Wednesday, 30 January 2013

Annexes to Richard Pollay's Expert Report

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

 A bonus!  

Appended to Richard Pollay's Expert Opinion (Exhibit 1381) were a number of annexes, including reports on tobacco advertising as well as images of advertising in Canada.

* The reports are available as Exhibits 1381A to 13810.

* The images, some of which are shown below,  are available as Exhibits 1381.1 to 1381.107.


 "The dark side of marketing seemingly "Light" cigarettes: successful images and failed fact" in Tobacco Control. Exhibit 1381 A 

"Marketing Cigarettes with Low Machine-Measured Yields" in Smoking and Tobacco Control Monograph No.13. Exhibit 1381 B

Advertising/Marketing of Low Yield Cigarettes: Themes, Messages and Miscommunication. Exhibit 1381 C

The Advertising of So-called "light" and "mild" Cigarettes
Exhibit 1381 D 

The Functions and Management of Cigarette Advertising
Exhibit 1381 E

"Targeting youth and concerned smokers: evidence from Canadian tobacco industry documents" in Tobacco Control
Exhibit 1381 F

"Information and Imagery in Contemporary Canadian Cigarette Ads" in Proceedings of the American Academy of Advertising
Exhibit 1381 G

How Cigarette Advertising Works: Rich Imagery and Poor Information
Exhibit 1381 H

How Cigarette Advertising Works: Rich Imagery and Poor Information (French Version)
Exhibit 1381 I

The Role of Packaging Seen Through Industry Documents
Exhibit 1381 J

"A Premiere Example of the Illusion of Harm Reduction Cigarettes in the 1990s" in Tobacco Control
Exhibit 1381 K

Un exemple flagrant de la promesse illusoire de la réduction des dommages de la cigarette au cours des années
Exhibit 1381 L

Considering the Evidence, No Wonder the Court Endorses Canada's Restrictions on CIgarette Advertising
Exhibit 1381 M

Putting an End to Deception: Proceedings of the International Expert Panel on Cigarette Descriptors
Exhibit 1381 O

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.

The Montreal trial resumes on Monday, February 4th. Witnesses during this week will be Montreal pneumologist Dr. Alain Desjardins and pharmacologist Dr. André Castonguay. 

Thursday, 24 January 2013

Day 106: He took a licking and kept on ticking

When the Montreal tobacco trial resumed Thursday morning for the last day of Richard Pollay's testimony, it was Doug Mitchell's turn to cross-examine this expert witness on marketing. It was not the first time this counsel for JTI-Macdonald had done so.

Mitchell vs. Pollay - round 2

Richard Pollay was an expert witness for the federal government during its defense of the 1988 Tobacco Products Control Act and the 1997 Tobacco Act. (The first law was not deemed constitutional by either the first judge who heard the case or the Supreme Court of Canada, the second was approved by both).

Mr. Pollay's expert report in this trial (Exhibit 1381) is very similar to the one he presented in 2000 and for good reason. The Tobacco Act trial took place shortly after this current lawsuit had been filed, which means that the documents that Mr. Pollay reviewed for one case could be expected to be essentially the same as in the second. The "cut off" period being applied to evidence on this trial is about 2000.

It was Doug Mitchell who managed RJR/JTI-Macdonald's offence during the Tobacco Act trial, who tried to prevent Mr. Pollay from being qualified to testify and who tried to damage his testimony during cross-examination.  Justice Denis, who conducted the trial, did not seem to have found Mr. Mitchell very persuasive. (Justice Denis said very nice things about Mr. Pollay in his final ruling.)

Undeterred, Mr. Mitchell took the same approach as he had eleven years ago, even asking many identical questions. (Why was the "Youth Target Study" a described as a major study by RJR? How many documents did you see from RJR-Macdonald showing research on people under 18 years of age?  Do you know what the market share for Vantage cigarettes was? etc.)  It will be some months before Justice Riordan will rule on this case and allow us to know whether the same challenge on essentially the same opinion will yield different results.

