Tuesday, 3 April 2012

Day 10 - Some of the Destroyed Documents Come to Light

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

The second day of retired Imperial Tobacco General Counsel Roger Ackman's testimony began with the lawyers battling over the admissibility of study reports destroyed by the company in the early 1990s but now recovered from British American Tobacco (BAT), Imperial's UK-based parent company.

The night before, plaintiff-side lawyer Gordon Kugler had given Mr Ackman five of the roughly 100 studies to read so that he could answer questions about them. But Mr Kugler had hardly begun questioning Mr Ackman on the first study (a 1974 study called "Experimental Tumorigenesis in the Hamster Larynx") when Mr Ackman, seeming to forget he was there as a witness and not Imperial's lawyer, started objecting to the judge about the questions rather than answering them.

Mr Ackman objected that he was not competent to answer questions on the studies because he is not a scientist. Justice Riordan replied that he needed to hear what Mr Kugler was actually going to ask him about the studies before he could decide if the questions were fair.

Imperial lawyer Deborah Glendinning took up Mr Ackman's objection, arguing that the studies should not be admitted as evidence through this witness because he had no recollection of ever seeing them before this trial. Mr Kugler retorted that the studies were already part of the trial record through the pre-trial examination of former BAT lawyer John Meltzer, which took place earlier in the United Kingdom, and added that his questions for Mr Ackman about the studies had nothing to do with science.

After a lengthy spirited argument, Justice Riordan decided to admit the studies to the trial record but to decide later how much weight to give the contents of the studies. However, the lawyers then got bogged down on how to assign exhibit numbers to so many documents. To allow Mr Kugler to get on with questioning Mr Ackman about the five he had given Mr Ackman to review, Justice Riordan assigned temporary exhibit numbers to those five. Thus, only these five studies were added to the trial record today, pending a later decision on assigning exhibit numbers to the rest.

The introduction to the first study said:

Several investigators and our own experiments have show that tobacco smoke acts as a tumour promoter when applied repeatedly to the skin of mice with a single pretreatment with a low dose of a chemical carcinogen, such as DMBA. This information suggested that inhaled tobacco smoke might likewise act as a promoter in respiratory carcinogenesis...

Mr Kugler asked Mr Ackman if he believed, as a member of Imperial's management committee, that Imperial should have shared this 1974 study with the government and the public. Mr Ackman said he did not know.

Next came a 1976 study called "A Review of the Genetics and Consequences of α1-antitrypsin Deficiency".

The introduction to this study said:

The occurence of emphysema of the lung has been associated with cigarette smoking, although there is evidence that the susceptibility to emphysema is inherited. During the last twelve years strong evidence has accumulated that a deficiency in the blood serum level of the enzyme α1-antitrypsin (α1-AT) pre-disposes people to emphysema, and that it is this deficiency which can be inherited. Consequently, for individuals with such a pre-disposition, smoking could be hazardous.

Asked if he believed, as a member of Imperial's management committee, that Imperial should have shared this information with the government and the public, Mr Ackman said "I have no opinion, sir."

Third came a 1989 study called "The Analysis of Coumarin on Tobacco by Thermal Desorption/Gas Chromatography/Mass Spectometry".

The introduction to this study said:

In 1988, the Additive Guidance Panel of BATCo advised on the basis of "in vitro" toxicological evidence that coumarin should no longer be added as a flavour to tobacco blends.

Mr Ackman could not recall the Imperial Tobacco management committee ever discussing removing coumarin from the company's products.

Next came a 1980 study called "A Comparative Inhalation Study on Smoke from Cigarettes with Different Filters".

The summary section of the study said:

If, therefore, the human smoker shows a parallel reaction and also inhales less irritant smoke more readily, then the inferred benefit of vapour phase filters is undermined to a degree.

Mr Ackman could not recall the Imperial Tobacco management committee ever discussing the company's use of filters on cigarettes. He also could not think of any reason why Imperial Tobacco should not have shared the information in this study with the government.

