Thursday, 21 June 2012

Day 47: Big Tobacco really doesn't want the plaintiffs to see their financial records

With no witnesses scheduled for the last day of the trial before the two month summer pause, business suits replaced the formal court gowns normally worn by the lawyers and judge. But unlike the last day of school, when it is customary to let the pupils leave early, the lawyers and judge put in an extra-long day, arguing a number procedural motions until almost 6pm.

Most of the day's issues concerned the federal government. Normally the Attorney General has three or four lawyers sitting quietly at the back of the courtroom, but on this day they showed up with almost a dozen, taking over much of the lawyers' seating area normally used by the plaintiffs. (The plaintiffs left most of their team in the office for the day, creating the room for the extra federal government people).

But the most interesting and important issue of the day was the one argued first, which had relatively little to do with the federal government. For some time the plaintiffs have been asking the defendants to turn over their financial statements for the last five years. The tobacco companies have refused, so today it went before the judge.

The reason the companies' recent financial statements are important is because the plaintiffs are asking for punitive damages if they win. Punitive damages are extra damages awarded by the court that go beyond just compensating the victims. They are only awarded by the courts in exceptional circumstances, when the defendants' conduct is so reprehensible that they justify an exceptional penalty. The purpose of punitive damages is to punish the worst of the worst and, hopefully, deter others from acting the same way.

Since punitive damages are meant to be a punishment, the court needs to know the tobacco companies' financial status in order to be able to tell what amount of punitive damages will make them say "ouch"! (A $1 million fine might be devastating for one company but not even make a richer company break a sweat). It is up to the plaintiffs asking for punitive damages to put facts about the defendants' financial status in front of the court, so that the court can decide an appropriate amount if it decides that punitive damages are justified in this case.

So, true to form, the defendants are refusing to hand over their financial information until the judge makes them.

The industry lawyers argued that handing their financial information over to the plaintiffs now is premature because punitive damages are supposed to be awarded based on the defendant's financial status at the time of the final judgment, not the time of the trial. Recognizing that the plaintiffs have to submit all their evidence, including evidence on punitive damages, during the evidentiary phase of the trial, the industry would like to wait until almost the very end of the trial before handing over the information. They also argued that their last five years' information is too much; they only want to hand of three years of information when they do eventually have to hand it over. Lastly, they asked the judge, if he does make them to hand over the information, to require that the plaintiff lawyers keep the information from their clients.

The plaintiffs have already promised to keep the financial statements confidential when they get them, and the judge could easily and justifiably order that they be held confidentially. But by making the extraordinary request that the plaintiff lawyers keep this information from their clients, the tobacco industry is essentially asking the court to rule that le Conseil québécois sur le tabac et la santé (the Quebec Council on Tobacco and Health) and representative Cecilia Letourneau and Jean-Yves Blais cannot be trusted to follow court orders. As far as this blogger is aware, the Quebec Counsel, Mme Letourneau and Mr Blais do not have a record of prior unlawful behaviour to justify this extraordinary exception to the foundational principle of our legal system that lawyers must be completely transparent with their clients.

On the other hand, the three defendants, Imperial Tobacco Canada Ltd. (the Canadian subsidiary of British American Tobacco), Rothman, Benson & Hedges Inc. (the Canadian subsidiary of Philip Morris International) and JTI-Macdonald Corp. (the Canadian subsidiary of Japan Tobacco International), have all recently been convicted of smuggling their own products to avoid taxes. Who is the biggest risk to disobey a court order here?

For his part, plaintiff lawyer Philippe Trudel pointed out to the judge that the plaintiffs need the defendants' financial statements as early as possible to give their experts enough time to go over the information and develop a position on what amount of punitive damages is justified. Making them wait until the end of the evidentiary phase of the trial may leave them insufficient time to analyze the financial statements. There is no harm to the defendants to hand over the information right away, as long as the plaintiffs keep the information confidential, but there could be harm to the plaintiffs from getting the information late. Thus, Mr Trudel argued, the fair thing to do would be for the judge to order that it be handed over right away. Mr Trudel also pointed out that the plaintiffs have to finish entering their evidence before the defendants enter their evidence, so it does not make sense to wait until until just before the end of the defendants' evidence for the defendants to hand over their financial statements (as the defendants are proposing), because the time for the plaintiffs to enter evidence will be over.

Justice Riordan will give his decision on this issue at a future time.

And so ended the interesting part of the day. The remainder was taken up with legal arguments between the federal government and Imperial Tobacco over document disclosure, admissions, depositions of Health Canada and Agriculture Canada witnesses, and schedules and timelines for filing legal arguments.

The trial will resume in late August with the last few plaintiff witnesses agains Imperial Tobacco, after which the plaintiffs will move on to evidence against the other defendants. Thank you for following this very important trial and have a great summer (or winter if you are in the Southern Hemisphere).

By Michael DeRosenroll for Cynthia Callard

Wednesday, 20 June 2012

Day 46: If there's a contradiction, there's a contradiction

Former Imperial Tobacco marketing executive Jacques Woods arrived almost ten minutes late for his third (non-consecutive) day of testimony because he stopped in the hall just outside courtroom 1709 to have a conversation with Rothmans, Benson and Hedges lawyer Jean-François Lehoux as the rest of the lawyers and court observers sat waiting inside. When Mr Woods finally did stroll into the courtroom at almost twenty-to-ten, he stopped to greet some of the other tobacco industry lawyers with big smiles and hearty handshakes, seemingly working the industry side of the room like a politician. Once he finally settled into the witness stand, the court staff called the judge so that the day could get underway.

It didn't take long for Mr Woods to lose his jolly demeanour once plaintiff-side lawyer Bruce Johnston began questioning him. Mr Woods would spend most of the remainder of the morning frowning at Mr Johnston, the smile he had on his face while greeting the tobacco industry lawyers long gone.

Mr Johnston began by delving into the issue of whether Imperial Tobacco marketed its brands with implied health claims. Mr Woods initially insisted that Imperial never marketed its products this way, so Mr Johnston directed him to Exhibit 133. This exhibit is an April 1978 memo by Anthony Kalhok, Imperial's Director of Marketing and Mr Woods' boss, in response to a request that went to him and other senior Imperial Tobacco executives to select, from a list of fifty statements, the six with "the most important implications for the future of our tobacco business". One of the six statement that Mr Kalhok selected was option #42: "Companies will increasingly sell products for which health claims may be implied." He then wrote:
With the exception of #42, we will have to find ways and means to stall the implementation of the above or counteract their effects.
Mr Johnston pressed the witness to either provide a good explanation for what his boss apparently believed or change his testimony that Imperial did not market its products with implied health claims, but Mr Woods would do neither. Justice Riordan eventually grew impatient with the verbal dance the lawyer and witness were engaged in jumped in to cut off the line of questioning: "I don't see what trying to get into Mr Kalhok's mind is going to get us. [Mr Woods has] told you what's in his mind. If there's a contradiction, there's a contradiction."

"And I submit that there isn't", interjected Imperial Tobacco lawyer Deborah Glendinning.

"That's for me to decide," the judge replied.

Justice Riordan's intervention here pinpoints a critical issue in the case. Since the plaintiffs need to rely to a large extent on witnesses who are current and former tobacco industry executives or employees, most of whom are very partial to the defendants, there is a pattern so far of these witnesses testifying to try to minimize or deny any wrongdoing by their employers. The plaintiffs need these witnesses to get a lot documentary evidence onto the record, but they also need to counteract their minimizing or denying testimony. The main way for them to do this is to confront these witnesses with contradictory evidence, like Mr Johnston did to Mr Woods with Exhibit 133 regarding the use of implied health claims to market cigarettes. Sometimes this spurs the witnesses to change their testimony, occasionally a witness has had a good credible explanation for why the document is not what it seemed on its face but, most of the time, like in the exchange above between Mr Johnston and Mr Woods, the witness doesn't have a good explanation but won't change their story either. This is where it will ultimately fall to the judge to examine the contradictions and assess the credibility of the witnesses.