The pugilism of cross-examination

There must be a code-book of court-room tactics that gives names to the various moves that are made by lawyers against witnesses from their opponents. I hope to find one so that I can better describe this stage of the trial, when lawyers seek to diminish the impact of their opponent's expert witnesses.

As a spectator, I felt like I was watching a combat sport - but a different one than Mr. Potter's cross-examination yesterday. It was as though we have moved from a slow-paced wrestling (grappling of ideas, attempts at a takedown) to a fast-paced boxing match. Mr. Mitchell kept a steady round of jabbing questions, hitting at Mr. Pollay and his report from several angles, often on the same point.

Well, not a boxing match, exactly, as Mr. Mitchell was the only one wearing gloves. Because Mr. Pollay could only answer the hostile questions put to him, he served more as a punching bag than an opponent.

Unlike Mr. Potter, who had used open-ended questions which allowed Mr. Pollay to provide content, Mr. Mitchell favoured questions for which the answer would be a simple (and damaging) "yes" or "no".Like a good punching bag, Mr. Pollay took the beating without showing much impact on his professional standing. Nonetheless, it must have taken a personal toll, and he looked tired long before the end of the day. This is not a job for the feint of heart.

There was a lot of adrenaline in the room, and the whiff of middle-aged testosterone. More than 20 lawyers leaned forward in their seats as they watched intensely. Only Judge Riordan leaned back in his chair.

Mr. Mitchell's attempt to discredit

The purpose of Mr. Mitchell's questions today seemed aimed at establishing that Mr. Pollay a) doesn't know very much about tobacco companies or marketing b) was biased in his selection of documents, c) was lazy in reviewing the documents produced during this trial, d) mischaracterized the documents he cited, e) lacked scholarship or intellectual integrity.

He quizzed Mr. Pollay on his general knowledge of the corporate history of JTI-Macdonald, and probed where there were holes in his knowledge. He listed the name of several corporate officials who had appeared during this trial, and asked Mr. Pollay to identify their positions in the company.

He pounced on any hesitations or qualifiers as indications of dishonesty or ignorance. For example, when Mr. Pollay began an answer about the way the Print Measurement Bureau measured subscribers by saying "I believe..." Mr. Mitchell sneered "Are you speculating?"

Mr. Pollay's contribution to the public health understanding of tobacco marketing has been to analyze and articulate the patterns of activity of tobacco industry marketing and to distill the data from hundreds (or thousands) of marketing plans into their core characteristics. To illustrate these general themes (i.e. "friendly famliarity"), he cites short passages from industry documents which capture the idea. Mr. Mitchell pounced on several of these references, suggesting that the passages chosen were not properly cited or that they did not support Mr. Pollay's conclusions.

Mr. Pollay did not pass the specific knowledge questions, and it was clear that in the decade since he has written the report the details of some of the documents he had cited had faded from memory. He declined to give answers when he was not absolutely certain (such as the exact date certain laws came into force). He did so at the risk of making his memory look less sharp than the steel-trap minds of these legal teams.

He did not, however, concede any of his conclusions or fail to defend them when the questions allowed him to do so. He defended his conclusions and when given the opportunity added more information.

Imperial Tobacco's cross-examination

ITL counsel
Craig Lockwood
Mr. Craig Lockwood belongs to the next generation of tobacco industry lawyers, but he does not look like a John Grisham-style corporate lawyer. He has instead the look of someone who has been (and is) expected "to go far" and who enjoys an intellectual challenge. There may be lawyers in this case who push the decorum envelope, but Mr. Lockwood is not among them.

When his turn to cross-examine Mr. Pollay came after the lunch break, he showed that he did not need a sneering tone of voice or rhetorical devices to land some pretty hard questions on the witness.

