Monday, 19 November 2012

Day 85: Mr. Barnett's surprising testimony

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

John Barnett is possibly the last of a long parade of tobacco industry witnesses to be called by the plaintiffs to testify at the Montreal tobacco class actions lawsuits. Like the last float on a good Santa Claus parade, the 14 year president of Rothmans, Benson and Hedges today tossed goodies to the crowd (or at least to those standing on the plaintiff's side).

The day started with no indication that there would be anything different than the usual practiced responses of experienced tobacco executives to questions that had been asked dozens of times before. No special measures had been taken by either side, either in the form of notifying the media (as the plaintiffs had done with other company presidents) and there were fewer flashy legal handlers than Philip Morris had brought in for other witnesses.

Soon there were reasons to wonder if this witness had been under- or over- estimated. His testimony was so rich that by early afternoon both sides had decided the risks of continued testimony outweighed the benefits. Mr. Barnett's appearance at the trial ended a day and a half earlier than expected and tomorrow's session has been cancelled.  

Introducing Mr. Barnett

John Barnett
Last week I thought it was the tobacco companies that were working on new courtroom tactics, but today the plaintiffs showed that they too could switch-up their approach when they brought Mr. Kugler in to lead the questions.

Mr. Kugler is one of the most seasoned litigators on the plaintiffs side, but is an uncommon presence in the court. His very slow, very dry and very authoritative style still feels somewhat fresh - even after 8 months of trial.

Whereas other witnesses have been given open-ended questions to present their background or involvement in the company, Mr. Barnett was given little option but to say "yes" or "no" to a long series of closed-questions. Nor did Mr. Kruger give Mr. Potter many opportunities to intervene to protect his witness and client.

(Mr. Barnett was not given a chance to say much about himself. There is more about the background of this chartered accountant and beer-and-cigarette career man on the web-site of Mobilicity than was provided to the court.)

The slow questions seemed to lull Mr. Barnett into a rhythm of providing simple "yes/no" answers. This is one witness who failed to escape to the blurry middle ground which has attracted so many other industry executives.

Go ahead. Google yourself. You never know what you might find out. 

During last month's testimony of Patrick Fennell, Mr. Kugler had introduced the RBH web-page from the web-site of the parent company, Philip Morris International. He had asked the former president about the company's current admissions that "All tobacco products, including cigarettes, are dangerous and addictive," and "There is overwhelming medical and scientific evidence that smoking causes lung cancer, heart disease, emphysema, and other serious diseases."  (A print out was introduced as Exhibit 834)

Mr. Potter, seemingly surprised by the document at the time, had tried to distinguish that the website belonged to the parent company, Philip Morris International (which is not a party to this lawsuit.) and not to Rothmans, Benson and Hedges. 

He tried again today to ward off the threats in this web-site by qualifying it as  "a Phillip Morris International website," but Mr. Barnett undercut his lawyer by accepting the information on the site as if it spoke for the company. He did this even though the web-site was a recent surprise to him.

I never saw this page until a week ago preparing for this testimony,"  he said. "I went to Google, put in 'Rothmans, Benson and Hedges' and this page came up."

"Did it surprise you that there was website that contained statements on smoking and health that were never provided to you?"
"I was surprised at the content, but not surprised that it was not submitted to me." 
"You were not surprised!?'"
"No. We are a wholly owned affiliate of Philip Morris International." 

"When you saw this web-site, did you attempt to find out who was responsible?"
"No I did not. I read the content. I know with respect to issues, what is stated here is consistent with what is on the PMI website. I just didn’t know we had the Canadian section." 

What's a president to do? Say the parent company is wrong?

Mr. Barnett did not get more cautious in his answers. Mr. Potter frequently glared at his desk as his client left a trail of damaging replies about what the company knew, when it knew it, and what it told its customers.
"The website states 'tobacco products are dangerous and addictive' – would you agree with me that this is the first time that this statement appeared on any RBH web-site?"

"It says on your website that cigarettes are dangerous. Do you have any reasons to believe that cigarettes are less dangerous or less addictive than they were in the 1960s?"
"I don’t know a basis to say that they were less dangerous or less addictive than they were in the 60s, no." 

"It says 'there is overwhelming medical and scientific evidence that smoking cause lung cancer.' Do you have any reason to believe that smoking which causes lung cancer today did not cause lung cancer in the 1960s?
"No, I don't."