Last came a 1976 study called "Compensation for Changed Delivery".

The summary section of the study said:

On balance, it is concluded that many established smokers do compensate for changed delivery in an attempt to equalize nicotine delivery, when this is possible.

Mr Ackman said he had no opinion on whether the information in this study should have been provided to the government or the public.

A Disastrous Consequence

After finishing with the five studies, Mr Kugler moved on to a 1975 memo from BAT to its affiliates (exhibit 79). The memo spoke of "disastrous consequences that would result from any Group Company voluntarily accepting a warning on packs or advertisements which was not attributed to government or the medical authorities."

Asked if he could think of any reason why this would be disastrous, Mr Ackman said "I suppose that would discourage people from smoking."

"And that would be a disastrous consequence?", asked Mr Kugler.

"I can't answer it that way, sir", replied Mr Ackman.

The Evolution of Imperial's Document Retention Policy

Mr Kugler spent the last part of the day running rapid-fire through a series of exhibits to establish a timeline of the evolution of Imperial's document retention policy.

Evidence yesterday showed that Mr Ackman was communicating with BAT during the trial for the tobacco companies' constitutional challenge to the Tobacco Products Control Act (Bill C-51) in 1989. A daily trial update (exhibit 68) called the judge's decision not to admit BAT documents into evidence "a major victory".

In January 1990, legal representatives from Imperial, BAT, Brown & Williamson (BAT's US affiliate) and BAT's German affiliate met in New York to discuss "what R+D documents their own company currently sends off-shore and also what document retention policy, if any, is currently in place within their companies" (exhibit 82).

In February 1990, BAT outside counsel John Meltzer came to Imperial Tobacco's headquarters in Montreal (exhibit 84). Mr Ackman testified that Mr Meltzer came because he wanted to see what BAT documents Imperial had in its possession.

Later the same month, BAT lawyers Stuart Chalfen and Nick Cannar also travelled to Montreal to meet with Mr Ackman "on the subject of the revised Research Contract and Document Retention Policy" (exhibit 85).

In June 1990, Mr Ackman phoned BAT lawyer Nick Cannar to advise him that evidence in Bill C-51 case had closed and that Mr Ackman now proposed "to proceed with the implementation of the Document Retention Policy" (exhibit 87).

In August 1990, Imperial's Management Committee approved a new document retention policy proposed by Mr Ackman (exhibit 89). This policy called for Imperial to retain BAT research reports permanently.

In September 1990, BAT lawyer Stuart Chalfen wrote to Imperial President Jean-Louis Mercier requesting that the document retention policy just approved be modified so that Imperial would only retain BAT research reports for five years, rather than permanently (exhibit 90).

In October 1990, Imperial's Management Committee revised the document retention policy to reflect the change requested by BAT (exhibit 95).

In February 1991, Imperial's Management Committee approved a new access to documents agreement with BAT (exhibits 96 and 96A).

In September 1991, Mr Ackman travelled to the United Kingdom where he met with BAT lawyer PL Clarke. Clarke followed up on the meeting by sending Mr Ackman a draft proposal for BAT to demand, in accordance with the access to documents agreement approved earlier that year, "the return of all BATCo research reports and any other
BATCo research documents, which have not already been destroyed by Imperial Tobacco in accordance with its own document retention policy, together with any copies of such documents" (exhibit 100A). However, Mr Clarke noted in the cover letter to Mr Ackman "that perhaps we will be able to reach some agreement under which the documents in question are destroyed rather than having to arrange for them to be physically returned" (exhibit 100).

At the end of the day, Mr Kugler attempted to introduce a "memo to file" about the document retention policy from an Imperial Tobacco R&D employee who is now deceased. The industry lawyers objected, so the document had to be placed on reserve pending a later ruling by the judge on its admissibility.

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.

By Michael DeRosenroll for Cynthia Callard