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.