Monday, 10 December 2012

Day 92: Jeffrey Wigand - The Insider

See note on accessing documents at the end of this post

When the Montreal class action trial resumed after a scheduled one-week break, it was in the aftermath of the season's first winter weather. Snow and rain had made the streets messy and ugly, and the cold damp was a reason to stay indoors. But for Imperial Tobacco's lawyers, the climate inside the courtroom was even worse.

The former tobacco industry employee who testified today is unlike any of the 29 previous industry insiders who have appeared at this trial. Jeffrey Wigand is a former employee with an ax to grind, a compelling story to tell, and a media community supportive to its telling.

The weather was no obstacle for the many who came to watch Mr. Wigand's appearance at the trial. Once again, there were cameras in the hallway and journalists in the court room. Many of Mr. Wigand's fans in the public health community filled the seats behind the bar that divides the plaintiff’s lawyers from the public. The legal importance of the day was signaled by the increased number of senior lawyers present on both sides.

The only empty rows of seats were those which until recently had been occupied by lawyers representing the federal government. During last week's break computer equipment, books and personal effects had been removed. All traces of the government's years’ of effort on this case have left the room.

"The man who knew too much" and is willing to tell all

Mike Wallace's
60 minutes interview
with Jeffrey Wigand
Jeffrey Wigand became a household name following his 1995 exposé of tobacco industry scientific deceit on CBS's 60 minutes. The backstory to this reveal became a feature story in Vanity Fair (The man who knew too much), and eventually inspired a movie (The Insider).

Almost two decades have elapsed since Dr. Wigand was fired from Brown and Williamson after his four-year stint of employment (1988 - 1993). In that time he has not only spoken publicly about what he witnessed, but has assisted public plaintiffs against tobacco companies in lawsuits. His first testimony against the industry was in 1996 in support of the Mississippi government's claim for health care costs and he was also a witness in the U.S. Department of Justice RICO suit.

Jeffrey Wigand, 2011
Time has been no kinder to Dr. Wigand than to the rest of us. Now almost seventy years old, he suffers from back problems and walks with a cane. He elected to sit down to testify. His hair has progressed from grey to white. His New York mumble is even harder to follow.

But his memory of events remains sharp. His story, in the context of this trial, is farm fresh. This court case is stuck in a time warp (only events that happened before 1998 are properly relevant to the case), and Dr. Wigand is a man from that era. Outside the Palais de Justice his story might seem faded with time, but today it had a "hot off the press" feel.

This court has looked at hundreds of documents about management decisions about science that date from the 1980s and 1990s. Dr. Wigand's testimony gave life to those documents and reinforced some of the key themes of this trial. Listening to him, it seemed clear that Imperial Tobacco allowed BAT to sacrifice its scientists and its research duty of care in order to appease fears about litigation.

BAT scientists meet in Vancouver in September 1989

Dr. Wigand told the Montreal court how he and other senior scientists from BAT companies had participated in a BAT group research meeting in Vancouver in September 1989.  (Exhibit 336A). Also attending the meeting were Imperial Tobacco's senior scientist, Dr. Patrick Dunn and his colleague Stewart Massey.

The agenda of this annual meeting of the Research Policy Group (Exhibit 336) shows the topics of interest to the scientists at the time, including Dr. Wigand's own focus on ways to test the harmfulness of cigarette smoke or to measure additives in conformity with standards used in other consumer products.

Dr. Wigand explained today why it was that there was no discussion of  research on whether smoking caused cancer. There was no need for such research, he explained, as it was widely accepted by all BAT scientists that causality was established. It would be  "redundant [to research] something that was accepted."

Lawyering the minutes

Three sets of minutes for that meeting were found among the documents provided by Imperial Tobacco to the plaintiffs in this trial. The first was a 15 page version written on the last day of the meeting, September 22 (Exhibit 262). (This exhibit is noteworthy in that it adds another new layer to a story that has been well told for over a decade). The second version of the minutes was slightly shorter at 12 pages, and was sent a week after the meeting to participants for their review (Exhibit 262A). The third version, sent out about 10 weeks later, is only 3 pages long. (Exhibit 262B).

Each successive version has significant deletions -- the word 'addiction' appears only in the first version, and the last version has removed references to several parts of the meeting, including the decision to have a meeting on Dr. Wigand's topic of interest, biological methodology.

Missing also from the later versions of the minutes is a record of the decision to "phase out" research on "mechanisms of disease" that had followed a review of a discussion paper on research strategies on 'Smoking and Health' (Exhibit 262C).

Under Bruce Johnston's questions, Dr. Wigand spoke of his experience moving from the second version of the minutes to the third (he said that he had only ever seen the first version of the minutes in preparing fort his trial). After reviewing the minutes and commenting on them, he had forwarded them up the line to his own boss, Tommy Sandefur, before returning them to Alan Heard at BAT's UK research facility.

After his boss received the file, Jeffrey Wigand was hauled onto the carpet and given a dressing down for his participation at the meeting. "I was accused of putting into a document material that was against what the company's public policy was. My participation was wrong. Bringing up biotesting and addiction was wrong." The task of finalizing the minutes was transferred to the company's lawyer, J. Kendrick Wells. It was this man's much-abridged version that would be distributed across BAT companies (including Imperial Tobacco) later that year.

