Thursday, 19 April 2012

Day 19: Jean-Louis Mercier remembers (sometimes)

See note on accessing documents at the end of this post.

The trial of the two Quebec class action suits takes place 4 days a week, and 3 weeks a month.  On paper it looks like an easy schedule - only 12 sitting days a month -- but in the courtroom it feels anything but. As the end of this three-week run of hearings came to a close, there were signs of fatigue all around the court - shoulders were slumped, tempers were short, hair less perfectly coiffed.

Even Suzanne Cote, who has energetically defended Imperial Tobacco against the introduction of virtually every exhibit began to flag as the week wound to a close.  More quietly now: "same objection, your honour."  "Noted."

Despite its low-energy, today's testimony had dramatic evidence, and produced documents that give an insight into how Canadian companies planned from 1987 to shift any blame to government.

Jean Louis Mercier's memories

Jean-Louis Mercier, who led Imperial Tobacco from 1979 till 1993, had his first full day of testimony today.  During the afternoon of the previous day, plaintiff lawyer Philip Trudel had asked the usual introductory questions, and had begun to question Mr. Mercier on the policies established at Imperial Tobacco during his time there with respect to document retention/destruction, communication with consumers and the public, product design and marketing, smokers' compensation and engagement with other companies. These were the same themes he returned to today.

For the most part, Mr. Mercier was a difficult witness to pin down. He had poor recall of the company's challenge to the 1988 federal advertising ban, (C-51, the Tobacco Products Control Act). He couldn't remember hearing that it his lawyers considered it a "major victory" that the judge in that case decided that scientific documents did not have to be shared with the government lawyers. (Exhibit 70) He couldn't remember why he had asked BAT's lawyers to review the minutes of a science meeting, or why the BAT's American affiliate, Brown & Williamson, was excluded from the distribution list of minutes for a meeting they had attended. (Exhibit 94). His memory of discussions among members of the Canadian Tobacco Manufacturers Council about the Smokers Freedom Society (Exhibit 190) were similarly vague.

Nor could he recall receiving documents in which BAT suggested a "change of stance" on the public position about the harms of smoking (Exhibit 186), or receiving a binder heavily marked SECRET of BAT Board strategies on health issues. (Exhibit 185).

He could remember clearly the differing effects between paper ventilation and filter ventilation on the different deliveries of tar and nicotine, and had a clear recall that there was a study in Ontario where 3 of 45 butts were shown to have been covered.  But he couldn't remember receiving BAT reports sent to him which reported on the development and reporting on research that showed compensation was much more frequent. (Exhibits 191, 192, 193, 194, 195)

One thing he recalled very clearly was that it was in response to the desires of the federal Department of Health and Welfare, and in particular because of the submissions of deputy minister Dr. Morrison, that Imperial Tobacco had altered its marketing and product development policies and had manufactured and advertised 'light' cigarettes.  He also recalled clearly the 1976 suggestion by Dr.  Gio Gori (of the U.S.National Cancer Institute) that it might be possible to smoke a moderate number of low tar cigarettes without any health risk.

Mr. Mercier clearly recalled that British American Tobacco NEVER gave orders to Imperial Tobacco and that Imperial Tobacco's head of research, Dr. Patrick Dunn, had complete authority over which documents he retained and for how long.

Jean-Louis Mercier's views on smoking

Mr. Mercier worked for a tobacco company for 30 years, and was president of Canada's largest tobacco company for over a decade. The plaintiffs introduced several documents showing that he had attended meetings where complex research was presented, and more documents showing he had received regular reports on all manner of product development. Yet the understanding he showed of some key issues could most charitably be described as naive.

Q. What are the effects of nicotine?
A. I don't know.

Q. What was the opinion of ITL on addiction?
A. I don't think there was a position.

Q. Do smokers have withdrawal symptoms?
A. 60% people in US are obese. Maybe this is the result of quitting smoking. Maybe it causes something, if they compensate with too much food.