This pattern continued during the remainder of Mr Johnston's examination of Mr Woods. Judging by his words and facial expressions, Mr Woods did not seem to like being confronted with contradictions by Mr Johnston, at one point complaining that Mr Johnston's questions were wasting his time. Mr Woods seems to have a very high opinion of his own intelligence as well; at one point Mr Woods heaped praise on a former colleague as having been extremely intelligent and mentioned that he needed to ask Imperial to pay for him to get remedial statistics training to keep up with the smart young people who were coming into the marketing department in the late 1970s. When Mr Johnston summarized Mr Woods' testimony as having been that this colleague was smarter than him, Mr Woods interrupted to say "I never said he was smarter than me."

Mr Johnston came back to the issue of implied health claims by introducing Exhibits 511 and 511A. Exhibit 511 was Mr Woods' personal hand-written notes (in French, his first language) taken while going over some survey data comparing whether to market Trojan cigarettes in French as "la plus douce" (the freshest) or "la plus faible" (the mildest). Exhibit 511A was the memo he later produced on the subject (in English). Mr Woods' wrote in his notes that the survey repondents associated "la plus faible" with reduced nicotine for better health. This was the slogan he recommended.

Mr Johnston asked Mr Woods if it would be fair to say that, when he recommended "la plus faible", he did so in full awareness that some people would take this to mean it was a healthier cigarette. Mr Woods replied that, even if some people saw it that way, that was not his goal.

Exhibit 512 was a 1977 study on attitudes toward Imperial's Peter Jackson brand. Mr Johnston honed in on the following line: "Former PJ smokers could be divided into two groups. The first on (undoubtedly the largest group) remain very positive about the brand because they switched to a perceived milder brand due to health concerns." When asked by Mr Johnston if marketing had an impact on people perceiving other brands as milder, Mr Woods minimized the impact of advertising but did note that Imperial worked on developing products that tasted milder and this "seems to have succeeded with these people."

On cross-examination, Imperial Tobacco lawyer Craig Lockwood led Mr Woods to say that the reason Imperial did extensive research on teen smokers below the age of 18 was that that is the age that most brand switching occurs, so research on that age group is necessary in order to understand brand switching (although this did not explain why Exhibit 158, a test marketing plan for Player's Light codenamed "Project Huron", identified males aged 15-25 as the target audience).

Mr Lockwood also led Mr Woods to try to explain away compromising statements in memos produced when Mr Woods was part of Imperial's strategic planning group by leading him to say that ideas from the strategic planning group were often "blue sky exercises" (Mr Lockwood's words) that were never implemented.

Two Other Witnesses Return

Once Mr Woods' testimony wrapped up in the late morning, former Imperial research scientist Andrew Porter returned to wrap up his testimony as well. Mr Porter had already been cross-examined by the industry lawyers, so plaintiff lawyer Pierre Boivin was limited to redirect questioning on topics raised during cross-examination. During Imperial lawyer Deborah Glendenning's cross-examination, she led Dr Porter to minimize the health effects of smoking by pointing out that, like cigarette smoke, water and barbeque contain carcinogens. (Blurring the health risks of smoking by drawing false equivalencies between tobacco and other less harmful products, most commonly alcohol, is a common tobacco industry tactic.) Justice Riordan quickly grew impatient with Mr Boivin's questioning to establish the rather obvious fact that eating barbeque is far far less harmful to health than smoking, perhaps because by this point the morning court session was in overtime and all the talk of barbeque was reminding everyone that it was lunch time.

Mr Boivin wrapped up with Dr Porter by returning to the issue of why Imperial did not inform the public about Dr Porter's research that showed that smokers compensated for so-called light and mild cigarettes by inhaling more deeply. Dr Porter repeated his earlier answer that his audience was the scientific community, and it was the responsibility of journalists to report on the findings he published in scientific journals if they found them newsworthy.

The afternoon saw the completion of the testimony of retired Canadian Tobacco Manufacturers' Council communications officer Jacques Lariviere. A few new exhibits came in through his testimony which, at the time of publication of this blog, are not yet posted on the plaintiffs' website. Some of these exhibits had to do with second-hand smoke, which brought on numerous objections from the industry lawyers and lengthy debates over the objections. This is because the court has previously ruled that second-hand smoke is not an issue in the trial except to the extent that the industry's conduct concerning on second-hand smoke affecting smoking rates, like efforts to dismiss or minimize the health effects of second-hand smoke to make smoking more socially acceptable.

Mr Lariviere, an older overweight man who needed to sit during his testimony, seemed to struggle with having to leave and re-enter the courtroom so many times while the lawyers debated the industry objections, but he took it with good humour joking with Justice Riordan that he needed the excercise anyway. Instructions for accessing the latest exhibits can be found at the bottom of this blog entry.

Tomorrow, the last trial day before the two month summer pause, no witnesses are scheduled, but the lawyers are scheduled to make legal arguments.

By Michael DeRosenroll for Cynthia Callard

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.

Tuesday, 19 June 2012

Day 45: What is a threat?

The Montreal courthouse was alive with television crews and extra security for the arraignment of a notorious accused murderer just extradited back from Germany, but it was business-as-usual in courtroom 1709 as former Imperial Tobacco external counsel Lyndon Barnes took the witness stand for a second day.

Barnes sticks to his guns, maintains the late Dr Dunn destroyed the documents

Plaintiff lawyer Bruce Johnston began by asking Mr Barnes to clarify some of his head-scratching claims from his first day of testimony. Asked if he stood by his claim that there was "no legal involvement at all" in Imperial Tobacco's document retention/destruction policy, "other than assisting in drafting the policy", Mr Barnes conceded that paralegals from his firm (Osler, Hoskin & Harcout) and Simon Potter's firm (Ogilvy Renault) were involved in identifying documents in Imperial's possession that originated from British American Tobacco (BAT). He maintained, however, that the late Pat Dunn, then Vice President of Research and Development, was solely responsible for selecting the BAT documents to be destroyed.

Mr Barnes also maintained his denial that the objective of the policy, at least for his client, was to render the documents undiscoverable in Canadian tobacco litigation (he testified yesterday that he did not disclose the sensitive scientific studies about tobacco and health to plaintiffs in at least one Ontario product liability lawsuit as a result of them having been destroyed, since he was not required to disclose them once the only copies Imperial had access to were in the possession and control of BAT).

He reiterated again that rendering the document undiscoverable in Canadian litigation was British American Tobacco's objective when it asked Imperial to adopt the policy, just not Imperial's objective. Asked what purpose the policy served for his client, he said "it raised the whole spectre of whether there should be a document retention policy". He added that Imperial's in-house counsel, Roger Ackman, was under a lot of pressure from BAT over the issue, and that Imperial realized following BAT's request that it had acquired many documents over the years that it didn't need.

Based on Mr Barnes' testimony and his colleague Deborah Glendinning's questions on cross-examination, the key point in Imperial's defence on this issue is to emphasize that putting these sensitive scientific studies out of the reach of discovery in Canadian litigation was not their objective, even though it might have been the result of their actions. Neither Mr Barnes nor other Imperial representatives seem the least bit embarrassed that, even if you believe Imperial's theory of the case, they admit that they knew BAT's intention was to withhold sensistive studies about smoking and health and they helped anyway.

One success for Imperial on the day came when Mr Johnston raised Exhibit 68, a daily trial report from Imperial Tobacco's lawyers to company executives from the trial on the industry's constitutional challenge to the Tobacco Products Control Act from October 1989. The report, on its face, goes against Imperial's theory of the case because it calls the decision by the trial judge, Justice Chabot, to exclude the BAT scientific reports from the evidence in that case a "major victory". Mr Barnes seemed to have been waiting or hoping for the plaintiffs to raise this document, because he hastened to testify that the reason they considered it a major victory was because they thought it would get BAT off Imperial's back about the document retention policy. He denied that they thought excluding these studies about tobacco and health strengthened Imperial's case.