He followed the same path that had been set by Mr. Mitchell in pointing out the work not done by the witness. By illustrating the documents not reviewed or cited in the report he tried to leave the impression that Mr. Pollay had been unduly cherry picking. He also returned to the theme of Mr. Potter's questions yesterday -- that the activities of his company were no different than those of other manufacturers, who similarly target young markets.

In the afternoon, Mr. Pollay seemed better prepared for these questions. If the real interest of marketing was for smoker reassurance and not for switching, why did the term "reassurance" appear so infrequently in the documents from Imperial Tobacco? And why is the term "pre-quitter" used only in a few places? If you are going to count references, then you should also use “concerned smokers," and "dissonant smokers", Mr. Pollay explained.

The plaintiff's response

The plaintiff lawyers hardly blinked as they watched their witness and the judge carefully over the day. Bruce Johnston intervened on very few occasions, and sent no signal that he thought his witness needed protection, no matter how tough the pounding.

When his turn came to follow-up on the questions from the defense, he focused on a small number of issues. He pointed out that there were 30 million pages of documents that had been produced by the defendants. ("That's an awesome number," said Mr. Pollay, admitting that he had not looked at them all).

Mr. Johnston used his questions to remind the court that the reason that there were no records of targeting young smokers at RJR/JTI-Macdonald was because the orders had come down to destroy any such evidence (Exhibit 656) and that Rothman's analysis of competitor activities had concluded that "RJR generated many studies and advertising campaigns focusing on starters i. e. 12-16 year olds." (Exhibit 762)

He also followed up on one of the few topics where Justice Riordan had shown interest (for the most part, the judge did not take notes today).

"You were asked whether you had studied the question of whether consumers had been misled. Were you asked to answer that question?"
"No, I was not."

"In your opinion as an expert in marketing, were the marketing strategies as conceived and implemented misleading ?"
"Yes, I believe they were misleading by offering reassurances and by their failure to provide information that would have informed consumers."

At about 3:30, Mr. Pollay was thanked by Justice Riordan for his efforts and his "bravery" in facing the Montreal winter, and left the courtroom.

The empty federal chair

Each day this week there has been a reminder of the impact on this trial of the release of the federal government. Today's came in the form of a misrepresentation (as I understand it) of events during the trial of the Tobacco Act.

Mr. Pollay had referred in his expert report to a document from Imperial Tobacco showing that the company included "starters" in its definition of "switchers" had not been produced by Imperial Tobacco.  Mr. Lockwood produced a document from that trial showing that, indeed, the "Switching Analysis" in question had been filed as an exhibit in that trial. (It was exhibit D-179 in that case, and in this trial is Exhibit 989.32). On face value, it looked like Mr. Pollay had made a mistake.

What Mr. Lockwood did not show was the trial record which records the federal government - in the form of Mr. Maurice Regnier - challenging Imperial Tobacco for not including this document among those shared during discovery. The document had been found on the Brown and Williamson website. The document was only forked over after this specific request had been made.

In other words, Mr. Pollay was right in that the report had not been 'produced' during the initial discovery (although it was later 'produced' as an exhibit). But Mr. Regnier, who would have remembered having to hound Imperial Tobacco for the document was not on site to make this point. As a result, Mr. Lockwood was allowed to present a half-truth to the court that has the effect of a mis-truth, and which was intended to diminish the credibility of an important witness.

In other news

Charlottetown's The Guardian reports that UK-based tobacco companies Carreras-Rothmans and BAT have asked to have the provincial suit filed against them dismissed.

The Montreal trial does not sit next week. Two expert witnesses for the plaintiffs will appear the following week -- pneumologist Alain Desjardins on February 4 and 5, and pharmacologist André Castonguay on February 6 and 7.

Wednesday, 23 January 2013

Day 105: Repetition and Consistency

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

Today (Weedless Wednesday) was Richard Pollay's third day of testimony as the expert witness for the plaintiffs in the Quebec tobacco class action suits.

Mr. Pollay spent his professional life on the "wet coast" at Vancouver's UBC, and his tanned face suggests that so far this winter he has been staying in sunnier parts. If so, the sudden cold snap that hit Montreal just in time for his testimony might have made him question why he agreed to appear in January.

