situation.

It says more about the way Bob Bexon thought.

You worked closely with him for 4 years, was that the sort of thing he expressed?
 He was very different in his interpretation - with the same facts, same logic, he would write differently. He read the reality different

He went on to be president?
Yeah, he did it. I left and did something else.

Bob Bexon, who left Imperial Tobacco to work for its American sister-company (Brown and Williamson) and returned as president around the time these law suits were initiated was killed in a bicycle accident in 2008. Mr. Knox's whereabouts have been unknown (some have thought he also died).  So when Mr. Woods stated that he still had a high regard for Wayne Knox, Mr. Johnston quickly wanted to know more about this other potential witness.

Mr. Knox is still alive? Yes.

Do you know wher he lives? Jacques Woods looked over at the Imperial Tobacco lawyers before answering "Somewhere in Thailand."

Horse sense

Several times over his testimony, Mr. Woods volunteered or was asked about the use of horses in cigarette advertisements.  Project 16 (Exhibit 142B) had found that the Players' horse ad was considered effective with young people as it showed "simple, honest things."  Mr. Woods had earlier recognized the power of these animals for marketing cigarettes, proposing research on  "the appeal of 'horse' subjects as well as the appeal and meaning of horses in general." (Exhibit 354)

Horses, he told the court, were embedded in the promotion of the world's most popular cigarettes, Marlboro. He said that if they weren't used in Canada on cigarette ads, it wasn't because of concerns that they were popular with youth, but because of trademark concerns.

The horses in Marlboro and Players ads ride in wild open spaces - they are "uninhibited and free" as teenagers told the research firms.   At several points today, Mr. Woods sounded like a horse of a different colour -- a  work-horse whose blinkers kept him focused only on what the rider wanted him to see, unaware of the full picture around him.

The thespian judge

Amateur theatrics are part of Justice Riordan past, which may have contributed to his choosing a quote from Moliere's Tartuffe to set the scene for his ruling to dismiss claims of solicitor-client privilege over research commissioned by the industry and conducted by history professor David Flaherty.

Avant que de parler prenez-moi ce mouchoir. ..
Couvrez ce sein que je ne saurais voir:
Par de pareils objets les âmes sont blessées,
Et cela fait venir de coupables pensées.

(Before you speak, pray take this handkerchief...
Cover up that bosom, which I can’t
Endure to look on. Things like that offend
Our souls, and fill our minds with sinful thoughts.)

In his decision, Justice Riordan reflects on the widespread availability of the document that Imperial Tobacco wanted excluded from the trial. Would  it  not be absurd, and tend to make a mockery of the process, to expect the Court to turn its head in falsely pious modesty and exclaim cachez-moi ce document que je ne saurais voir, while everyone else in  the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries? He sees no alternative but to dismiss the objection and  peek under the handkerchief.

It's safe to say that Moliere is a little more read in Montreal than in London, New York or Tokyo where the parent companies of the Canadian tobacco firms that are on trial are located. So perhaps the message contained in his choice of the uber-hypocrite Tartuffe to represent the company's position will sail over a few legal heads in those cities.

But the reference will not be lost on his colleagues at Montreal's Court of Appeal, to which this like so many of his rulings is destined to be referred.

Although there are more questions for Jacques Woods, he will not be appearing tomorrow. Mr. Andrew Porter, formerly of Imperial Tobacco's research department, is scheduled to testify.

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:

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.

Thursday, 17 May 2012

Day 31 - Hardball

The trial of the Montreal class action suits has recessed from May 18 - 27.  It will resume on May 28th, when former ITL legal counsel, Roger Ackman, returns to the witness stand.

This blog is written from the corridor while a secret hearing takes place in courtroom 17.09. Under debate is  whether Imperial Tobacco should be able to prevent survey data on smoker behaviour over 25 years (and seven other studies) from becoming public. 

No time for the blow-by-blow on why the meeting is secret?  Skip down to the end of the post to get the score...

When the 'gloves come off' in a hockey game, you know that that the fisticuffs that follow are unlikely to affect the score. By contrast, it seems that when the 'legal robes come off' in these Quebec class action suits against Big Tobacco, the fight that follows may help determine who wins the game.

Today was set aside for one of those no-witnesses-no-robes skirmishes, with the outcome to decide whether or not eight Imperial Tobacco documents that will be entered as exhibits in the trial would be kept confidential and under seal.