Faced with a witness sticking so resolutely to his position, the plaintiff lawyers needed to undercut his credibility by confronting him with facts that undermined Imperial's theory of the case and that Mr Barnes could not explain away without looking absurd. Mr Johnston scored one of these when he confronted Mr Barnes with Exhibit 297-12, a 2010 email from Osler, Hoskins and Harcourt to the plaintiffs containing answers to questions posed by the plaintiffs during pre-trial discovery. In response to a question to Imperial discovery witness Ed Ricard about why the destroyed documents were in the possession of Ogilvy Renault (Mr Potter's firm), Mr Barnes' firm wrote to the plaintiffs (on page 18 of the exhibit):

The documents referenced in ER-30 were shipped to Ogilvy Renault for review, for legal advice and in connection with the implementation of the document retention policy. (emphasis added)
Mr Johnston asked Mr Barnes if this was true. Mr Barnes said he had no knowlegde of this but, if it was an answer provided by his firm, it must have been true. Asked if he still persisted in his position that there was "no legal involvement at all" in the selection of documents to be destroyed, Mr Barnes qualified his answer with the words "that I know of".

Ms Glendinning's cross-examination of her long-time law partner might well have set a speed record. She rhymed off her questions and he rhymed off his answers so fast that Justice Riordan had to stop them at one point and ask them to repeat some questions and answers because he'd missed them the first time. Ms Glendinning had Mr Barnes re-emphasize Imperial's position that the late Dr Dunn was responsible for deciding which documents were destroyed, although this may have backfired for Imperial when it opened the door for Mr Johnston to ask further questions in response to Ms Glendinning's cross-examination; Mr Barnes had to concede in response to these questions that his only basis for asserting that the decisions were made by Dr Dunn, or someone designated by Dr Dunn, was the use of the words "in compliance with its document retention policy" in Mr Potter's letters reporting the destruction of the documents to BAT (Exhibits 58 and 59).

What, exactly, is a threat?

At the end of her cross-examination, Ms Glendinning asked Mr Barnes if, prior to Caputo (a product liability case filed against Imperial in January 1995), Imperial Tobacco was subject to any "pending or threatened litigation".

"Not that I am aware of," replied Mr Barnes.

On redirect, Mr Johnston asked Mr Barnes what his understanding of the word "threatened" was. Mr Barnes defined this as a written threat that someone was going to sue you. This is a potentially critical point because it goes to when, exactly, Imperial Tobacco's duty not to destroy documents relevant to litigation was triggered. Imperial only put a freeze on destroying documents in 1995, once it was named as a defendant in the Caputo case in Ontario (consistent with Mr Barnes' definition of "threatened"), but common sense suggests that they were aware of the litigation threat long before this, and long before they destroyed their only copies of the sensitive scientific studies on smoking and health that emanated from BAT.

As plaintiff-side lawyer Gordon Kugler brought to Mr Barnes' attention in his redirect questioning, the tobacco industry in Canada, including Imperial Tobacco, initiated the "Four Seasons Project" as early as 1985 to start planning for anticipated product liability litigation. Mr Barnes minimized this, saying that just because they conducted a planning exercise did not mean they were actually contemplating litigation. One has to wonder how much time and money the tobacco industry had on its hands in order to think it worth conducting such an extensive planning exercise for litigation that it was not, according to Mr Barnes, expecting to happen.

What did happen on February 26, 1987, still years before Imperial destroyed the documents, was that a group of Canadians called Relatives (and Friends) and Dead and Dying Smokers announced publicly that it was organizing to sue the tobacco industry for product liability. Apparently this was not considered a threat by Imperial Tobacco or its counsel, Mr Barnes.

Just over a year later, in June 1988, Roger Perron, who smoked and lost his legs to Buerger's Disease, filed the first tobacco product liability claim in Canadian legal history in British Columbia. Mr Perron's case was against RJR-MacDonald, since Mr Perron smoked that company's cigarettes, but apparently Imperial Tobacco and its counsel, Mr Barnes, did not think this represented a threat that they, too, might face such a court action. The Perron case was still before the courts when Imperial destroyed the documents, although it was later thrown out for having missed the limitation period.

Most devastating of all for Imperial's theory of the case was BAT lawyer John Meltzer's deposition, a video of which was played for Justice Riordan in court today (here is the transcript). Mr Meltzer testified that he discussed the impact that the BAT studies would have on litigation in Canada with Roger Ackman, Imperial's top in house lawyer, as well as Mr Barnes and Mr Potter, during the development of Imperial's document retention/destruction policy in 1989-90. This directly contradicts Mr Barnes' testimony that Imperial was not concerned about the impact these documents would have had on litigation within Canada, and seriously undermines Imperial's theory that it was not yet contemplating litigation when it destroyed the documents in 1992.


Tomorrow will see the return of three witnesses who have appeared previously: former Canadian Tobacco Manufacturers' Council communications officer Jacques LaRivière, former Imperial Tobacco scientist Dr Andrew Porter, and former Imperial markting executive Jacques Woods. All will make brief appearances to answer follow-up questions on their previous testimony.

By Michael DeRosenroll for Cynthia Callard

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.

Monday, 18 June 2012

Day 44 - Blame the Dead Guy

The final week of the trial before a two month summer pause began with the introduction of new witness Lyndon Barnes, former external counsel to Imperial Tobacco. Plaintiff lawyer Gordon Kugler's introductory questions established that Mr Barnes joined Ontario-based Osler, Hoskin & Harcourt (Oslers) as an articling student, straight out of law school, in 1971. He was hired as an associate lawyer in 1973 and became a partner in the firm in 1977, where he remains to this day.

Now 64 years old, Mr Barnes' thin build, neatly trimmed grey hair and prominent dark-rimmed glasses give him a striking resemblance to the lawyer in The Simpsons.

Unlike the Simpsons character he physically resembles, who speaks in a high, nasally, pretentious-sounding voice, Mr Barnes delivered most of his testimony in low measured tones (sometimes so low that he had to be asked to speak up or move closer to his microphone.) The only exceptions were the two times his testimony drew incredulous responses from Mr Kugler. Then Mr Barnes' voice would rise to a rare high note and his tone of voice would become clipped and terse, as though he were shocked and mortally offended that Mr Kugler did not seem to believe what he was saying (more on this further below).

Mr Barnes testified that he has been a litigation lawyer since joining Oslers in 1973, and started representing Imperial Tobacco, as well as its former parent company Imasco, sometime in the mid-1980s. He was co-counsel for Imperial, with Montreal-based Simon Potter, on the tobacco industry's successful constitutional challenge to the Tobacco Products Control Act in the early 1990s.

Later, he represented Imperial Tobacco on product liability cases in Ontario, including the Caputo class action, and against the Ragoonanan Estate and the McIntyre Estate. His Oslers colleague Deborah Glendinning, who is Imperial's lead counsel in the current Quebec class actions, is listed as also having represented Imperial in both the Caputo and Ragoonanan matters, and this is not the full extent of Mr Barnes' and Ms Glendinning's prior collaboration. Mr Barnes mentioned in his testimony that he worked for Imperial Tobacco on the Spasic Estate case as well. Only Ms Glendinning is listed as the Imperial's counsel in the reported judgment on that case, suggesting that their behind-the-scenes collaboration is more extensive than what is apparent from whose name appears in the reported judgments.

Mr Barnes also represented Imperial Tobacco at an early stage of the Government of British Columbia's ongoing health care cost-recovery lawsuit against the tobacco industry.

In addition to his extensive litigation work, Mr Barnes' testimony made it clear that his work for Imperial Tobacco involved attending many many meetings about litigation. Beginning in 1986, he testified that he took part in meetings of the Four Seasons Project, which he described as a "forward planning" project for the tobacco industry to prepare for anticipated product liability litigation in Canada. (See Cynthia Callard's blog entry on Day 29 for an account of David Flaherty's testimony on the Four Seasons Project).

