Monday, 4 June 2012

Day 36: The New Girl

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

It was business-a-little-different-than-usual when the trial of the Montreal class actions resumed this Monday morning. The atmosphere, which during last week's focus on science had been restless, was today markedly on edge. Everyone seemed to be walking on eggs.

The nervousness may have been due to the fact that the witness, Ms. Marie Polet, is the first company president to appear. Or it may have been because she is an unknown quantity to most in the room, having arrived in Canada only 8 months ago and having kept a very low public profile.

Marie Polet is no ordinary immigrant. She 'began at the top' at ITL even though she had no previous experience in Canada. (She had worked for 30 years in the marketing branches of European offices).

There are a few reasons why a company might want to vault a complete unknown into a top position. In this instance, it is hard to ignore the fact that Ms. Polet arrived in Canada just as this trial was originally set to begin (October 17, 2011), and while Imperial Tobacco was facing the unhappy prospect that its then-president, Mr. Ian Muir, would be forced to testify.

By giving Mr. Muir an early retirement and allowing him to return to England (beyond the reach of a subpoena), the company indirectly achieved its objective of blocking his testimony. By replacing him with someone with even less institutional memory, they effectively removed the company's rear-view mirror.

Marie Polet at BAT Denmark
If Ms. Polet was part of some elaborate corporate intrigue, however, she does not look the part. Like a "sensible girl" grown into middle age, she dressed today in a conservative black jacket, tan skirt and black stockings and shoes. Her chin-length black hair has not yet been allowed to grey, yet she wore no discernible make up. She kept at her side at all times a purse worthy of Margaret Thatcher.

Marie Polet's voice and diction were clear enough to be heard easily across the courtroom. She has a warm, friendly voice and a gentle affect which somewhat disguises her unyielding non-answers.  Although she also speaks French (German is her mother tongue), she asked to testify in English as most of the witnesses have chosen to do.

Kid glove treatment.

Earlier in the trial, Justice Riordan had suggested a kind of equality in his courtroom (Whether he's a CEO or the janitor, it doesn't really make any difference to me, except for the fact that it's harder to schedule a CEO than a  janitor, he said on May 8th). But soon after Ms. Polet began her testimony, it was clear that different rules applied to this witness than those who had come before her.

From the outset, Bruce Johnston was signalled that his leash with this witness was very short, and several times in the day his questions were blocked. It must have been gratifying for Imperial Tobacco lawyer, Deborah Glendinning, to have so many of her objections agreed to by the Judge while her client was on the stand. But it was not only the judge who treated this witness differently. Lawyers from other companies (Simon Potter for RBH/Philip Morris and Guy Pratte for JTI-Macdonald) stood more frequently to defend her from questions.

Even in the corridor, there were people looking out for her.  It was not clear whether the plain clothes security that accompanied her were provided by the company or the court, but they were seen working with court employees to help Ms. Polet slip out through a back entrance and avoid the media.

The woman who knew too little

There are many ways of not answering questions, but one of the easiest must be to make sure you don't know the answers. Ms. Polet is studiously unstudied: there is much about Imperial Tobacco that she has arranged not to learn.

She reported that she had prepared for her testimony in two meetings with lawyers, each of which was only 3 to 4 hours long. She said she had read the two binders of materials provided to her, but seemed to recognize none of the documents when they were brought forward for questions.

There was an element of surrealism as this president of a billion-dollar business facing a multi-billion dollar claim presented neither knowledge of or interest in the proceedings. In response to Bruce Johnston's questions she explained: My role is not to rewrite the history. My role is to manage the company going forward and so the answer is I didn’t go into any of those questions. 

Are you aware that you are the only representative of ITL  that has testified in this case so far?

As president of Imperial Tobacco, Mme Polet, did you know think it would be appropriate to inquire about the truth of the allegations before coming to court?
I didn't spend time inquiring about that.

Why not?
Because I have just arrived recently. This is important but there are a lot of other responsibilities that I have and that is the reason.