Team substitutions are allowed in this sport, and two new players for Imperial Tobacco appeared on the field. Silvana Conte (from the Montreal office of Osler, Hoskin & Harcourt) came armed with legal arguments and Nancy Roberts (another unilingual anglophone from the firm's Toronto office) brought close to her body-weight in documents flagged with specific concerns. 

The front benches of the other companies had emptied out. Today's fight belonged to the Osler women. (Maybe it's the bravado, maybe it's the big hair -- do you think they grew up on "Charlie's Angels"?)

Secrets within secrets 

Imperial's team came not only to win the fight, but to make sure that it happened in secret. They wanted  Justice Brian Riordan to declare the hearing in camera. 

There was no doubting their resolve. From the back of the room, it is often hard to follow what is said by the lawyers and judge. By contrast, when Ms. Conté spoke, not only was every word clearly heard, but so was the we-don't-back-down tone in which her argument was presented.

The very purpose of the motion of the sealing order is to protect confidentiality of the marketing and business plans that are the subject of the motion. Discussing the issue in public was "not fair" to Imperial Tobacco, as their right to a fair hearing was greater in this instance than the open court principle.

André Lespérance did not agree to the idea of an in camera session.  He said that the approach of Imperial Tobacco was "draconian" and disproportionate to the nature or volume of confidential document in question.  He suggested that other options were available and that the confidentiality could be maintained without excluding the public. "You don't have to say things out loud ... you can just refer to the written text."

Justice Riordan was clearly uncomfortable with the idea of closing the doors to the public. He asked Imperial Tobacco to show where they would have to divulge the contents of the documents. Instead of replying to his question, Silvana Conté appealed to the principle of their "right to go in depth". The Judge asked again for specific areas where open hearing would impede their ability to present their case. Again, he did not get an answer.  

For the first time since this trial began, a lawyer was overtly challenging the judge.  The burden is not on us to have to show us what the argument is. ... We should not have our hands tied and run the risk of inadvertently publicizing what is in the documents. You are asking us to limit our rights. Asking this of us is unfair.  

Justice Riordan asked again - and more firmly - for a specific example of where this might cause a problem. From the side of the room, her colleague Nancy Roberts, whose job it was to provide detailed information on why the documents should remain confdiential stood. In a self-deprecating tone, she said she might forget herself and inadvertently let information slip and injure her client.

Justice Riordan looked to André Lespérance for a response to these concerns and received the suggestion that a publication ban could be put on the proceedings. "Are there media in the room?" asked the judge, but hearing that bloggers aren't journalists, that option seemed moot. He paused, and then gave his decision

I am refusing this request at this point – it will proceed in public.  If there comes a moment when it is impossible to go further, I will reconsider the position.  You have not convinced me of the necessity of  going in camera.

Sylvana Conte showed she is a "lady not for turning" and did not miss a beat in playing her next card.
Then I am asking you to suspend the hearing. We will seek leave to appeal.

Justice Riordan looked at the plaintiffs' bench and asked wryly -  Are you surprised?

Very surprised. Can you give us five minutes? The session suspended while lawyers huddled to consider their options. Refusing to go in camera meant a risk of further delays and more punctuations in the presentation of their case about marketing. But when the court reconvened after the lawyers' huddle, Mr. Lespérance also stood firm. We have not changed our position. 

The next move was Justice Riordan's. He too stood his ground. I find myself in a very difficult position. The case has been going on for 14 years ... to go into a Court of Appeal on a point such as the one we have before us which is merely introductory to an issue that will undoubtedly go to the Court of Appeal however it is decided doesn’t seem to be in the interests of the administration of justice.

As I said, the lawyers from ITL have not shown in any real way why it is necessary to have an in camera hearing in this case on this issue. The fact that they might stumble and make a mistake is not sufficient reason to set aside such an important rule as open hearings.  I also said that if in the course of the hearing that I would be willing to reconsider – I need to know in a concrete way if it is a problem or not. 

My ruling was that for the moment I was ordering an open hearing and would reconsider should the need arise.  We will proceed immediately and we will get through at least the initial part.  Maitre Roberts will begin and if she can show me that it is necessary that the meeting be closed I will go  there.

Ms. Conté stll held ground. She said she had called for authorities to support her request for a suspension, but before she could ask for time for those authorities to arrive, Justice Riordan cut her off. You have already admitted that your part is not in camera. So go on. Ms. Conté stared back at him, not moving to get her notes to present the argument he was waiting to hear. I have decided that your portion won't be in camera. PLEASE COMMENCE!

The ITL team conferred briefly, she picked up her notes and began to present her case. 