Mr Barnes also testified that he participated in numerous meetings with the Canadian Tobacco Manufacturers' Council between 1986 and 2000. He said that they met to discuss defences to litigation, some of which were common to all the defendants and some of which were not, and that prior to 1995 they also discussed the constitutional challenge to the Tobacco Products Control Act.

Furthermore, Mr Barnes testified that he attended numerous meetings in the United States with lawyers for British American Tobacco (BAT) and Brown and Williamson (the US-based member of the BAT Group). These meetings took place in Louisville (headquarters of Brown and Williamson), Kansas City (in the boardroom of Shook, Hardy & Bacon, the firm that represented Brown and Williamson in American product liability litigation), New York and possibly Chicago (he wasn't 100% sure about Chicago). He testified that he attended these meetings with Simon Potter and Roger Ackman and that they discussed available defences to product liability litigation, expert witnesses and anything else that would be relevant to litigation. At one point, he testified, they conducted a mock jury selection exercise.

Although all the other meetings Mr Barnes talked about concerned litigation, whenever the discussion turned to the series of meetings about Imperial Tobacco's document retention/destruction policy in 1989-90, Mr Barnes insisted that litigation in Canada was not a concern at all for himself or his client with respect to these meetings.

In late 1989, BAT Chairman Sir Patrick Sheehy, BAT in house lawyers Stuart Chalfen and Nick Cannar, and Brown and Williamson lawyers David Schechter and Kendrick Wells converged on Imperial Tobacco's boardroom in Montreal to discuss changing Imperial's document retention/destruction policy with Mr Barnes and senior Imperial Tobacco and Imasco management. Mr Barnes said that BAT wanted Imperial to change its policy so that sensitive scientific studies done by BAT on tobacco and health, studies Imperial Tobacco had contributed to financially and had in its possession, from being discovered through Canadian litigation. However, he insisted that neither he nor Imperial Tobacco were concerned at all that the studies would be detrimental to Imperial Tobacco if they were discovered in this litigation. He said he did not know why the lawyers for Brown and Williamson were present, and that they were invited by BAT.

According to Mr Barnes, Imperial's Vice President for Research and Development, Dr Patrick Dunn, had three main concerns about BAT's request that Imperial destroy the scientific studies in its possession that had emanated from BAT: first, Imperial had contributed financially to the studies so he questioned why Imperial could not have copies; second, Imperial's research and development scientists needed the studies for their ongoing work; and third, he did not believe their contents would be detrimental to Imperial Tobacco in the event of product liability litigation. (The studies, which Imperial ultimately did destroy, were recovered from Brown and Williamson and BAT and have been entered as Exhibits 58-1 to 58-60 and 59-1 to 59-41.)

Mr Barnes went on to explain in detail how, just after the New Year in 1990, BAT external lawyer John Meltzer came to Montreal to review the BAT documents in Imperial's possession. Mr Meltzer brought with him a list what Mr Barnes called "sensitive" scientific studies on smoking and health that BAT did not want discovered. Mr Barnes testified that Mr Meltzer's list of was subdivided into three groups: the studies with sensitive information about tobacco and health, other studies that upon reasonable inquiry would lead someone to one of the studies in the first group, and a third group that Mr Barnes could not remember. Mr Barnes testified that, in addition to Mr Meltzer, a paralegal from his firm and one from Mr Potter's firm, Ogilvy Renault, worked on selecting the documents in Imperial's library.

Asked why two paralegals were sent to review scientific documents, Mr Barnes testified that Dr Dunn had indicated that the scientists in his department were too busy to assist.

Although Mr Barnes testified that he was the lawyer "most closely involved" in the review of the documents by the paralegals, he testified that he did not personally review the documents identified by the paralegals. (The ethical rules that apply to work conducted by non-lawyers under the supervision of lawyers generally require lawyers to frequently review the non-lawyers' work to ensure that it is performed competently.)

Mr Barnes further testified that he did not know that the documents being identified by the paralegals were going to be destroyed, only that he knew Imperial's document retention policy permitted their destruction. He said he did not become aware that Imperial had actually destroyed any documents until 1995, when he was preparing for discovery in the Spasic case. When asked by Mr Kugler if he produced the documents in that case, Mr Barnes replied:

"It would have been hard to produce documents that were destroyed."

Mr Kugler then asked if Mr Barnes produced the originals that were in BAT's possession in that case.

"No, they were not in our control or possession," Mr Barnes replied matter-of-factly.

Blaming the Dead Guy

The two times Mr Barnes got upset and raised his voice to a high note occured after he testified that Dr Dunn, who is now deceased, was actually the person who selected the documents for destruction and Mr Kugler reacted incredulously.

The first time came late in the day, after Mr Barnes had already given his detailed explanation of how Mr Meltzer, BAT's outside counsel, had come to Montreal with a list of sensitive scientific studies that BAT wanted to make undiscoverable in Canadian litigation; that the list had been divided into three groups, two of which were sensitive studies about tobacco and health and other studies that would lead to the sensisitve studies; that Dr Dunn had opposed destroying the studies because the scientists in his department needed them; and that paralegals had selected the studies from the Imperial  Tobacco library because Mr Dunn had said the scientists in his department were too busy to do it.

Mr Kugler showed Mr Barnes Exhibit 229E, a transcript of a 1998 media story in which Imperial spokesman Michel Descoteaux said "The only reason we destroyed them is because we didn't need them anymore".

Mr Kugler asked Mr Barnes is this statement was true.

"I have no reason to doubt it," Mr Barnes replied.

Mr Barnes went on to say that, since Mr Dunn had been responsible for administering the document retention policy, they would only have been destroyed if Mr Dunn no longer needed them.

"Are you telling the court that the only reason these documents were destroyed is because the Vice President of R&D at Imperial Tobacco felt he no longer needed them?", Mr Kugler asked incredulously.

"That's right," Mr Barnes replied his tone of voice now rising.

After a short pause, Mr Kugler again asked Mr Barnes who divided the destroyed documents into lists.

"Mr Meltzer provided the list," Mr Barnes reiterated.

"And Pat Dunn was provided with this list?"

"Yes he was."

Later in the afternoon, Mr Kugler asked Mr Barnes "Whose idea was it to do a new document retension slash destruction policy?"

Mr Barnes calmly replied that the impetus came from BAT.

"So Imperial had the right to go through with it or not go through with it?"


Mr Kugler then asked Mr Barnes to read paragraphs 3967 and 3968 of Madam Justice Kessler's judgment in an American action against the tobacco industry under the US Racketeer Influenced and Corrupt Organizations Act, which says:

[3967] When asked to describe the Document Retention Policy, Gulson answered:

It was the official title for what was more commonly known as the “Document Destruction Policy.” The Policy was a program to ensure that all sensitive documents, all documents that if made public or discovered in litigation could potentially damage Wills, or Wills’ affiliate companies in the BAT group, were sanitized.

To “sanitize” Wills’s documents meant to “destroy them or otherwise make them undiscoverable.

[3968] When asked about the purpose of the Document Retention Policy, Gulson responded that the Legal Department has responsibility for implementing it, and that

[t]he purpose of the Document Retention Policy was twofold, to protect the litigation position of Wills, and to protect the litigation positions of other BAT Group companies, especially our US affiliate Brown and Williamson, by ensuring that potentially damaging documents would not be discovered from Australia.

(Gulson was a lawyer for the BAT Group company in Australia.)

Mr Kugler asked Mr Barnes if he agreed that Gulson's description of the Australian document retention policy applied equally to Imperial Tobacco in Canada.

"Absolutely not," Mr Barnes said, "it was administered exclusively by the Vice President of Research." (the late Dr Dunn)

"There was no legal involvement at all, other than assisting in the drafting of the policy," Mr Barnes continue.