Q. Were you concerned that there was a 'positive dose response relationship' between exposure to smoke from ventilated cigarettes and damage to cells?
A. Not necessarily. It showed a positive dose response relationship.

Q. What does positive dose relationship mean?
A. There was a response. Postive means it was a positive response. It depends on what sense you mean it.

Jean-Louis Mercier's recommendations:  
(shift the blame to government) 

Exhibit 187: secret analysis in 1987
Mid morning, Mr. Trudel introduced Exhibit 187, "Some thoughts on smoking and health, social acceptance, social cost, environmental tobacco smoke" and asked Mr. Mercier to confirm that this paper had been jointly prepared by him and Wilmot Tennyson in 1987.  At the time Wilmot Tennyson was ITL's president of marketing. (Mr. Mercier told the court that Mr. Tennyson was given the title of 'president' because it was expected that "the president" would attend events that were sponsored by Imperial Tobacco, but that he  hated doing that sort of thing).

This paper was marked "strictly personal and confidential" and was distributed to only four men in the company: the 2 authors (who headed Imperial Tobacco) and the two heads of the company that wholly owned Imperial at that time,  IMASCO (Paul Paré, who retired later that year and Mr. Purdy Crawford who had become CEO in 1985).

This paper provides an eloquent and disturbing analysis of how the industry has lost its way and what it must do to recover itself. The battle has been lost on four critical fronts, the authors say and review the set backs they have faced in the areas of "smoking and health, social acceptance, social cost, and environmental tobacco smoke."

In this confidential arena, the authors don't quibble about health effects:

"Smoking is a serious health hazard; it is an accepted fact and there is no longer any possibility of refutation. Governments are convinced, smokers concede, non-smokers are up in arms, shareholders and employees are bewildered."

They are equally blunt about the fact that smoking has lost any sense of prestige ("the educated, civilized smoker [is] now left with a deep-seated (albeit unconfessed) inferiority complex"), is understood to be an economic liability and angers non-smokers who are exposed to secondhand smoke.

Mr. Tennyson and Mr. Mercier  use this analysis to suggest that the tobacco industry must accept "that the burden of guilt must be shifted to government; which is not only the major financial beneficiary, but which also has power and means to act."

Jean-Louis Mercier's admissions:
(proof of disease would have justified banning cigarettes)

Mr. Trudel pushed Mr. Mercier to explain the thinking behind some of the stark statements in the paper. Most intriguing was his reply to the question "did ITL have any doubts that smoking was killing 32,000 Canadians a year?"  Mr. Mercier replied: "If the government could have proven scientifically that the product killed, it would have been a good reason to ban it."

Looking ahead

Mr. Mercier left the court at 4:15 and attention turned to procedural matters.

ITL lawyer Deborah Glendinning reported that documents that had been the subject of a clarification earlier in the week (see Day 17) would be available by the end of the first week of May.  (Her team was “working around the clock, as you can imagine. I cant push them any harder”).

Plaintiff lawyer André Lespérance signalled that the issue of parliamentary privilege would need to be addressed. [This is, by inference, with respect to Mr. Mercier's testimony before a legislative committee of the House of Commons during its review of bills C-204 and C-51 in 1987].  Mr. Potter's views of parliamentary privilege, and the extent to which one could lie to parliament with impunity, might not be exactly the same as Erskine May's, but they were energetically presented nonetheless.  

The schedule for the next week of hearings was reviewed.  On Monday, April 30, Michel Bédard of the Smokers' Freedom Society will appear, and a filmed testimony of U.K. lawyer John Meltzer will be shown. Mr. Mercier will return on May 1 and 2nd, and Mr. Kalhok will be invited to return on May 3rd.

Tomorrow, Friday April 20, the Quebec Court of Appeal will hear a request for an appeal of Justice Riordan's rejection of the federal government motion to be dismissed from the case.  

Stay tuned.
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.