The main precedent for these issues is, by inference from the discussions in the court today, the ruling of the Supreme Court of Canada on the request for confidentiality of AECL documents related to its subsidized sale of CANDU reactors to China. In that decision, as Ms. Conté presented it, the familiar principles of necessity and proportionality were applied. 

The contested ITL documents met the necessity test of that ruling, she said, not only because the risk of disclosure was real, but also because there was a public interest in keeping the documents confidential.  She appealed to the principles of commercial interest and the spirit of the Competition Act in promoting and encouraging competition. 

(She did not refer to other federal statutes, such as the Tobacco Act, that might have suggested a public interest lay in understanding how smokers respond to changes in regulations. Disappointingly, the federal government, which might be expected to support the public interest, had no objection to Imperial's studies remaining confidential and did not argue that the discussion about them be held in open court. Hopefully Justice Riordan will consider the public interest more broadly when he reviews these documents).

When she turned to the issue of proportionality, Justice Riordan pushed her repeatedly to show how they were looking for a minimum application of confidentiality. "You are not asking for a minimum intrustion you are asking for maximum protection....  what more could you ask for than what you are already asking for?  For the first time, Ms. Conte looked stumped.  Ummmmm.. that’s a good question.

Although she had finished the legal arguments, Ms. Conté would not cede the floor to her colleague, Nancy Roberts, who was expected to provide details of how these issues should be applied to the documents in question. Ms. Conté interrupted and argued with the judge in a way that has not yet been seen in this trial.

Perhaps watching her colleague and feeling the rising tension prompted Nancy Roberts to try to lighten the tone. Finally getting the floor, she apologized in advance for any "Ontarianisms" she might introduce. She joked about her age and the weight of the material she had brought. She laughed about her failing memory. She thanked the Judge for permission to be in his courtroom. When he asked a question, she thanked him for the interruption. Even the larding on of these pleasantries did not reduce the tension in the room.

Ms. Roberts task was to provide reasons why each of the 8 documents should be kept confidential' The first one she addressed was the 30,000 pages of data collected under the monthly surveys (Continuous Market Assessment or CMA). This survey was a key to ITL's competitive success, she said.

As far as I am aware none of ITCan's competitors conduct or commission research that contains as much or as detailed information as is in the CMA.  ...ITCAN uses historical CMA information to forecast the likely impact of changes in the marketing place and regulatory environment.

If it occurred to her that keeping confidential information on the impact of health legislation on smokers' behaviour was more suggestive of her client being in competition with health ministries than with other tobacco companies, she didn't let on.

Having finished with this document, Ms. Roberts received a whispered message from Ms. Conté. Oh dear! just as she feared, she had inadvertently let confidential information slip... This was the cue for Ms. Conté to ask again for an in camera hearing. (André Lespérance pointed out rightly that nothing had been said that was not already on the public record.)  

But Justice Riordan provided reasons of his own for changing the rules of this round. For me to appreciate what it is confidential or not I would like to be able to ask specific questions,  i.e. why a certain line is confidential. I find myself impeded... I am having trouble doing  my job because I cannot ask specific questions

At noon, the session went in camera.  The only two people required to leave the room were we bloggers.


Looking for the score?  Me too.  At 4:30 the court adjourned -- Justice Riordan's decision won't be known until he decides to make it, um, public.

Wednesday, 16 May 2012

Day 30 - The wrong witness

There are new obstacles between the front door of the Palais de Justice and the court-room where the Montreal class action tobacco suits are now in their eighth week of trial.

Montreal is gripped with protests by post-secondary students, and a security presence is now at all entrances. All but lawyers must present their bags for inspection. This is also the season of school excursions, and a mini trade-fair has sprung up in the foyer to introduce middle-school students to the justice system.

That is to say, the Palais de Justice is at once welcoming to outsiders and uncomfortable with them. A similar  ambivalence may have contributed to the frustration when Carol Bizzarro testified this morning.

Not so much a directing mind, as mindlessly following direction

During the time that Imperial Tobacco implemented its document destruction policy, Carol Bizzarro was manager of administration. Among her responsibilities was the company's library and central file registry, the contents of which were affected by the company's document destruction policy. The plaintiffs had made it clear that they wanted her evidence about the details of implementing that policy.

If they were expecting a librarian with a flair for classification or an administrator with a fetish for detail, they were in for a disappointment. Carol Bizzarro fit neither stereotype any more than she looked typical of the pensioner she has become. She arrived stylishly dressed in clothes one might expect on a woman half her age and looked more like the object of blond jokes than the subject of a corporate cover-up.