Mr Kugler rhymed off the names of Mr Meltzer and many of the other the lawyers whose names had previously come up in Mr Barnes' testimony about the development policy. "Didn't they all play a role in the destruction of documents?"

"No they did not," Mr Barnes said, still calm.

"They didn't?" Mr Kugler asked again, his tone of voice once again suggesting incredulity.

"No!", Mr Barnes insisted, his voice again rising defensively.

Mr Kugler elected to end his questioning of Mr Barnes with the above exchange. On Day 45, Bruce Johnston will continue Mr Barnes' questioning on behalf of the plaintiffs.

By Michael DeRosenroll for Cynthia Callard

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.  

Thursday, 14 June 2012

Day 43 : The man who saw so much (but remembers so little)

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

Thursday, June 14 was Jacques LaRivière's second day of testimony at the Montreal trials of the tobacco class actions, and it is hard to imagine a more uncomfortable witness.

The questions put to him by plaintiff lawyer Philippe Trudel were for the most part quite straightforward (do you remember this document? what did you mean by this word?), and always presented in a cordial and respectful way. Nonetheless, Mr. LaRiviere looked like he felt trapped in a situation where, as in a Monty Python sketch, the wrong answer would send him catapulting into the distance. He paused. He muttered under his breath. He scrabbled through the heavy binders of documents in front of him. By the afternoon, he reverted more often and more quickly to denying any knowledge or memory.

Mr. LaRivière had been scheduled to testify for two days, but by the middle of this second day it was clear that more time was necessary.  When being told at lunch that he should expect to be recalled for a third day, he shook his head violently at the plaintiff's bench. The cross-examination that had been expected today will not happen until next week, or possibly later.

Despite his reticence, the man who managed communications for the Canadian Tobacco Manufacturers Association from 1979 to 1994 provided some of the clearest testimony todate on some of the key issues before the trial.


The first topic raised by Mr. Trudel was the CTMC's position on addiction. Mr. LaRivière explained that the view of the CTMC was that addiction as an inappropriate word, and that persons who had smoked for a very long time were able to stop cold turkey, which is a negation of addiction.  He could not recall any point in time that the CTMC acknowledged that smoking was addictive.

That does not mean that Mr. LaRivière did not work on addiction issues, however. In the run-up to the Surgeon General's 1988 report on the topic, it was Mr. LaRivière's job to send out speaking lines to his tobacco company members  (Exhibit 487) and to help their funded scientist, Verner Knott, participate in ARISE, an international front group for addiction issues (Exhibit 489).

CTMC's youth prevention programs

One of the activities launched by the CTMC during Mr. LaRivière's time was retailer-directed activities at not selling cigarettes to young persons. Yesterday, the trial had learned that the CTMC did not think such programs were very effective, but in the lead up to the passage of Canada's first tobacco laws (C-51 and C-24) wanted to introduce them as a "symbolic" gesture that would give it some control and maybe forestall legislation. (Exhibit 479U).

When the program was set to launch in May of 1988 (Exhibit 497V), the program had settled on the age of 16. Given that Mr. LaRivière had clearly stated that smoking was an adult decision where the meaning of adult was 18 years old, Mr. Trudel wanted to know about this discrepancy.

JR Q. Were the programs and age limits initiated with the understanding to prevent youth smoking for people under the age of 16?
A. That is what I deduce from these statements.

PT Q. How can you reconcile that with the fact that smoking is an adult choice?
A. It was always my belief that adult and 18 went together.

PT Q. If you wanted to prevent youth smoking, wouldn’t you prevent those under the age of consent for informed decisions from smoking?
A. That would seem to be a reasonable statement, yes.

Health Warnings

Under pressure of federal action, and with complaints about the CTMC was reviewing new health warnings, Jacques LaRivière was at the centre of a discussion among tobacco companies about new health warnings. In 1985, he circulated some proposed new warnings and raised the "strategic and tactical" question: Is there agreement that the harshest warning is to be used on billboards, the second harshest in magazines, the third harshest in newspapers-and the mildest on P.O.S. material?

Mr. Trudel wanted to know why it was strategic or tactical to put the harshest warnings on billboards. The witness danced around the question, and Justice Riordan intervened to repeat the question.

Q. Why would the harshest be on billboards. 
A. I don’t recall what the reasoning was

Q. Wouldn’t it be to limit the impact?
Q. Limit the impact of the warnings! By using the harshest warnings on the largest medium!? Billboards are huge!

Q. Do you remember that the warnings on billboards were 4 inches high?
A. No I am not a marketing person
Mr. LaRivière was reminded of a memo he had circulated that contained health warnings in other countries  and asked whether he knew any of the health facts presented in those warnings to be true. No, he did not know that smokers were more likely to have ulcers. No, he did not know that smoking caused hardening of the arteries and coronary occlusion. No, he did not know that smoking while breast-feeding was recommended against. His 1985 memo (Exhibit 491) is a reminder of how far behind European countries Canada was at the time, and his testimony yesterday undermines the industry's suggestion that "everyone knew" the health effects.

Recruiting third parties: economic dependants

One of the CTMC's political and government relations activities was its parliamentary liaison program, the purpose of which, as Mr. LaRivière put it, was increasing knowledge of sitting MPs and MLAs of the tobacco operations in their ridings, highlighting the economic impact, etc.

Again, the industry worked to have its message delivered by third parties -- in this case the growers, factory workers, unions and other economic dependants. But for the industry's script to be delivered, it had to be written down. The script written for these messengers a clear synopsis of the industry's position on key issues. (Exhibit 490, 490A, 490B)

To this day, there is no scientifically-established proof of a causal relationship between some diseases and smoking. ...

Nothing so far proves that passive smoke is dangerous for the healthy non-smoker, although it may be annoying in a poorly-ventilated place.

The CTMC commissioned its own public opinion polls on government policy. One of these, reviewing public views in 1994 on a variety of policy issues was made public today this week. (Exhibits 495, 496, 479 L)

Recruiting third parties: the Smokers' Freedom Society

One of the first issues raised with the first witness in this trial (Mr. Descoteaux) concerned the origins of the Smokers' Freedom Society, and its independence from the industry.

The first president of the society, Mr. Michel Bédard, testified earlier that the idea of the project came from his discussions with Pierre Lemieux. Mr. Descoteaux also gave the impression that the society was at least somewhat spontaneous in its development. The distinction was particularly important in the role the society played in presenting an independent rebuttal to science (of addiction) and public policy (economic impact of smoking).

The evidence from today suggest that the whole project was dreamt up at the CTMC, and that Mr. Bédard was one among other candidates for the job. Minutes from CTMC public affairs meetings (Exhibit 479K, 479L, 479O, 479P)

Recruiting Third Parties: Advertisers
In the 1980s, with attitudes against tobacco promotions hardening, the CTMC worked to put up an advertising front against such measures. Their core message against ad bans had been presented in a brochure (Exhibit 497). But Jacques LaRiviere and Keith McKerracher (of the Institute of Canadian Advertisers) were dissatisfied. The style of intervention adopted thus far has been ineffective. It is repetitive (boring) and has no emotional appeal. (Exhibit 493).

McKerracher, who supported the tobacco industry's position vigorously during the 1980s, had a firm message for the CTMC if it cared whether advertising is banned. The tobacco industry had to demonstrate its "commitment and coordination" before the advertising industry would "invest time or money".

Eventually, a coalition was built with advertisers and the sponsored events. (Exhibit 498).

Preventing smoking bans in Quebec

The trial has mostly heard of attempts to forestall federal regulation, or relations between the tobacco companies and the federal government.  The careful watch on and effective lobbying of the Quebec government surfaced today.

