Monday, 17 December 2012

Day 96: Canadian Facts, maybe, but not much insight

There was an end-of-term feeling when the Montreal tobacco trial resumed this Monday for its last few days before the Christmas break. Let's get this work done and over with!

Compared to the hurly-burly of last week's appearance by Jeffrey Wigand, the mood of the room seemed particularly sedate. The benches on both side of the bar were thin. In addition to the 'Insurance' lawyer who takes steady notes when witnesses from Imperial Tobacco or Rothmans, Benson and Hedges are present, the only other visitors in the public area were the plaintiffs' expert witness, Christian Bourque, and his colleague.

Mr. Philip Cadieux, who testified today, was the fourth witness to have once worked for Imperial Tobacco's marketing department. (On his LinkedIn profile, he list the company as BAT Canada which is now more accurate and less likely to lead to confusion with Imperial Tobacco UK.).

The previous marketing department witnesses to have testified live have been Tony Kalhok, Ed Ricard, and Jacques Woods. Others, like Bob Bexon, have provided posthumous contributions.

The seven years Mr. Cadieux spent within the company working as a research analyst, market forecaster and survey manager (from 1982 to 1989) are only part of his history with the company. He left Imperial to work with its market survey firm, Canadian Facts (now known as TNS Canada/TNS Global).  From his various roles in that company, rising to vice-president of client surveys, he continued to work on Imperial Tobacco Accounts.

The go-to guy for tobacco
and the diseases it causes
(TNS must be a company with a good sense of irony. In addition to the tobacco file, Mr. Cadieux also worked on the marketing of medical services to treat tobacco caused disease, like cancer, and heart disease, and helped link people with ailments to companies selling cures.)

However he has spent the three decades since joining Imperial Tobacco, it looks good on him. At 56, Mr. Cadieux is one of the younger witnesses, as Philippe Trudel remarked before beginning his questions of this witness. With his thick black hair, trim figure, good posture and unlined face, he is by far  one of the youngest looking.

Nor does Mr. Cadieux suffer from the same type of memory lapse that has beset some of the older witnesses. With this witness there is not the feeling that he is pretending not to remember things. From his testimony, it would appear that he never knew much to begin with.

Mr. Trudel: When you worked at Imperial, did you know the company position with respect to smoking and health?
Mr. Cadieux: No I didn't

Mr. Trudel: You don’t remember?
Mr. Cadieux: I don’t think I ever knew.

Nor did he ever know:  why the company collected information on which sponsored events appealed to different age groups; what use was made of information that showed fewer smokers were using "milder cigarettes as a means of addressing their concern on smoking and health"; why the company began measuring health concerns about carbon monoxide; why certain questions on health issues were included on the surveys whose results he analyzed; why the company probed smokers to find out how old they were when they tried smoking and when they became regular smokers.

I think it was Mr. Cadieux's lack of insight that was the most striking impact of this witness. For a man who worked in the polling business for several decades, he seemed to have no capacity to provide any interpretation of survey research findings.

Mr. Cadieux was asked to reveal his hourly rate for working (a new practice in this trial, initiated by Imperial Tobacco over the past couple of weeks). It is hard to understand how someone who can command such a high consultation fee can be so uninformative when looking at survey results in market in which he has decades of experience.

In other respects, Mr. Cadieux gave the appearance of being an intelligent man. With only 8 hours of pre-trial preparation by Imperial Tobacco lawyers (he had not been inclined to accept the invitation to meet with the plaintiff's lawyers), he had grasped many key elements of this trial  - like the fact that the cigars and pipes were not part of the trial, and that he expected that lawyers would "refresh my memory".  At several moments in today's testimony, Justice Riordan let slip a smile as the witness said things that you might not expect someone off the street to know instinctively.

Not the end of the (Mayan) world, but not great for BAT Canada's case either.

One of the most memorable statements of the day came mid morning, when Mr. Cadieux was being asked about the "variable question block" (VQB) that was included into Imperial Tobacco's regular CMA survey. The survey questions asked smokers, for example, how dangerous they thought smoking was.

Mr. Cadieux had said that all of this information was used purely for forecasting reasons (and not for marketing or other purposes). Mr. Trudel wanted to know why smokers' knowledge was important to those forecasts, and suggested that it might be because such knowledge was a percursor to quitting.

"So the more knowledge of risks, the higher the quitting rate?" asked the lawyer.
The witness sought clarification - "The more knowledge of the risks?" Or the more people believed that smoking was risky?"

Mr. Trudel casually followed up by asking "you make a distinction between knowledge and belief?"
"Yes," said Mr. Cadieux. "There is a difference between awareness and belief. I am aware that people think that smoking is not healthy - and the belief is different."

"Can you explain that to the court?"
"Yes. I am aware that the Mayan calendar predicted the end of the world this month, but I don't believe it. I think that carries through to smoking - the difference between awareness and beliefs."

If one of the pillars of Imperial Tobacco's case is that there was broad public awareness of the harms of smoking, this distinction presented by one of its 'friendly' insiders can not be very helpful.

(Mr. Cadieux answer undermines an answer given during the cross examination of Anthony Kalhok, former VP of marketing. On April 18, ITL's lawyer, Craig Lockwood, asked a seemingly soft-ball question about whether he thought there was a  "distinction between the public awareness of an issue versus the public belief in that issue?" Mr. Kalhok replied: "No, I do not. Because, in reality, I think it's one and the same."

More marketing data on the record

From about 10:30 until the end of the day, Mr. Trudel presented Mr. Cadieux with a series of marketing documents, asking questions on sections of them and entering them as Exhibits in the trial. These documents are not yet available, but hopefully will be by tomorrow.

At the end of the day, Mr. Trudel indicated that he expected that tomorrow would be the last day on which Mr. Cadieux would be required by the plaintiffs.

The Court of Appeal on Litigation Privilege - Not yes. Not yet. 

A week ago today, the Court of Appeal had listened to arguments regarding the "Four Seasons Project"  report commissioned by the Canadian tobacco companies in the mid 1980s to help them protect themselves from litigation efforts such as the one underway in this Montreal court.

In 1988, the companies hired historian David Flaherty to measure and document awareness of health issues related to smoking and in 1989, he was again hired to use such information to help fight Canada's first ever (but ultimately unsuccessful) lawsuit against tobacco companies. David Flaherty has prepared an updated version of the paper as an expert report for this trial, but the defendant tobacco companies had tried to keep his early effort away by arguing that it was subject to solicitor client privilege.

On May 17, Justice Riordan had ruled against them, and it took 7 months for the Court of Appeal to consider the objections to that ruling. It took four working days for the Court to release a 16 page ruling which adds to the pile of recent judgements by that court against the companies.

I hesitate to interpret the pattern, but the court seems to make increasingly clear that they will not interfere mid-trial, and that complaints such as these must wait until the trial is over before they can be addressed. (The Court of Appeal ruling can be found here.)

Tomorrow, Mr. Philip (Phil) Cadieux continues his testimony. The last witness this week will be Mr. Hirtle, who is expected to testify Wednesday. The time remaining this week will bge used to enter exhibits onto the court record. (Corrected)