Thursday, 3 May 2012

Day 23 - Technically, nothing stopped Jean Louis Mercier from warning smokers

For information on accessing documents linked to this page, please see the note at the end of the blog.

On the last court day of this week, Jean-Louis Mercier (former president of Imperial Tobacco) returned again to be questioned on his understanding and knowledge of events at Canada's largest tobacco company during the period of his presidency from 1979 to 1993.

The Off Again, On Again research partnership with BAT.

In the morning, plaintiff-lawyer Mr. Philippe Trudel introduced a few more chapters in the story of the tense relationship between the scientists housed at Imperial Tobacco Canada and their U.K. counterparts.

It has become clear, through the documents introduced (such as Exhibits 256 - 262 introduced today), that the struggle over document retention was only one of many disagreements between ITL scientists and BAT management. The Canadian associate and the U.K. headquarters disagreed over the scope, financing, creative control and terms of partnership in their shared undertakings on scientific research. This serialized saga, with its many minor characters and unexpected plot twists is Dickensian to the extent that it needs its own Coles notes version -- perhaps one will be provided here later.

The Ask again, Ask again questioning of Mr. Mercier.

Mr. Mercier is a man who knows how to keep to a "message box."  His answers never varied to the extent that the questions put to him did. He repeated many times that ITL's efforts in marketing and product design were efforts to meet the demands of Health Canada, or actions based on suggestions of the Surgeon General. 

The disconnect between the unsophisticated answers he gave and the rich and complex corporate history that was developed during his time as Imperial Tobacco president is impressive. 

The man at the very top of the BAT hierarchy, Sir Patrick Sheehy (Mr. Mercier put a comic stress on the "Sir"), had once characterized Mr. Mercier's ideas as "overly-simplistic" (Exhibit 255A), and there were many moments over the now 4 days of his testimony that one might forgive him for coming to this uncharitable conclusion.

A son's reason to quit smoking

One of the few moments when Mr. Mercier broke away from what sounded like a long-remembered script was when  Mr. Trudel reminded him of his earlier mention of a son who quit smoking.

He hasn't restarted. While travelling in Mexico the son had experienced a blood clot. His doctor said he should stop smoking and he stopped. ...To stop smoking you need a good reason.

How old was he when he started smoking?
14, same as me.

Did he smoke Imperial Tobacco products?
Well yes!

Did it bother you that he smoked?
No more than that my other son didn’t smoke

Did you know that smoking was harmful?
I knew in the sense that I had read it in Readers Digest.

Do you know whether your son had read Readers Digest?

Justice Riordan closed this small window on the private life of this important witness, and signalled to Mr. Trudel to return to questions regarding documents before Mr. Mercier.

Duty to warn

The most riveting moments of the week came at the end of this last sitting day, when Mr. Trudel turned to the issue of Imperial Tobacco's receipt of a legal opinion regarding their legal liability and a letter asking the company very specific questions about what they intended to do with respect to their duty to warn smokers of the health risks.

The opinion was from McCarthy and McCarthy. It was not commissioned by Imperial Tobacco, but by the Non Smokers' Rights Association. (Exhibit 264).  It was circulated in February 1988 to all Imperial Tobacco Vice Presidents and marked strictly confidential

Mr. Trudel read extracts from the opinion and repeatedly pushed Mr. Mercier on the issue of what actions the company had taken to warn smokers.

"It is clear that the manufacturers of cigarettes are under a duty to warn consumers of the dangers inherent in the use of their product” All smokers were warned. There were notices on the packages and on the warnings, Mr. Mercier said. 

Mr. Mercier said again that the federal government shared responsibility and received billions of dollars in tax money. He said again that there had been an agreement with the federal government to print the agreed-on health warnings, and to put no further information no the packages.  Where was such an important agreement with government, on such an important issue, and why did no signed copy exist?  Mr. Mercier suggested that maybe a signed copy existed somewhere.

Several times Mr. Trudel repeated the question "was there anything preventing you from informing consumers of all the risks associated with smoking?"  Several times, Mr. Mercier avoided answering the question. Justice Riordan repeated the question.  Finally Mr. Mercier acknowledged  Technically, there was nothing that prevented us. But we had an agreement with government that we would not say anything.

There was a pause, an exchange of looks among many, and the release of breaths. 

Mr. Trudel moved quickly to the next document that had come from the NSRA regarding duty to warn. This was a letter which had been sent six months earlier (in August 1987) from NSRA's staff-counsel, David Sweanor. (Exhibit 265) It asked Imperial Tobacco four questions about : its views on the health hazards of smoking, the magnitude of health effects attributed to tobacco, the company's understanding of consumer knowledge about health risks, and whether the industry had information different than publicly available opinion surveys.

Mr. Mercier could not remember whether the letter had been answered, nor would he provide direct answers 25 years later. When Mr. Trudel attempted to refresh his memory on the company's research on consumer knowledge of risks, (Exhibit 63), Mr. Potter leapt to his feet and launched a lengthy objection. 

The clock was ticking towards the agreed upon quitting time, and it looked very much like a coach calling a "time out" at the end of a bad hockey period to allow his team to rest. Sure enough, before Mr. Trudel could obtain another damaging admission, the witness was released for the weekend.

Monday the trial resumes.  Jean-Louis Mercier will again be on the stand.  Other witnesses scheduled next week include Mr. Kalhok and Mr. Ricard.

Rulings worth a second look

Some sleep and a few cups of coffee later, some of the decisions of Justice Riordan made available yesterday seem worth another mention.

A foul is called against the tobacco companies 

His May 2 ruling came about a month after the plaintiffs presented their concerns that Imperial Tobacco was  improperly blocking the admission of certain documents into evidence. While the focus of the discussion on April 5 was on five particular documents (including three media transcripts and two memos written by a senior manager who is now dead), the issue was of much broader implication. (Michael DeRosenroll explained in his blog entry that an unfavourable decision on their motion could hinder the ability of the plaintiff's to make their case).

The plaintiffs had asked the court to rule that Imperial Tobacco's denial of these documents was an abuse of process, to dismiss the company's notice of denial, to allow the documents to be admitted and to uphold the right of the plaintiffs to enter future similar pieces.

Justice Riordan agreed with the plaintiffs and ruled that the actions of the industry fit squarely with the definition of abuse of process in the civil code -- "unfounded, bad-faith, excessive and unreasonable." He struck down the industry's objections to the documents being admitted. (He did not agree to the request that all future similar cases be similarly allowed, saying that they will have to be decided on a case by case basis and subject to the usual appeals).

The federal government's leash is shortened

Another noteworthy comment can be found in Justice Riordan's decision to disallow major parts of Dr. David Burn's expert testimony. Simon Potter had argued on April 16 that the expert report was more aimed at helping the principal action (the class action suits against the industry) than it was at the action in warrangy (the company's suit against the federal government).  "This is Dr. Burns not defending the action in warranty, it is piling on to the plaintiffs' case," he said.

Justice Riordan was persuaded, and his judgement may influence the role that the federal government plays as the case proceeds (presuming that they are not able to convince higher courts to overturn the decision that has kept them in the case). On May 1, he ruled

Other than for reasons of masochism or altruism, a defendant in warranty would not want to support the case of the principal plaintiff, for the latter's failure leads inextricably to the former's success. And neither of those motives suffices in law to provide standing or 'a sufficient interest' in a dispute. The defendant in warranty therefore has no standing to intervene in favour of the principal plaintiff. (emphasis added)

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.