In February 1981, the "first few meetings with Quebec civil servants" regarding Quebec's anti-tobacco policy were held. (Exhibit 505).  In a letter to Mr. LaRivière, Mr. Descoteaux discerns a fault line between the economic ministries and the social ministries -- he also finds hope in the decision of Minister Lise Payette to step down. She remains ultimately responsible for the progression of the anti-tobacco proposed policy towards cabinet approval, and her decision to quit politics appears certain to undermine her "weight" in Cabinet.

With a new minister on the file in June of 1981, Jacques LaRivière reports on attempts to get a meeting and that tobacco issues would not be considered that spring. (Exhibit 506). In June the next year, a meeting was held with the Minister of the Environment (Marcel Léger). The Minister had a bill in mind (on public smoking), but was also interested in non-legislated approaches, like a 'courtesy' campaign. (Exhibit 507).

The next year, a new Minister, seemed less of a threat.
Mr. Ouellette, a cigarette smoker, is affable and pragmatic. He made what was perhaps the most significant statement very early during the conversation when he said that «while the civil servants were very advanced in the drafting of a Bill, I have just begun the process of reflexion and consultation and we are still a long way from legislation.» (Exhibit 508).

Within a few months, the proposed bill on smoking bans was apparently dead. "It was reported that Environment Minister Ouellette indicated there is no plan to legislate this. It is not a priority for the Quebec government." (Exhibit 479G)

A rich documentary resource

The testimony of these CTMC officials is quite a rarity in Canadian public affairs. The CTMC had not been involved in either of the constitutional challenges against the federal tobacco laws, and therefore had not previously been exposed to document discovery or examination in court.

The extensive documents from the CTMC that have been produced in this trial provide a rich insight into how business corporations cooperate with each other with significant creativity in order to defeat regulations aimed protecting the public from the negative consequences of their enterprise.

On Thursday, the exhibit numbers hit the "500" mark, and a little cheer was heard in the court room.  "Let's go home!" someone (on the defence side) suggested. In fact, more than 800 exhibits have been entered to date. Lots of summer reading!

Next week, Mr. Lydon Barnes will testify. He was outside counsel to Imperial Tobacco at the time of document destruction.  Also scheduled to re-appear are Dr. Porter, Mr. Woods and, possibly, Jacques Rivière. 

Also next week is the return of blogger Michael DeRosenroll. Welcome back!

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.

Wednesday, 13 June 2012

Day 42 : Jacques LaRivière

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

The first time that the trial of the Quebec class actions against tobacco companies heard about Jacques LaRivière, it was from the former president of Imperial Tobacco Canada Ltd., Mr. Jean-Louis Mercier.

He was an amazing guy, Mr. Mercier said. It is rare in life that you meet a guy as bilingual as him. He was a guy from Manitoba with a French name, LaRivière, who had worked at both Radio-Canada and CBC - he worked in both languages. He was the spokesperson for the Canadian Tobacco Manufacturers' Council. It was his job to meet the media when there was a press meeting - all those sorts of things he handled.
(Unofficial translation)

Today, not quite two months later, it was Mr. LaRivière's turn to be questioned on the operations of the industry's trade association, the CTMC. He is the second witness from that organization to ever testify at trial (Bill Neville, the former president of the CTMC, had testified on June 6 and 7).

Mr. LaRiviere is one of the older generation of tobacco industry officials who have testified at this trial. More than 30 years ago, in 1979, he was assigned to the CTMC account when he was working for the Montreal public relations firm Public and Industrial Relations (PIR), but became an employee of the CTMC when it was transferred to Ottawa in 1984. He retired from the CTMC in 1994.

Jacques Lariviere explaining in 1985
that second hand smoke is a ventilation
issue, not a health hazard
Jacques LaRivière is too large a man to be described as healthy-looking, and he referred to hip problems when accepting the offer to sit while testifying. Nonetheless, there are many his age (78) who would envy his physical and mental state. He does not look so very different than he did when he appeared on CBC's The Journal more than 25 years ago.

Hearing him speak, it is not surprising that he is a former radio man. His voice remains robust, and unlike most witnesses he knows how to use a microphone. He uses his voice with deliberate expression - emphasizing words and putting a melodic flow to ideas he wants to emphasize. He knows how to tell a joke to break the tension and attempted to do so a few times in the morning. His voice was also expressive in an unintended way - audible sighs and long pauses suggested that over the day he found the experience of testifying increasingly taxing.

I have reached the age when memory is the faculty that forgets, he said soon after Philippe Trudel began asking about the dates Mr. LaRiviere began to work for the CTMC. Other than dates, however, he expressed few reservations about his power of recall and seemed certain of either knowing or not knowing the answer to a question, remembering or not remembering a document placed before him.

His work at CTMC was primarily communications, he explained. The job of a communications officer requires a lot of repetition, and many of the answers that Mr. LaRivière provided had the air of long-practice.  What was the  mandate of the CTMC? To protect the rights of the manufacturing sector of the industry and to communicate to interested parties the purposes of the council.  What were those rights? To produce a legal product which was also legal to sell and legal to use.

The CTMC denied that smoking caused illness and disease

One of the most frequently asked questions at the time Mr. LaRivière was managing communications for the CTMC was whether the tobacco industry accepted that cigarettes caused disease. Today, Mr. Trudel asked this question in several ways. After a few false starts, this witness gave a clear answer that the industry had denied causality at the time of his employment.

Q. Does tobacco cause death or disease?
A. There are circumstances, I supposed – yes – there is an acknowledgement that there is a risk involved and that risk can lead to disease.

Q. Was tobacco consumption a cause of illness and diseases? Did the CTMC acknowledge that when you were there?
A. I do not believe that they did.

Q. Did they deny it?
A. I remember a denial of the causal relationship at one point in time, yes.

Q. ...All of the time you were there?
A. That may be accurate.

Q. Do you know the reason for the denial?
A. The example that comes to mind is the statement that smoking causes cancer.  If that is the case why is it that people that smoke all their lives do not get cancer.

Q. This is the logic behind the position?
A. No... the statement that was made was an absolute. "Smoking causes cancer."

Q. If the statement is "smoking causes cancer in certain persons" – you would agree with that?
A. I don’t have the medical background.

Q. What about the CTMC? Was the CTMC in agreement with the statement at the time you were there?
A. I do not recall that.. (he shakes his head)  No.

The unread voluntary code

The trial has heard repeatedly of the voluntary marketing code (1984 version, Exhibit 20004) that the industry first adopted in the early 1970s in part to head off regulation by government. One of the most surprising bits of Mr. LaRivière's testimony today was that he had not read the document, and was not familiar with the versions that were renegotiated during his time at the CTMC.  Repeated questions on the topic by Mr. Trudel - separated by some hours and a break -- suggest that this admission was not a slip of the tongue or a misunderstanding. (The code is 19 short paragraphs and 3 pages long.)

CTMC Voluntary Code - 1984
Mr. LaRivière's responsibilities with the code were focused on section 11 (regarding how close to a school a billboards near schools - he said his interpretation as that the prohibition extended to traditional billboard and also to exterior signs on stores). How he could have avoided being intimately acquainted with this important short document remains a mystery.

From the documents produced today, it would appear that on more than one occasion it was up to Mr. LaRivière to pass complaints about violations of the code to the companies responsible. A series of complaints were filed by the Non Smokers Rights Association (Exhibit 480, 480A and 480B, not yet available). As with other complaints (Exhibit 482, not yet availble), the CTMC was powerless, it appears, to make sure the code was enforced.

Q. Am I right to say that the CTMC was powerless with respect to the voluntary code? 
A. It was adopted a long time ago and it dealt with complaints of one manufacturer to another.

Q. You were receiving complaints from public and were passing them around, but had no authority over them?
A. That would be the appropriate word under the circumstances.

RJR/JTI Macdonald
1985 ad for
Tempo cigarettes 
Mr. Trudel wanted to know what would happen if all the members were violating the same rule, and there was no reason for any one company to complain against another? The question was considered too hypothetical, so he asked directly. Did everyone advertise to kids under 18? Mr. LaRivière answered emphatically. They did not!

