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.