Monday, 2 April 2012

Day 9 - Imperial's Long-Time Lawyer Takes the Stand

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

The hallway outside the downtown Montreal courtroom was so filled with cameras that it was difficult to make it through on the first morning of week three of the trial. More seats in the public gallery were filled than usual, some by journalists with pen and notebook in hand.

They came for the testimony of Roger Ackman, who was General Counsel for Imperial Tobacco from 1972 until his retirement in 1999. The media interest may have been piqued by an article in the morning's edition of La Presse setting the stage for Mr Ackman's testimony in connection with the Imperial Tobacco document destruction issue.

Procedural Updates

But before Mr Ackman could take the stand, the judge and lawyers needed to discuss two upcoming motions. Their discussions brought to light that, while testimony was paused last week, the plaintiffs' lawyers filed the abuse of process motion that they had given the court verbal notice of the week before, regarding the tobacco companies' refusal to admit the authenticity of several documents in the first two weeks of the trial.

The plaintiffs also subpoenaed a partner in Imperial's law firm in Toronto to testify in order to establish the authenticity of documents provided to the plaintiffs by the firm during the pre-trial disccovery process. Imperial has moved to quash this subpoena.

Justice Riordan scheduled the legal arguments on the abuse of process motion and the motion to quash the subpoena for Thursday.

The "Spirit and Brain" of Imperial Tobacco

Finally, Mr Ackman, 73, took the stand, his thinning hair neatly combed, his suit reminiscent of Dustin Hoffman's in Death of a Salesman. Introductory questions from plaintiff lawyer Gordon Kugler established that Mr Ackman graduated from McGill law school in 1963, joined Imperial's legal department in 1970 and became General Counsel in 1972. Mr Ackman also testified that he was simultaneously a Vice-President of Imperial, a member of Imperial's management committee alongside the company President and other Vice-Presidents, and General Counsel for Imasco, the holding company that wholly owned Imperial at the time. At times, British American Tobacco (BAT) owned a majority of the Imasco shares and at other times it was a significant minority shareholder.

Later in the day, when Imperial lawyer Deborah Glendinning objected to one of Mr Kugler's question, Justice Riordan called Mr Ackman part of the "spirit and brain" of the company in explaining why he was dismissing the objection.

Mr Ackman's answers were, by and large, very short, often just "yes, sir", "no, sir" or "I don't know that, sir". He often interrupted Mr Kugler with his brief answers before the plaintiff lawyer could finish his questions, especially when being pressed for clarification of an earlier similarly-worded answer. It did not take long for Justice Riordan to rule that Mr Ackman was partial to Imperial Tobacco, opening the door for Mr Ackman to question him cross-examination style. At one point, the judge reminded Mr Ackman that witnesses were there to answer questions, not to ask them.

Late in the day, Mr Ackman shouted at Mr Kugler when Mr Kugler questioned him on whether Imperial's management committee ever discussed the fact that the vast majority of people who smoke start smoking in their youth.

"I chose not to smoke!", Mr Ackman shouted loudly enough to send feedback from the courtroom speakers back through his microphone. "I don't have to give a reason. I chose not to smoke. Neither of my children smoke," he continued.

"Did you tell them not to?", asked Mr Kugler.

"No," said the witness.

At another point, Mr Kugler overcame the objections of Imperial Tobacco in order to ask Mr Ackman about his personal view, as a member of the management committee, on whether Imperial had a duty to make sure its products did not harm consumers.

Mr. Ackman replied that they sold a legal product and added, "We did precisely what we were entitled to do, all in accordance with the government."

"Do you make a distinction between the product being legal and harmful to the health of consumers?", pressed Mr Kugler.

"I am trying not to make that distinction," Mr Ackman replied.

Mr Kugler pressed the witness further on whether he personally felt it was acceptble to sell a product that harmed consumers, as long as it was legal.

"It was their choice to smoke, the government didn't ban the product," Mr Ackman said.

Later, Mr Ackman did state that, in his personal opinion, nicotine was addictive. He could also recall no instance when Imperial's management committee ever discussed the health effects of smoking or the fact that most people start to smoke as youths. Even when Mr Kugler showed him the 1995 Supreme Court of Canada decision that held unanimously that smoking caused the premature death of over 30,000 Canadians annually, Mr Ackman could not recall anyone raising product harmfulness at the management committee level.

Document Destruction and "A Major Victory"

Mr Kugler began but likely did not finish questioning Mr Ackman on the document destruction issue today.

Mr Ackman's memory was spotty, but sometimes improved when Mr Kugler showed him documents. Although previous witness Michel Descôteaux vividly remembered running to Mr Ackman's office for information when the media called about the document destruction issue on September 15, 1998, Mr Ackman could not recall talking to Mr Descôteaux about the press release Imperial issued that day (exhibit 57).

The press release said:

All of the studies referred to in the documents filed by the anti-tobacco groups were copies only of B.A.T. documents, the originals of which are, as always, in B.A.T. posession. Copies of these documents currently exist elsewhere and, for the most part, are readily available. (emphasis in original)

Mr Ackman could not recall how these documents were "readily available" or whether the phrase "for the most part" meant some of the documents were not readily accessible. However, he did testify that he assumed what the company said in the release was "correct". Earlier in the day he had testified that he would have expected the public to be able to rely on a statement in an Imperial Tobacco press release and that anything in a release would be "honest", "truthful" and "complete."

Although the press release said "ITL, just like other companies, has a policy of reviewing its files periodically," Mr Ackman could not recall any other time when Imperial destroyed research documents.

Asked why outside lawyer Simon Potter was involved in document destruction, involvement referred to in exhibits, Mr Ackman said he hired Mr Potter to settle the matter with BAT.

"That implies there was a matter," Mr Kugler said, and asked what the matter was, but Mr Ackman said he could not recall what.

After lunch, Mr Ackman testified that BAT pressured Imperial to destroy the research documents, though he said he could not recall why. He also could not recall why lawyers instead of researchers decided which documents to destroy. Mr Ackman also recalled that he initially opposed BAT's pressure to destroy the research documents unless Imperial would retain access to them, but could not recall if this issue was ever addressed.

His memory might have been refreshed after having had time to think over lunch. Before lunch, Mr Kugler had introduced correspondence between Mr Ackman and BAT lawyers, from late 1989 and early 1990, as exhibits [68, 69, 71, 72, 72A and 74].

On October 4, 1989, Mr Ackman circulated a memo (exhibit 68) to senior Imperial and Imasco management, as well as lawyers for BAT and Brown & Williamson (a US-based BAT subsidiary) and various others that might be relevant to why they would want to destroy certan research documents in Imperial's hands. Mr Ackman said could not recall why he included a Brown & Williamson lawyer on the distribution list.

Attached to Mr Ackman's cover note was a daily trial report from the constitutional challenge to the federal Tobacco Products Contol Act that was going on at that time. Mr Ackman could not recall if he or another lawyer wrote the report. The report noted that the trial judge had provisionally excluded "studies by or for BAT in ITL's posession" from discovery because only Imperial, the Canadian subsidiary, was a party to the case. Only Imperial was suing the federal government, making BAT a third party. The daily report called this "a major victory".

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.

By Michael DeRosenroll for Cynthia Callard