Although Ms. Bizzarro had supervised the implementation of the document retention/destruction policy (Exhibit 319), she had very little recall of any of the details. Her answers suggested she had little real engagement in the work around her. Even under André Lespérance's patient questioning, she said little.

Inability to recall seems to be an occupational hazard for former Imperial Tobacco employees, but there was something about her version of the "I don't remember" chorus that seemed to touch a few nerves. This is the first witness that Justice Riordan has openly chastized. "'I don’t remember' is not an adequate answer – try harder," he admonished her.

She was not a witness like the others. By class and disposition, Carol Bizzarro seemed a true outsider to the legal tribe in courtroom 17.09. Although a day and a half had been set aside to hear from her, she was dismissed before lunch.

Filling in the gaps

With a half day suddenly released from its schedule, the plaintiff lawyer's turned to the time-consuming task of entering documents as evidence. Imperial Tobacco's lawyers (this time Suzanne Coté) again applied blanket objections, which again made the exercise more efficient. Despite grumblings about "document dumps" and objections that put some exhibits "under reserve," the exercise was uneventful.

The exhibits entered today range from Exhibit 329 to 426. Some are the scientific reports that were identified on Imperial Tobacco library's card catalogue (Exhibit 319 D). Others related to CTMC meetings and decisions and various BAT scientific meetings.

By inference, these will be linked to the testimonies in the coming weeks by Roger Ackman (May 28) Scientist A. Porter (May 29 - 31),  ITL President Marie Pollet (June 4-5), CTMC former director Bill Neville (June 6-7) and whistle-blower Jeffrey Wigand (June 20-21).

Tuesday, 15 May 2012

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.

Monday, 14 May 2012

Day 28 - Do they not like Mondays?

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

Maybe it was Mother's Day.  Maybe it was hay fever. For whatever reason, the trial of the  Montreal class action suits against tobacco companies opened its 8th week on a cranky note.

The day bounced between querulous interventions from certain lawyers ("How are we supposed to keep up with this!  It's just not fair!") and unhelpful responses from a certain witness ("I never read this document before, and as such did not review it in preparation.") With contentious issues on the horizon, the rest of the week may be as fractious.

New exhibits, few answers

Today was the third day that former Imperial Tobacco Limited marketing strategist, Ed Ricard, testified. The term 'former' to describe his relationship with Imperial Tobacco might not be fully descriptive. In his answers, he aligns himself with the interests of a company where he worked for almost 3 decades, and where his father once held the most senior positions. 

Mr. Ricard was given lots of opportunity to provide insight into the way that Imperial Tobacco understood its market, designed its marketing strategies, and viewed its customers, as he was questioned by plaintiff lawyer, Philippe Trudel, on marketing documents that spanned more than 20 years. In the absence of much explanation from Mr. Ricard, the new exhibits were left to speak for themselves.

Exhibit 304. This 1978 research project on 16 and 17 year old high school students in four Quebec cities is titled Etude d'exploration qualitative du Marché des jeunes fumeurs quebecois. It is another in the CRY series (CRY6).  It sought to learn more about young people's first smoking experiences (When? Why? How? With whom? Under what influence?), their attitudes and awareness of health issues and their views on various tobacco ad campaigns.

Exhibit 306:  (CRY10) This 1982 study bills itself as part of a "larger effort to better know and understand the market for young smokers."  (Title: Les jeunes face a la cigarette: Exploration qualitative de leurs comportemetns et de leurs attititudes). Participants were 16 to 24 years of age, and included smokers and former smokers.

Exhibit 309. (CRY27-C) This extract from the 1987 Youth Target  provides tables to the custom questions Imperial Tobacco commissioned. Young persons' smoking behaviour, demographics, psycho-graphics, attitudes towards smoking and interests were plotted against one another to give a profile of which sponsored events appealed most to those most likely to smoke.

Exhibit 311. This financial update shows that after the federal government reduced taxes in 1994, Imperial Tobacco's profits increased by 30%.  Increased smoking rates were credited with some of the additional millions.
Project Crawford & Fresh Lights
Exhibit 314.  A 16 page handwritten note from 1983, this one exchanged among people working to find a way to solve "what we have defined as 'side effects' to cigarette smoking." The ITL team is sharing a Eureka! moment as they look at a rosy road ahead through the "key-hole" of lights:
Our marketing opportunity is to advance along the time line of the long run evolution of plain end to filter to king to light and lighter. 

