Monday, 22 October 2012

Day 73: The president who never bothered to ask

A new week in the Montreal trial of the Quebec class action suits opened today with a new witness and the return of a plaintiff lawyer who is a less frequent presence in this court.

The witness is Mr. Patrick J. Fennell, who was president of Rothmans, Benson and Hedges and Rothmans Inc in the second half of the 1980s. The lawyer is Mr. Gordon Kugler, whose name is on the left-hand side of Kugler-Kanestin, one of the four firms sharing the task of presenting the case against the tobacco companies.

Mr. Kugler was called to the bar in 1967, which by my calculations gives him 45 years experience in his current job and makes him only a little older than than today's witness, who is 68.

Gordon Kugler
Mr. Kugler is among the taller lawyers in the room, and has a bearing that makes him seem even taller. His courtroom style is very different from those of his colleagues, and the change of pace seemed to make an even more attentive court.

Instead of facing the judge, Mr. Kugler stands at a 45 degree angle to the bench, giving the rest of the room a full view as he asks questions. His verbal pace is slow and deliberate, with long pauses between questions. There is little vocal inflection, but when there is it has a dramatic effect. He looks towards the witness, but seems to focus at mid distance. In stark contrast to his colleagues, he asks few open ended questions. The combined effect is the projection of calm control and unrelenting forward movement.

Mr. Fennell has less experience at presenting the industry 'context', and less recent experience, than many witnesses who have appeared at this trial. His joined the tobacco business in June 1985, when he was appointed as president of Rothmans of Pall Mall. About 6 years later, he was out. (In 1990, he left Canada to work for Rothman's international operation in Europe, but was dismissed from that position within the year). Any bitterness he might have felt over being fired must have dissipated over the past 22 years, because today he had not one negative word to say about the industry he once worked for.

In the first 20 years of his worklife, Mr. Fennell worked at General Foods, Pepsicola, Harlequin Enterprises, Simon and Shuster and Price Waterhouse. Following his departure from Rothmans International in 1990, he worked  in the executive search field and now works as an executive "coach."

Things people do for their job: take up smoking cigarettes

Only rarely in this trial have witnesses offered or been allowed to testify on their own smoking experience. Mr. Fennell, unusually, offered three versions of his personal relationship to tobacco products and the companies who make them. .

The first were the concerns he felt as a child about his mother smoking. "We as children and my father encouraged my mother to stop smoking and we were concerned that she would get sick." 

The second were his concerns that his own children not smoke, and their concerns about his working in the business. "At the time I had 3 teenagers and they weren’t very happy that I was working in the tobacco industry...  I didn’t want them to smoke." He said he feared they would start and still be smoking at the age of 50, like his mother.

The third was his own decision to start smoking when he started working with the industry in his early 40s, and his experience with quitting.
"I started to smoke when I went to Rothmans. I started with cigars and switched to cigarettes. I always said when I left the industry I would stop smoking. It wasn’t as easy as I thought it would be. It took me 4 or 5 attempts – I didn’t know what it was that made it hard. It was in my head. It was a whole bunch of things that made me like smoking - opening the package, going to the store, putting it in the ashtray, putting it in my mouth, it wasn’t just what was in the product.

Despite his own experience at having trouble quitting smoking, Mr. Fennell was unwilling to consider cigarettes addictive.
"I would say that someone who starts to smoke and enjoys it and continues to do it – if you want to call it addiction, that’s your right. I reserve the word for stronger situations, like hard drugs. ..There are more quitters walking in Canada than there are smokers. That is a witness to a product not being addictive."

Protecting shareholders, not customers

Mr. Kruger gave Mr. Fennell many opportunities to identify actions he might have taken to inform smokers of the harms of smoking, or to volunteer what he might have done to discourage youth smoking. Of the $30 million budget for advertising, the witness was asked, how much was spent to encourage youth not to smoke. The answer underscored what Mr. Fennell saw as his core responsibility.