The woman who doesn't want to know more

Ms. Polet was also unaware of the challenge Imperial Tobacco and other companies had filed against the Tobacco Products Control Act but would have learned something of it today when Bruce Johnston asked her about comments included in the 1995 Supreme Court ruling (Exhibit 75), including reference to the premature death of over 30,000 Canadians a year.

Does ITL agree with those numbers?
We don’t know these numbers exactly. There are no means to validate or to deny these numbers.

There are no means? Can you explain that?
We aren’t in a position to say that these numbers are right or to deny these numbers. No information that we have that allows us to do that.

What information would you need?
We aren’t experts. I am certainly no expert in that matter. I acknowledge them, but I cannot validate them or verify them or deny them.

Is there anything barring Imperial Tobacco from hiring an expert?
 I don’t see a reason why we should question the heatlh authorities and what they are saying about it.

Ms. Polet testified that Imperial Tobacco no longer had experts on staff that could offer any expertise.  The scientific advisory positions at Imperial Tobacco and the research laboratories have been shut down. (This was news to many of the room - as earlier testimony suggested that research was continuing at ITL, and as the company had responded in its pre-trial undertakings that there were five PhD level research scientists at the company. (Exhibit 297-1))

The woman who refused to be pinned down.

Mme Polet brought to this trial a refined state of non-knowledge. There were many occasions during the day when she would respond to a suggestion or question by neither agreeing nor disagreeing, but by combining two apparently opposing positions into an internally incoherent reply.

1994 BAT Position on epidemiology
Bruce Johnston showed her a 1994 public position statement written by BAT on the "Smoking Controversy" (Exhibit 409) which would be considered a text-book case of industry disinformation within the public health community in its framing of epidemiology as insufficient to prove causality. She disagreed with Bruce Johnston's suggestion that the paper was intended to cast doubt on epidemiology, and said instead that the conclusion is that smoking is statistically associated with disease – BAT has not denied this.  

When she was shown a memo from the highest level BAT leader (Sir Patrick Sheehy) to the highest level Imperial Tobacco boss (Purdy Crawford) on the preference of the parent company for research that was aimed at making smoking acceptable to authorities and the folly of focusing on a 'safer cigarette' (Exhibit 255A) she could not identify anything that would refute or confirm any position of her predecessors. Nor could she see a distinction between Sir Patrick Sheehy's identification of nicotine as "the key element" of cigarettes and her own statement that people smoked for many reasons, one of which being nicotine.

Yet some statements were helpfully clear

Research on safer cigarettes could not be considered to be directed at increasing the profit of the company, Ms. Polet testified, as it would be many years before a safer cigarette was on the market.  (This despite her report that the company spent 180 million british pounds a year on research).  For the moment, as she put it: There is no smoking product – no tobacco product that is safe to use.

The government in the driving seat - but who's the backseat driver

A recurring theme during the day's questioning was the company's responsibility to warn their customers, and Ms. Polet deferred such duties to government.

Did Imperial Tobacco ever advise consumers about the risks to using its products?
The government took the initiative to inform and warn consumers about the risks related to smoking. And they took the lead and made sure that consumers were informed.

That’s not an answer to my question. What did imperial tobacco do to inform their customers about the risks?
They let the government inform consumers. The role of the government was to inform consumers. This was clear from the beginning that they were in the driving seat on this. The government took the lead.

Later Bruce Johnston drew attention to the current court challenge Imperial Tobacco has launched against Health Canada's new requirements for 75% health warnings.

Why are you doing this?
Because we believe that the 75% size is not reasonable. The reason for that is that it is crystal clear to smokers in Canada that smoking can be harmful, that 50% health warning was big enough and visible enough so that there comes a point when size doesn’t matter. When you increase the size it doesn’t mean that consumers will be more aware.  Fifty percent size warnings on packages is very very visible.

The day's testimony ended as Bruce Johnston began to introduce the concept of completeness of information provided to smokers through the Health Canada web-site on warnings which includes expanded information on warnings. With some confusion and technical hiccups, the question was held over till tomorrow, when Ms. Polet will testify for the second day. 

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.