"Would your answer be the same with respect to the overwhelming medial and scientific evidence that smoking causes heart disease, emphysema and other serious diseases? Would it have been the same in the 60s?"

"Can you refer the court to a single statement that you made or any document that you have seen emanating from RBH that states categorically that there is overwhelming medical and scientific evidence that smoking causes lung cancer?'"
"The only one that comes to mind - and I became aware preparing for this testimony – is an ad that Rothmans published on some Cancer Congress – It was done by Patrick O’Neil-Dunne before the 60s."

"Apart from that, has there ever been a statement from RBH [to this effect]?
"Not to my knowledge. When I joined the company it made the decision that it was best to let Health Canada be the primary communicator and reinforceer of knowledge about the hazards of smoking – rather than being accused of confusing the issue, we left the responsibility to that competent authority."

"What about with heart disease, would it be the same answer?" 

"Emphysema? - the same answer?" 

"And the same answer with respect to other serious diseases?" 

"To your knowledge, there has not been a change or evolution in the state of knowledge that smoking causes lung cancer since you joined in 1998?"

"Nor any change in the state of knowledge that smoking causes heart diseases?" 

"Nor that it cause emphysema?" 

"Nor that it causes other serious diseases?" 
"No." ...

"Am I to understand that RBH made the decision to not make the statement identifying the precise health risks?"
"That’s correct. We made no statement other than when we were required to."

We care about youth smoking, but not enough to talk about it

Mr. Barnett was asked pointed questions about his company's policies and actions with respect to youth smoking. He tried to talk up the CTMC contribution of $18 million over 15 years to convince 24,000 retailers to card smokers, but Mr. Kugler focused instead on what more the company could have done, and why it had not entered into youth smoking prevention programs as other Philip Morris International companies have

Mr. Barnett testified that the board of RBH had never discussed ways to convince youth to not smoke, and had not taken note of programs run by Philip Morris in other countries. No smoking and health issues were discussed by the RBH board, he said.

Hammering in some few last nails

After an early morning break, Mr. Kugler had a few more high-powered questions for the witness.  

"Do you accept the statement that in the RBH family there is no such thing as a safer cigarette?"
"Yes I do."

"Does your your company advocate smoking in moderation?" 
"It makes no difference."

Mr. Barnett confirmed that the company did not conduct any smoking and health research (its 'world class' laboratory is used only to test its products against regulatory requirements). Nor did Mr. Barnett ever ask for any assistance on smoking and health research from the parent companies that had capacity to conduct such research. (Mr. Fennell, a previous RBH president, had made similar admissions). 

Mazel Tov

Only two hours had passed when Mr. Kugler announced he had no more questions for the witness. "Mazel Tov," said Justice Riordan. Ever conscious of the court schedule, the judge may have been thinking only of the efficiency of the questioning. From the back of the room it seemed like "congratulations" were deserved on other counts too.

The cross examination

Mr. Potter was visibly upset that the cross examination he had anticipated for Tuesday was suddenly required before Monday's lunch. He huffed about the time spent in preparing for documents that were not used. But he was again undermined by his client who laughingly agreed with Justice Riordan than rather than being upset, he was "delighted" at the prospect of being released early.

In questions before and after the lunch break, Mr. Potter asked Mr. Barnett to talk about the steady reduction in smoking over the past few decades, and to attribute the decline to an increase in quitting, a decline in starting and a reduction in the amount of cigarettes that smokers consume. He prompted the witness to speak of the reduction in sales-weighted tar levels, as well as the company's Tobacco Act Compliance Committee (TACC) through which marketing measures are assessed against legal and voluntary marketing restrictions.

The horse, however, was clearly out of the barn and didn't seem ready to go back in. Even in cross examination, Mr. Barnett continued to provide very different responses than he had during his depositions on 29 May 200830 May 2008 and 29 January 2009.

Soon Mr. Barnett was thanked for his time and sent home to Rosedale.

A breach of a common law?

The Quebec civil code does not seem to include the the provisions of Parkinson's law that "work expands so as to fill the time available."  Mr. Barnett's early departure left a gap in the schedule tomorrow which is not to be used to file documents or conduct other trial business. The court will not sit tomorrow (Tuesday).

Barring further surprises, Mr. David Sweanor will testify on Wednesday.

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.