As the front-line communicator for the CTMC in 1985, when complaints were piling up about RJR's ads for Tempo cigarettes, Mr. LaRivière's firm answer seemed more than a little defensive.

A warm body

To this observer, the hoops that must be run to have documents accepted as evidence seem on occasion to have perverse effects. One of those effects is that a witness must be on hand for some documents to become part of the trial record and evidence. Fortunately for history, Mr. LaRivière is still alive and well enough to come to the trial, which allowed a couple of dozen records of CTMC meetings to be made public.  These were entered as Exhibit 479, 479A, 479B, 479C, etc. An ordered list will be posted on this blog when the set is released.

"Incomplete" answers

When the court resumed after the lunch time break, Mr. LaRivière looked even more ill-at-ease.

Mr. Trudel asked him for the second time about measures he had taken to prepare for the testimony. In the morning he said he had read the documents that had been sent to him but that nothing [else] came to mind. 

This afternoon the question was more direct - did you meet with anyone? - and the answer was different.  I met [last night] with some of the lawyers who explained to me the format of the hearings.  Any conversations by telephone prior to that? Yes. When? A long pause before Mr. LaRivière answered Yesterday afternoon. They told me that some new documents would be introduced today, but they did not tell me what.

An hour or so later, Mr. Trudel returned to the issue of conversations with the industry's lawyers, asking whether the witness had spoken to Ms. Glendinning during the afternoon break.

Witness contact with defense lawyers has only infrequently been spoken of during this trial, and three references during one day suggested that something was up. Another sign of something out of the ordinary was the prolonged huddle of industry lawyers in the corridor during the afternoon break.

Whatever it was seemed to have broken the cease fire that had recently settled over the court. The hackles of plaintiff and defence lawyers were up. Sharp words were spoken and words were spoken sharply. For the first time, Justice Riordan asked the (typically very polite and measured) Mr. Trudel to calm down: Slow down. Roll back a bit and then go forward.

At the end of the day, Simon Potter (representing RBH but apparently speaking for the defence coalition) waited until Mr. LaRivière had left the room before asking guidance on how to return to question put to the witness for which the answer could be more complete.  We don’t want to sit on our knowledge but we want to do it without interfering with what goes on. 

The mystery may be resolved when the industry lawyers have an opportunity to put questions to Mr. LaRivière, which is expected to happen tomorrow.

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.

Tuesday, 12 June 2012

Day 41 : Market-share driven. Even to kids

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

Jacques Woods, the never-smoker who spent the first ten years of his marketing career at Imperial Tobacco, made his second appearance at the Montreal class action trials this morning.

Jacques Woods
Even at the age of 62, Mr. Wood could be described as a "strapping lad." In a notably gentle voice he provided direct and succinct answers to the questions that were put to him by plaintiff lawyer, Bruce Johnston. The morning passed in a smooth and mostly uninterrupted succession of questions and answers, many of which were focused on his verifying documents so that they could be entered into evidence.

His written work from the period, and his answers to questions about marketing today, show a detailed understanding of brand development and marketing. (See for example, Exhibit 474 in which he reaches out to a consultant formerly with from Imperial's ad firm Spitzer, Mills and Bates).

In 1980, he was selected to present the story of Imperial Tobacco's success to a BAT marketing conference. (Exhibit 299) Reflecting on the presentation today, he attributed ITL's marketing success to its approach to its customers. The whole point was to listen to consumers. Don’t sell them what you think they should have. Listen and sell them what they want. 

People differ, so selling people what they want requires a range of products that are tailored to different market segments he explained. Segmentation is a core strategy, understanding segmentation better than your competitors allows you to come with better marketing approaches and brand building strategies. 

Bruce Johnston asked whether providing smokers what they wanted meant selling them cigarettes they thought were safer. Jacques Woods didn't simplify what he saw as a more complex set of smoker needs, but in the end it seemed to boil down to the same thing - lighter cigarettes responded to the needs of smokers who wanted less. More and more the numbers became a point of reference for people.  I remember people looking at the side to see what was different in the products. ... Some people felt guilty. Some people felt it was dangerous. Probably for them [lower numbers] equated to being safer.

While Mr. Woods was at Imperial Tobacco he directed work to ensure that the package and product were coherent, and that other visual cues about taste and strength were on the package. (Exhibit 463, 465). It was important, Mr. Woods said, to make sure that the perception you had visually matched the smokers experience.

During his first appearance on May 28th, Mr. Woods had said emphatically Imperial Tobacco's policy was to never direct its marketing to youth, and that this policy was part of the reason he felt comfortable working with the company. (His concern for children is reflected in his current volunteer work with Breakfast Clubs of Canada).

That policy, and his execution of it, seems more nuanced in light of today's testimony. A number of documents showed Mr. Woods at the centre of research directed at children as young as 16 (Exhibit 464, 466, 304).

The reason it was okay to research on people as young as 16, as he eventually put it, was that kids were making brand decisions before they reached the age of 18, and Imperial Tobacco did not want to lose out on future business that represented. We had seen in prior studies that smoking was starting pretty young and brand choice consolidation starting at that time. It is probably for that reason that it was explored.

If a 16 to 18 year old was smoking, you wanted a 16 to 18 year old to smoke an imperial brand?

Projet Jeunesse

Imperial Tobacco's Project 16 (Exhibit 142 B), which researched the smoking habits of young Canadians gained some notoriety after it was made public during the 1989 trial of the Tobacco Products Control Act. During this trial, a sister study on Quebec youth, Project Jeunesse, has come to light. Lo and behold! Mr. Woods was at the centre of this research project.

In 1977, he explained the rationale to the consumer research firm, Multi-Réso: Whereas smokers used to start around the age of 20, the average age of starting is now slipping below 16.  We have the impression that today a smoker of 16 or 17 years has already quite a history. He may be started to smoke during or even before puberty and he has already started to change brands as a result of unknown factors to do with the image or characteristics of products. (Exhibit 301B, translation).

The firm reported to Jacques Woods a research protocol (Exhibit 301 C), and the recruitment of 16 and 17 year old high school students (Exhibit 301 D). The report that was delivered has been discussed briefly before in this trial (Exhibit 301, 301 E, 304).

Like Project 16, it is a harsh condemnation of smoking by very young smokers. These high school students saw themselves as slaves (esclavages), and drug dependants. Mr. Woods remains unfazed by the results. This seemed to be normal behaviour of various age groups – it was 'same old same old.' Probably if we did the study today we would find the same things.

If there is one reason that they are negative about the cigarette, it is because it erodes their autonomy, the report concludes. One theme that would be very effective in an anti-smoking campaign directed to this group would be that of slavery to cigarettes. (Exhibit 304, translation)

Jacques Woods was asked if the information was ever shared with government, to help it design better anti-smoking campaigns for youth, but deflected any responsibility to do so. I don’t know. I don’t know whether at the CTMC level they were sharing research.

At lunchtime, Mr. Woods testimony had almost concluded. Because the trial unexpectedly did not sit this afternoon, he will likely continue his testimony for about an hour tomorrow. After that, Jacques Lariviere, formerly of the Canadian Tobacco Manufacturers Council, 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.

Monday, 11 June 2012

Day 40 : Parliamentary Privilege

When the trial of the Quebec class action suits against tobacco companies resumed this Monday morning, Montreal was recovering from the Grand Prix weekend that is the traditional start to this city's summer festival season.

This year, the spotlight was on student protests against an event labelled as “sexist, elitist and polluting” and media interest in the students' decision to march nude overtook coverage of the race.

Times have changed. 

Grand Prix 1998
It is not that many years since Montrealers were in the street protesting for the Grand Prix.

In 1997, taxi drivers and other 'small businesses' locked down the city temporarily to voice their opposition to the proposed federal law to end tobacco sponsorship (as a result of a threat of F1 organizers to remove the Grand Prix from Montreal, the ban on sponsorship promotion was delayed by a few years).