"There was no money allocated for telling youth what they already knew. Money directed to a very competitive market environment. My responsibility was to run the company and return to profitability. It was looking at bankruptcy. Was intended to make the company more successful so that the employees would retain their jobs and the shareholders could be paid for what they invested in."

Although he knew that smoking was hazardous ("I was totally aware there was a risk associated with smoking"), Mr. Fennel remains fuzzy about what that was. He testified today that during his time at the head of the company he took no efforts to become informed. ("I just took the umbrella statement if you smoke there is a risk.") 

Scientific reports on the harms of smoking were sent to him (and only him), but rather than reading them, he passed them on to Mr. Norm Cohen, the head of research. (Exhibit  837).

"Did you ask Norm Cohen for precise information on the carcinogenicity of your products?'"
"I don’t believe I did."

"You didn't care?"
"I don’t believe I asked."

"You weren’t interested?"
"I would have been interested if I thought there was a serious problem."  ...

"When you became part of Rothmans, did you read anything about the known risks of smoking that had been carried out ...prior to your arrival?
"And you never asked?"
"I was engaged to help fix the company – it was very clear to me during the period of time I was interviewed that this company acted responsibly and the people I was speaking with struck me as responsible people. I took it on face value that these people don’t do things that are dangerous for consumers."

Today's exhibits related to business planning and marketing : Exhibit 830 831 832 839
Exhibits related to scientific research and knowledge of harms from smoking: Exhibit 837 840  844 

Those before and after him had more knowledge 

O'Neil-Dunn on Lung Cancer
Exhibit 758-3A
Through this trial, some of the original writing of one of the more colourful industry executives, Mr. Patrick O'Neil-Dunne, has finally come to public light. Today, another of his lectures to sales staff (this one from 1961) was shown to the witness. (Exhibit 758-3A)  Mr. Fennell may not know whether there are carcinogens in cigarette smoke, but 25 years earlier, his predecessor was under no doubt.

Mr. Fennel was also shown the following statements from the current web-site for RBH :
Smoking and Health - Tobacco products, including cigarettes, are dangerous and addictive. There is overwhelming medical and scientific evidence that smoking causes lung cancer, heart disease, emphysema, and other serious diseases.
Addiction -  All tobacco products are addictive. It can be very difficult to quit smoking, but this should not deter smokers who want to quit from trying to do so. (Exhibit 834)
Mr. Kugler asked what he would have done if he had known what is now on the company's website to be true when he was head of the company.
"I would have felt an obligation to say just what is being said here," Mr. Fennell replied.

Would he have taken out an ad in the Globe and Mail? "
I don’t know what I would have done, but would have made it public."

Were his customers entitled to know this in 1985?
"Of course they were."

Mr. Fennell and the message to the public.

Mr. Fennell's short tenure at Rothmans, Benson & Hedges coincided with one of the more tumultuous periods in Canadian public health history, during the passage of the Tobacco Products Control Act (C-51) which was bitterly opposed by the industry.

Exhibit 842
The CTMC tried to mobilize the friendlies, and encouraged advertising agencies among others to protest the proposed restriction on cigarette advertising. An angry response from one advertiser (Luc McCabe) was sent to Peter Fennell. Scrawled across the top was Mr. McCabe's comment "I do not think the advertising industry should be part of the 'pro-death' lobby."

Among the industry documents made public today for the first time were minutes and other decision material from CTMC board meetings in the run up to the passage of C-51. (Exhibit 433E). These show the companies looking at youth sales laws as a way to win back public favour ("accrue credit") and to pre-empt legislation. The documentation also shows the industry funding trade union activity to prevent bans on smoking in the workplace.

Exhibits related to public issues: Exhibit 433E 833 836 838 841 842 843 845 846

Tomorrow, Bruce Johnston will ask Mr. Fennell further sets of questions. On Wednesday and Thursday, Mary Trudelle, a former public relations official with RJR-Macdonald will testify.