Tuesday, 18 December 2012

Day 97: Are you more likely to die in a car accident than by smoking?

See note at the end of this post for information on accessing documents

It may have been the snowy wet weather. It may have been the Christmas shopping. For whatever reason, there was hardly anyone in the room for the last day of testimony of Philip Cadieux, a former market analyst with Imperial Tobacco.

Yesterday, plaintiff lawyer Philippe Trudel had tried in several ways to encourage Mr. Cadieux to share his knowledge of Imperial Tobacco's proprietary surveys of smoking behaviours (8M/Monthly Monitor) and smokers' attitudes (Continuous Market Assessment). With a few notable exceptions, Mr. Cadieux had maintained that he had nothing to share. I counted at least seventy occasions yesterday in which he responded to questions with "I don't know."

Today, the plaintiffs seem to have abandoned hope for any deep insights from this witness and seemed to have changed their approach. The pointed questions asked in firm tones yesterday - with arms crossed and focused staring at the witness - gave way today to a gentler style of voice and body language. Today's questions appeared as innocuous invitations for Mr. Cadieux to comment on what sounded like technical inquiries.

The witness seemed to relax a little, as did the whole courtroom atmosphere. Mr. Craig Lockwood, who is in charge of Imperial Tobacco's defense of this witness, is less prone to sharp-toned objections or disruptive interventions than his seat mate today, Ms. Glendinning.

Mr. Cadieux is the plaintiff's link to Imperial Tobacco's surveillance tools. The importance of these to the company was stressed earlier in the trial, when the company fought to have them placed "under seal" in this trial.

"As far as I am aware none of ITCan's competitors conduct or commission research that contains as much or as detailed information as is in the CMA." said Nancy Roberts in mid-May. "ITCAN uses historical CMA information to forecast the likely impact of changes in the marketing place and regulatory environment." 

(Justice Riordan was not persuaded by Imperial Tobacco's arguments, and the Court of Appeal upheld his decision to make the survey information available on the trial. The results are now on the record among Exhibits 987 and the microfiche is Exhibit 988. Whether an electronic record that would allow for easier analysis is still in existence remains in the air. Mr. Cadieux was asked to see whether one was maintained by his former employer. This voluntary action "would save a subpoena then, perhaps," said Justice Riordan).

Today, as yesterday, many of results from these ongoing surveys that were shown to the witness suggested a great interest on the part of the company in the views of smokers towards their products, social pressures on smoking, products that might be less harmful and the likelihood of disease from smoking.

"We knew that some smokers were less inclined to worry about trying to quit and had fewer intentions to quit and that some had more. We were aware there was a spectrum of smokers' beliefs in quitting and views on smoking and health," Mr. Cadieux said today.

He explained that ITL divided smokers into four categories -- highly dissonant, dissonant, consonant and highly consonant. The most dissonant smokers were those who had tried to quit in the last year and intended to try again in the next year. The consonant smokers were those who had neither tried nor intended to try in the same period.

Bob Bexon, the ghost witness in this trial, parsed this information carefully. In a handwritten memo he works through some possible underlying factors -- the difference between fear and fact, or between fear of disease or of death. (Exhibit 1254).

ITL's ongoing surveys also looked at other ways to measure smokers' perceptions of the harmfulness of its products. Smokers were asked whether “filter tipped cigarettes are better for your health than are non-filter tipped cigarettes", "What is the maximum amount of tar and nicotine that you feel is safe in a cigarette?" and whether they agreed that "It is more likely that a smoker will die in a car accident than through smoking". (Exhibit 987.15).

Mr. Trudel pointed to the result that half (48%) of smokers thought that a car accident was as likely a cause of death as smoking, and asked Mr. Cadieux if this was actually the case. "I don't know," was the familiar answer.

"Would it suggest that people don’t know the magnitude of the risks?" asked Mr. Cadieux. "I don't know," said Mr. Cadieux again -- but perhaps this time the question was a rhetorical one.