Lawyering the scientists

Dr. Wigand described how this event triggered a revamping of the research process at the company. "Things escalated - involving the highest levels of management in BAT industries. We were ordered to go to New York to a meeting." At the meeting, the scientists learned "how a lawyer would be in every facet of scientific communication, every facet of document generation." 

The new policy went beyond the document destruction policy that this trial has heard so much about. It also sought to change the way scientists reported their findings, and to set up a system for lawyers to audit and review scientific documents.

"It was really censorship," said Dr. Wigand. He explained how a lawyer "would review what documents you were allowed to have, decide what was the wording in the documents and change or audit or edit or vet the words that were in the documents. ... He could even prevent documents from coming to me."

Dr. Wigand was not the only scientist in the BAT group who was disturbed at this turn of events. He said that he had frequently spoken with his Canadian colleague, Pat Dunn, whose upset at the control by lawyers has been eloquently, if posthumously, presented at this trial. (Exhibit 102A)  Pat Dunn thought that "it was an invasion of his scientific integrity," he reported

When he spoke of the Canadian lawyers who participated in this process, the microphone, which had challenged him all day, was close to his mouth and his words boomed throughout the room. "Roger Ackman and Simon Potter had dirty hands. They had role in editing, vetting and ultimate destruction of documents." 

(At the end of the day, Simon Potter rose to defend his honour against this "media worthy" witness. "It is not correct to say that I ever edited a scientific report," he said. Justice Riordan quickly adjourned the day, and observers left the courtroom laughing at Mr. Potter's failure to mention whether or not he destroyed documents in order to prevent them from being discovered in litigation, as so much evidence in this trial suggests.)

Standing in for the late Patrick Dunn

It was not only in reporting the views expressed to him by Pat Dunn that Dr. Wigand seemed to be the stand-in for a witness whose only has testified at this trial through his document legacy.

Court rules require that documents be authenticated by people who authored or received them. Because Pat Dunn and Jeffrey Wigand were often on the same circulation list, Bruce Johnston was able to benefit from Dr. Wigand's presence to enter many documents onto the record that further expose the shift in BAT/Imperial Tobacco scientific policy in the late 1980s. Concurrent with the lawyering of science, the company refocused its research efforts on more marketable cigarettes and required new financing agreements with each of its group members. (See Exhibits 1241124212431243A1243B1243C12441245).

(A colleague has provided a good review of the evolution of Imperial Tobacco Canada's research efforts in this period.)

Deborah Glendinning's bad day

A sign of the threat that Imperial Tobacco sees in the testimony of Dr. Wigand, perhaps, is the last-minute last-ditch efforts that the company put into tripping up his appearance at this trial.

On Thursday last, before the court adjourned for a week, Justice Riordan learned of an attempt by Imperial Tobacco to serve a subpoena on Dr. Wigand for certain documents. (The nature of the documents has not been disclosed but today's discussion suggests that some of them relate to his financial situation). Not finding Mr. Wigand at home, the company had asked the plaintiff lawyers in Montreal to forward the subpoena to their American witness. Justice Riordan had refused to be drawn into issuing any instructions related to an area beyond his jurisdiction.

Imperial Tobacco tried another approach. Last week it made an application for a U.S. court to require these documents to be produced and did so without getting Justice Riordan's buy-in on the approach. What's more, they had suggested that Justice Riordan would be supportive of the request (Their motion to the US court says that “the presiding judge acknowledging relevance of requested discovery to ITL’s cross examination of Mr. Wigand”).

As a third step, the company had filed a motion to argue that the plaintiffs were guilty of "improper use of procedure", and to have Jeffrey Wigand's testimony delayed until the subpoena was issued.

Ah, dear.

As André Lespérance put it, they seem to have shot themselves in the foot. Not a very good idea to misrepresent the judge's opinion before a foreign court ("I strongly suggest you advise whomever needs to be advised that the statement is inaccurate," Justice Riordan sternly instructed Ms. Glendinning after his implied support was brought to his attention.) Even worse idea to do so on an issue where you will want him to cut you some slack.

This was not the only set-back Imperial Tobacco faced today. Several times Ms. Glendinning objected in vain to the introduction of documents that she felt were attorney-client privileged. (She has previously maintained that Imperial Tobacco has nothing to do with Brown and Williamson and that the American company is no longer in existence. Today this former position didn't seem to preclude her suggesting that it was her responsibility to defend its attorney privilege or being able to check into the views of this non-existent company during the lunch break). As he had previously done, Justice Riordan maintained that once a document was posted on a company's web-site and open for the world to read, attorney-client privilege was not a reason to prevent it from becoming part of this trial record.

Nor was Ms. Glendinning able to persuade the judge that Mr. Wigand's experience at Brown and Williamson was irrelevant to a case involving a wholly different subsidiary of British American Tobacco.

Court of Appeal update

This morning the Court of Appeal heard the industry's appeal of Justice Riordan's May 17th ruling on the admissibilty of David Flaherty's Four Season report. It was reported today that a ruling is expected this coming Friday.

The Appeal Court has still not posted a decision on industry's appeal of Clémont Gascon's ruling that the Quebec government need not provide the industry with the documents it was seeking to supports its constitutional challenge to the law which enables the provincial law suit.

Tomorrow may be Mr. Wigand's last day on the stand. The plaintiffs have indicated they have only a few more questions for the witness. The cross examination by Imperial Tobacco may be influenced by the outcome of their attempt to subpoena his files.

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