Thursday, 1 November 2012

Day 80: Mr. Massicotte's legal advice

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

It was Mr. Massicotte's second and final day of testimony at the trial of the Quebec tobacco class action suits. Yesterday, the lawyer who worked at RJR-Macdonald from 1977-1980 had been questioned about his role in the industry's international system to manage public issues. Today he was asked about his record as legal agent at the company.

The hearing today was unusually almost entirely in French. (Fair warning - translation was done on the fly).

Interpreting the voluntary code

The trial has heard much about the voluntary code that the industry developed to self-regulate advertising. One of Mr. Massicotte's jobs at RJR-Macdonald was to monitor the code and to advise on its application by his and other companies. (The version of the code in place while Mr. Massocotte worked at RJR-Macdonald is available at Exhibit  40005 K-1975).

One of the provisions of the code (article 8) was that "No advertising will state or imply that smoking the brand advertised promotes physical health or that smoking a particular brand is better for health than smoking any other brand of cigarettes...." Today Mr. Massicotte was asked to explain whether he thought describing a cigarette as "mildest" would have been contrary to the code. "I don't think so," he said "but there may have been other views."

André Lespérance asked if the statement "absolutely nothing milder" didn't contain an implicit health claim. "I think it could be interpreted in different ways," Mr. Massicotte replied and said the company was trying to move smokers to lower tar cigarettes and "at the same time not make health claims. It is a problem." When pressed whether the consumer might have thought such a brand was safer, he "could not say."

Consumer beliefs about low tar and "safer"

Not allowed by CTMC
Exhibit 896
Earlier this week, Mr. Ron Bulmer had testified about the marketing by Benson and Hedges of its low-tar brand, Viscount and the dispute between his company and Imperial Tobacco over the use of the word "mildest" in advertising.

Mr. Massicotte had been copied on a telex that shared the resolution of this issue. The companies had agreed end using the "mildest," "milder" and "check the numbers" claims. The CTMC noted that this would "remove a serious potential hazzard to the industry as well as to the two companies involved." (Exhibit 969).

Within two months, however, Mr. Massicotte's firm had launched its own controversial campaign for a low-tar brand. He was involved in defending the campaign against complaints lodged with Health Canada and the Consumer and Corporate Affairs branch of the federal government. In an unapologetic letter, Mr. Massicotte wrote that the ad was "not intended to address the question of whether one should or should not smoke." (Exhibit 969A)

Exhibit 969 D
Questioned on the letter some 30 years later Mr. Massicotte tried to dodge answering whether or not these ads were communicating that smoking low tar cigarettes was safer. Even after Justice Riordan put his food down and tried to force answers, he would not interpret the ad copy against the criteria of the code. "You are looking for an interpretation that marketers would know. I am not in marketing, and I am trying to give you the answers that I would know. If the smokers thought it was safer then there is nothing I can say - it was their belief." 

Nor would he distance himself from a draft he wrote for his president's signature that lower tar cigarettes were not communicated to smokers as being less harmful, but were marketed as not demanding a "sacrifice 
in flavour." (Exhibit 969E - see also Exhibits 969D969C969B).

Lawyers influencing science - no mention of 'dependency' please. 

Evidence today suggests that Mr. Massicotte added his own thumbprint to the history of tobacco industry lawyers' engagement with scientific research by the companies.

Mr. Lespérance produced a memo written from (now deceased) RJR-Macdonald scientist Derek Crawford regarding proposed grants from the CTMC to medical researchers. In addition to further showing the influence of the parent companies on local decisions, the memo contains a tantalizing reference to "re-wording" of a proposal from Dr. Knott. (Exhibit 970)

I believe I heard Mr. Massicotte say that the rewording in question was the removal of any reference to dependency - but at that point Mr. Francois Grondin, lawyer for JTI-Macdonald, was on his feet claiming that this line of questioning trespassed on solicitor-client privilege.