In those days, the Players' Grand Prix was an untouchable icon of Quebec tourism. Imperial Tobacco's blanketing of the city with promotion of the event/brand was welcomed by many as a contribution to the festival atmosphere. The City of Montreal and the Government of Quebec twinned their logos with those of a cigarette brand.

This year, almost 14 years since these class actions were filed, the Quebec government chose the Friday of the Grand Prix weekend to slap the tobacco industry with a $60 billion lawsuit.

Picking up where they left off six years ago

It's hard to know whether any of the lawyers assembled in courtroom 17.09 this morning had spent much time at the racetrack on the weekend.

On the one hand, those thick books of authorities don't produce themselves! On the other hand, the parties have had more than 6 years to prepare their arguments for today's hearing on the legally exotic question of parliamentary privilege  and how it relates to this case.

In 2006, the tobacco companies had argued before Justice Carole Julien, among other things, that since parliamentary immunity would make it impossible for some allegations to be proven, such sections of the statements of claim should be struck down. In his decision, Justice Julien reflected a bit on the nature of parliamentary privilege, but left to the trial the decision on any specific parts of the claim.

Today was the day for the debate. The core question was whether the companies can have their words before various parliamentary committees held against them in this trial.

Guy Pratte: defender of public witnesses

Canadian Lawyer 2008
When JTI-Macdonald signed Guy Pratte (of Borden Ladner Gervais) to their team, they engaged one of the more experienced defenders of witnesses before tribunals. "Today I find myself representing people who are embroiled with public inquiries, parliamentary or otherwise," he told the Canadian Lawyer in 2008.

His clientèle is diverse. Before commissions of inquiry, he has represented both Conservative Brian Mulroney and Liberal Jean Pelletier. In court, he has stood for both the Canadian Medical Association and his current tobacco client, JTI-Macdonald.

Mr. Pratte apparently keeps an open mind on the question of parliamentary immunity. Before the Gomery Inquiry he argued that parliamentary privilege should not prevent a witness (Chuck Guité) from being cross examined about his testimony before a parliamentary committee. Today he took a very different position.

Parliamentary immunity cannot be waived (except by Parliament)

Mr. Pratte had the responsibility for expressing the core views of all three companies. It took the bulk of the morning (including many initial interruptions from Justice Riordan) to present their case.

Guy Pratt appealed to the constitutional role of parliamentary privilege and its basis in the 17th century British Bill of Rights provisions that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." As such, allowing this trial to consider statements given by tobacco companies to parliamentary committees would be a threat to democratic principles of freedom of speech for parliamentary witnesses.

It wasn't enough to protect the tobacco companies from repercussion on anything they said to Parliament, Mr. Pratte argued, it was also necessary to prevent all of the preparatory work (like planning documents, records of meetings, etc) from being put on the trial record.  The privilege should be extended to all of those who worked with the tobacco companies and the witnesses they recruited to support their views and these other submissions to Parliament.

The law prohibits the use of any of this parliamentary material to support allegations of liability or to impugne credibility, he said. The fact that the industry circulated their parliamentary briefs was irrelevant, he suggested, as dissemination did not "waive" the privilege. There are limited situations where parliamentary privilege does not apply, he said, but they were not applicable to this case.

Lawyers for the other two tobacco companies supported his views. On behalf of Rothmans, Benson and Hedges, Jean-Francois Lehoux spoke only briefly. The sole purpose of introducing the material was to harm the defendants' position, he said, and therefore directly against the principle of parliamentary immunity.

On behalf of Imperial Tobacco, Suzanne Cote emphasized that any actions taken by tobacco companies after their testimony could not be viewed as weakening their right to immunity."Only Parliament can waive privilege – that means that anything that a witness says or does cannot be seen as a waiver of privilege." 

She outlined the wide scope of records she wanted protected. In addition to any verbatim records (like Hansard), she also felt that immunity extended to documents submitted to committees, any preparatory material, newspaper reports on events in Parliament, and newsletter or other communications material produced by the companies related to their testimony.

Parliamentary immunity can be lost. 

On behalf of the plaintiffs, André Lespérance presented during the afternoon the reasons why the roughly forty documents under question should be admitted to the trial, and the discretion on how to interpret the application of immunity to their contents left to the judge.

Like Mr. Pratte, Mr. Lespérance has perviously dealt with the issue of parliamentary privilege in the Gomery Inquiry.  (He represented the Attorney General of Canada on the unsuccessful attempt by Alphonso Gagliagno to get a Federal Court judicial review of Justice Gomery's ruling that Guy Pratte could not cross-examine Chuck Guité -- it's a small world).

Mr. Lespérance provided a more tempered application of the principles of parliamentary immunity, and to the application of the concept that only Parliament can waive privilege. He pointed to many occasions in which courts cite parliamentary evidence as a context-setting historic fact, including the citation by the Supreme Court of Canada of speeches by Jake Epp. He noted that the tobacco companies had included parliamentary citations in some of their filings and said that allowing reference to some testimony and not others would not be balanced.

The challenge, said Mr. Lespérance, is determining where parliamentary immunity begins and where it ends. He suggested that the case law was not yet well established and that there were gaps ('lacune') that needed to be filled. He noted that the United Kingdom had introduced a Defamation Act to clarify the limits of privilege.

Mr. Lespérance said that the tobacco companies had proactively repeated outside of Parliament what they had said inside, and by doing so they had lost immunity. Under such circumstances, the need for Parliament to waive immunity didn't apply.

Nonetheless, the plaintiffs needed to be able to introduce the parliamentary records to establish historic fact, to help establish the position of the companies and to contribute to the determination of punitive damages.

For most of the day, Justice Riordan had said little other than to clarify page references or document sources. After Mr. Lespérance moved back to his seat, the Judge looked down and asked, almost as an afterthought, if Mr. Lespérance had requested Parliament to waive its privileges in this case. The answer was not entirely audible to the back of the room, and may not have been to the judge either, for he asked again:

Justice Riordon: It strikes me it might be in your interests to do so (ask Parliament to waive privilege). Have you?
André Lespérance: No.

Renunciation and repetition different concepts

The federal position was represented by a new face to the trial, Mr. Jean-Robert Noiseux from the Attorney General's office. The federal government supported the position of Mr. Lespérance and repeated the view that while only Parliament can renounce parliamentary privilege, once a person decides to repeat outside the House of Commons what they said inside, they lose the benefits of the privilege.

He provided additional authorities, including the memorable case of André Ouellet, then Minister of Consumer and Corporate Affairs. (Mr. Ouellet was held in contempt of court after repeating outside the House his view that a judge's acquital of sugar companies on charges of price fixing was a "silly decision".) Mr. Noiseux pointed out that the courts had ruled that MPs mailings to constituents ('householders') did not benefit from parliamentary immunity. As Mr. Lespérance had done, he went through specific documents in question to suggest why each should be admissible. Mr. Noiseux concluded by recommending that decisions be reached on a document-by-document basis.

During the replies from each side that closed the hearing, Guy Pratte cautioned against a blanket introduction. Suzanne Coté characterized repetitions outside the House as being extensions of parliamentary testimony, and therefore also privilege. Mr. Lehoux forcefully, but briefly, expressed his views that the documents in question be struck down immediately.

In this closing section, Justice Riordan hinted that a document-by-document decision may be required. "It’s a document by document process...  we can't really do anything else."

Filling the void

In making his ruling on Chuck Guités testimony, Justice Gomery had noted that 'One of the difficulties I have in deciding whether to maintain or dismiss the objection is that there is no Canadian case directly dealing with the issue."  Whatever the outcome of today's hearing (including the inevitable appeals!), it will help fill that void.

A little light reading.

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. English Bill of Rights, 1689

Tomorrow, Mr. Jacques Woods will return to the stand.