The cross-examination

By 11:30 the plaintiffs had finished their questions and Craig Lockwood's cross examination began by giving Mr. Cadieux a chance to restate his surprising revelation yesterday about the distinction between "awareness" and "belief."

"You made a distinction between awareness and belief.  If you were in your capacity as a pollster, would you pose the same questions if you were measuring awareness and belief?" asked Mr. Lockwood.
"I would post two different questions." said Mr. Cadieux.

Mr. Lockwood also invited Mr. Cadieux to confirm that he had never been involved in the marketing of products, to clarify his definition of starter as "someone who had started smoking in past 12 months and had no previous brand," and to express the focus of trendline on changes, not absolute levels. The other companies had no questions for this witness.

André Lespérance then followed up with a short set of questions about awareness vs. beliefs. Mr. Cadieux confirmed that he drew a distinction between awareness and beliefs, but that sometimes the question was in a grey zone between the two.

André Lespérance: "If you asked whether or not cigarettes caused disease – is that knowledge or belief?"
Philip Cadieux: "That depends on the question?"

"What if the question is 'Do you know ...' would that be awareness or belief?"
"That is subject to interpretation – 'Do you know?' -  it's kind of a grey area

Shortly after noon, Justice Riordan said farewell to Mr. Cadieux. "These are difficult questions – the lawyers have a difficult task. Thank you for being patient with them, and spending some time here. Happy holidays."


Indeed, the end-of-year break seemed to be on everyone's mind. During the breaks and even during the session, there were comments about pressures from family to spend more time at home.

There are only two items left on the week's schedule, and when André Lespérance raised the possibility that by tomorrow evening it would be possible to complete them both, Justice Riordan confirmed the collective desire to "break a day early" and not sit on Thursday.

And another holiday bonus - the court adjourned at lunch today.

A new high water mark for witness payment

Over the last two weeks, witness' compensation has emerged as a talking point in this trial. The discussion today has set a very high bar for any future discussions.

Shortly before the court adjourned, Mr. Lespérance gave verbal notice of a motion he may wish to present to help him resolve a dispute over a bill for witness compensation.

For less than 2 hours on March 6th this year, BAT lawyer, John Meltzer, was questioned on his knowledge of the document retention policy and the destruction of scientific and other documents by Imperial Tobacco. (The examination took place in England).

The court learned today that Mr. Meltzer's bill for the time in preparing for this hearing was $200,000.

It took a minute or two for Justice Riordan to absorb what André Lespérance was telling him. Deux ...  cent .... milles ... dollars?!, he asked, stressing each word.

Mr. Lespérance said he didn't want to get into a fight over the bill, but was looking for a way to bring it more in line to the Canadian standard. In Quebec, he said, a witness receives under $100 and a bus ticket.

Exhibits used during the examination of Mr. Cadieux

  • 987.15  1977 Segmentation of French and English Speaking Cigarette Market
  • 987.21A-2m: Project Viking Wave 3 (hard data) - December 1991
  • 987.35A-2m: 8M study - Cigarette Smoking and Health - Spring 1973 - Excerpts
  • 1246 2m  Training Program in Marketing Research - Part 2 - June 16, 1994 
  • 1247 Notes by Mr. Cadieux, for a presentation made to a group of new employees - November 1981
  • 1248 2m PROJECT BRAND I.D. - July 1981
  • 1249 2m Canadian Facts study regarding health consciousness - July 1964
  • 1250  Canadian Smoking Habits - Fall 1985 
  • 1251 Handwritten document: Quitting - 8M 1979 
  • 1252 Tobacco product users report, update 1981, (2X) and tables - Marketing Research Dept. - July 1982 
  • 1253  Data with respect to Smoking and Health from 1982 CMA, dated March 16, 1982
  • 1254. Bob Bexon Memo: Health Concerns are a Real Issue
  • 1255. Project Spur
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: https://tobacco.asp.visard.ca

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