Exhibit 315.  Today, Ed Ricard gave reluctant answers to questions about his views regarding low tar cigarettes being safer. In this memo he wrote in 1989 on very low-tar cigarettes, however, he eloquently discussed how these products had allowed smokers concerned about health risks or under social pressures to continue to smoke. (When asked today what he meant when he called smokers dissonant, he coined a new meaning to a term more usually used to describe someone who smokes but is unhappy about it. Today he said that a "dissonant smoker" is someone who does not have a firm  brand preference.

Exhibit 318.  In 1995, Project Renaissance was designed to find out more about consumer preferences for reduced risk products. It was seen as a follow on to Project Viking and also was linked to Project Day.  This exhibit suggests there was also a Project Month!

Arguments, arguments, arguments!

Last Friday many trooped across the street to the hearing at the Court of Appeal on a request to review Justice Riordan's May 2nd ruling. The court made no decision, and the plaintiffs continue to be able to enter  exhibits on the trial record without having to restore to life the dead authors or recipients in order for the documents to be authenticated.

Other documents continue to be the subject of differing views on admissbility. Today, brief discussions were held on three concerns held by the tobacco companies on certain documents - parliamentary privilege, solicitor client privilege and confidentiality.

A secret discussion about secrets?

Time has been set aside this Thursday afternoon for a discussion about Imperial Tobacco's request for 12 documents to be sealed. (Deborah Glendinning rescinded last week's request for confidentiality for documents that are on the public record as a result of the Tobacco Act trial. Everyone kept a poker face.)

Justice Riordan has clearly been preparing to rule on the issue of confidentiality. He reported that some of his weekend had been spent reviewing a Supreme Court of Canada ruling on the tension between commercial confidentiality and public interest (the case involved the Sierra Club, the federal government and Atomic Energy of Canada Ltd.).

Justice Riordan hinted there was a solution he would like to be considered, i.e. the development of document summaries which protected confidential information while allowing the 'essential part' to be made public. Any hopes he might have had that such an approach might free him from having to write another judgement during the scheduled break in hearings next week (let alone free the Court of Appeal from the seemingly inevitable appeal of his judgements) would have been dashed by André Lespérance's response.

Mr. Lespérance explained that one of the documents in question involves survey data Imperial Tobacco collected over decades, and has about 30,000 pages and that it is not only the size that makes this document hard to summarize in such a way.  "The CMA market research is difficult and will need to be argued on the principle," he said. "What interests us is quitting and starters -- we will be arguing that it is not confidential information under the meaning of the Sierra Club decision."

Justice Riordan asked whether Imperial Tobacco would be wanting their motion to seal documents to be heard in camera, and was told that such a request is forthcoming.  "If the content comes out in discussion, then the whole issue is moot," explained Deborah Glendinning. Who knows? Maybe the discussion about whether to have an secret in camera session to discuss secret confidential documents will also be held in behind closed doors....

Parliamentary Privilege

Another issue that has not been resolved is whether or not the trial will receive as evidence records of parliamentary discussions, including the testimony given by Jean-Louis Mercier to the Commons legislative committee.  Today, Philippe Trudel tried to introduce a document the Canadian Advertisers Association had provided to parliament, but after objections held it back until the issue is resolved. No date has yet been set to discuss this aspect. (Parliamentary records were introduced as evidence in the constitutional challenge to the Tobacco Products Control Act).

Solicitor Client Privilege 

The tobacco companies have hired historian David Flaherty as an expert witness, but when he appears tomorrow afternoon it will be as a fact witness for the plaintiffs.

Today, it was let drop that the topic of questioning will be the mysterious "Four Season Project" about which the plaintiffs lawyers have asked each witness (none have yet admitted any familiarity). It appears from documents on the Legacy web-site that in 1988, David Flaherty was engaged to measure and document awareness of health issues related to smoking, as part of a Canadian industry-wide effort that was called the Four Season Project. In 1989, David Flaherty was again hired to use such information to help fight Canada's first ever (but ultimately  unsuccessful) lawsuit against tobacco companies.

Deborah Glendinning gave notice that she thinks that solicitor-client privilege should apply to these documents. (You might have thought that privilege was waived once the release of multiple copies was negotiated in out-of-court settlements, but there you go.)

Line up for the rest of the week is as follows:  Tomorrow morning is Ed Ricard's last appearance this week, although he is expected to be called back later. Tomorrow afternoon, David Flaherty will appear.  Wednesday, a librarian from Imperial Tobacco, Carol Bizzarro, will appear. On Thursday afternoon, arguments on the issue of confidentiality will be heard, and on Thursday morning the filmed deposition of BAT lawyer John Meltzer may be aired.

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:

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.