In a cordial but resolute manner, Mr. Lespérance and Mr. Grondin offered differing views on how to proceed. Mr. Lespérance said he had identified three documents from the Legacy that gave further insight into this episode, but both lawyers agreed that the issue of solicitor client privilege at this trial might be influenced by a Court of Appeal review of a May 17 ruling of Justice Riordan regarding privilege in this case. (The Court of Appeal hearing is scheduled for December 10).

After a break (during which an agreement seemed to have been reached to put the testimony under reserve until the Court of Appeal has ruled) Mr. Lespérance was able to ask Mr. Massicotte to confirm whether Mr. Knott has used the term "dependency" in his initial application. "He said he did not believe that smoking caused dependency - in accordance with the scientific opinion of the time," replied Mr. Massicotte. "We didn't ask him to do anything, he volunteered to remove the words."  (Later the witness revealed that he continues to share the view that addiction is a term that should be reserved for "hard drug users" who "can't control their actions" and "need to go to rehab clinics.")

Duty to warn

The morning was not yet over before Mr. Lespérance finished his questions and turned the examination over to his colleague, Mr. Philippe Trudel, who focused on the company's view of its responsibility to warn customers of the harms caused by smoking.

"Was it your view that the (adult) decision should be made on the full knowledge of risks?"
"Yes, but the public was fully aware."

"Did the company think that smokers should know all of the risks or just a few?"
"The question is specious - the public knew there were risks. If you add one more risk it doesn't really change things." ...

"Is knowledge of the risks an important basis for a smoker to make informed consent?"
"I would say yes, but the consumer at that time was well informed of the majority of the risks associated with smoking." 

Mr. Trudel was unable to get Mr. Massicotte to provide a clear answer about the magnitude of or relative risk. Only when Justice Riordan intervened and asked if the company had a policy with respect to warning about relative risk did Mr. Massicotte say "No."

And as to whether adolescents should be informed of the risks before starting to smoke, Mr. Massicotte said simply "we did not market to kids."

The Cross Examination

The cross examination of this witness was quick and painless. Mr. Maurice Regnier established that Mr. Massicotte had not been involved in the negotiation of the voluntary code at any time. Mr. Francois Grondin established that while working for his client Mr. Massicotte had spent only a fraction of his working day on the issues that were before the court. Ms. Suzanne Coté established that when he was speaking about Imperial Tobacco's involvement with ICOSI it had been the UK company, and not her client, Imperial Tobacco Canada Ltd.

One down - Seven to go?

2,804 days have passed since Justice Jasmin authorized these class actions with a ruling that set out 8 common questions to be answered at trial. The first of these was the question "Did the defendants manufacture, market and distribute a dangerous product, one that is hazardous to the health of consumers?"

With a few minutes left on the clock before lunch time, Justice Riordan closed his computer, capped his pen and glanced around the room. He said that he had heard the testimony of two current company presidents, and even though a third was yet to testify, it sounded to him like there may have been an admission on that first question. The companies did admit that their products were harmful to health.

Doug Mitchell, one of the remaining veterans on the case, stood quickly. "If it tracks the (civil) code," he said, "then there isn't an admission. The question as framed must be given a legal context. .. It was not meant to be a simple factual question." He continue in this way, but Justice Riordan repeated - "It seems to me that we have an admission."

The Road Ahead

The first part of the afternoon sounded like a case management discussion, with progress on discussions on some lingering issues (access to financial statements, access to CTMC documents, access to voluminous CMA documents) and some potentially new ones (Mr. Lespérance hinted that he might be requesting a closed-door meeting on an undisclosed topic).

Simon Potter once advised tobacco litigators to "never give up." That advice seems to have been taken by his colleagues on this trial who will try to re-open the issue of parliamentary privilege. A motion to this effect was to be circulated among the parties on Friday.

Some of these issues will be discussed more formally when the trial resumes on November 12th. On the first days of that week the discussion about the admissability of Legacy documents will continue (without the presence of any witness from that document repository).

For the remainder of Thursday, Ms. Gabrielle Gagné continued the task of entering historic "orphan" documents into the trial record. By the end of the day her pile had dwindled away. Highlights from some of these documents will be posted next week.

The trial resumes Monday, November 12th. 

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