The plaintiffs, however, are unlikely to have any second thoughts about their choice of expert witness after this week. As one might expect from a professor of marketing, Mr. Pollay made his testimony with a happy blend of pedagogy and salesmanship.

It certainly seemed to go over well with the most important customer in the room, Justice Brian Riordan, whose body language and questions to the witness suggest he was an appreciative audience.

Tying up loose ends

Yesterday, Mr. Pollay had made occasional references to information he had seen in documents without being specific about where exactly the information could be found. Justice Riordan made a pointed comment that he found such answers "not very helpful" as it did not allow him to use them.

Not surprisingly, Bruce Johnston acted on this prompt and the first part of this morning was spent showing documents to Mr. Pollay which confirmed statements he had made yesterday.

These included:
* Bob Bexon's 1984 memo (Exhibit 267) that calculates the number of quitters is 5 times higher than the number of switchers.
* A memo from Imperial Tobacco's files (Exhibit 1330), where BAT's Paul Bingham admits that he ghost-wrote Jean Boddewyn's paper against tobacco advertising.
* A RBH paper that talked of brand loyalty among smokers being extraordinarily high. "On a
scale of 1-10 - if Pepsi brand loyalty is a 4, cigarettes are a l0."  (Exhibit 1178)

This exercise also allowed Mr. Pollay to reinforce many of the themes of his report, as well as highlighting some memorable citations from the documents.
* "A consumers perception of a cigarette is based 80% on Pack/Image and 20% on taste." (Exhibit 1178).
* “If the last ten years have taught us anything, it is that the industry is dominated by the companies who respond most effectively to the needs of younger smokers. (Exhibit 298.22)
* There is nothing, nowhere, nohow we would ever dream of doing to influence young people in terms of their decision to smoke. On the other hand, once they have made that decision, they become an incredibly important part of our marketing strategy. We will go out of our way to ensure that our products and brands are relevant to young Canadian smokers. (Exhibit 1146.1)

A tour of Mr. Pollay's Advertising Collection 

Attached to Mr. Pollay's report is a set of 107 advertisements which he collected over several decades. These pictures were put on the trial record and will soon be available as exhibits 1381.1 to 1381.107.

A series of ads from this collection were displayed on the overhead screens as Mr. Pollay was asked for his insights into the design of the ads and the imagery used in them.

"Using sports is desirable for 2 reasons. It links your brand with athleticism and health and the celebrity of sport. It also attracts the attention of the young, who are more interested in sport.

"The reflection of a person's face [in the Extreme Sports Ads]conveys how you will be seen.  A brand is important because it affects how people see you."

Although almost everyone in the room was old enough to remember a time when tobacco advertising was ubiquitous, the ads displayed gave the impression of being from a much more distant past than the written documents that are normally displayed overhead. It was a "what were we thinking!" moment.

Rebutting the Rebuttal

Immediately after lunch, Mr. Johnston asked his last question by inviting Mr. Pollay to clarify a criticism made in by Nobel-prize winning economist James Heckman on behalf of Imperial Tobacco.

This distinguished economist explains at the opening of his expert report that he had "been asked by counsel for the Defendants to evaluate whether in his October 2006 report in this matter Dr. Richard Pollay has provided a reliable basis for concluding that a causal relationship exists between tobacco company advertising and aggregate smoking." 

Bruce Johnston asked "Where you mandated to show that there was a causal relationship between advertising and smoking?" and was told "No."  Well, that certainly explains why there is no such explanation in the text. But what prompted such a rebuttal?

(Mr. Heckman's report is not yet finalized and nor is the discussion around it. Imperial Tobacco had asked for special access to Statistics Canada data, a request which was refused by Justrice Riordan in a June 2011 ruling. The company may have been so confident that the Court of Appeal would agree with them that they seem to have ignored the direction in his ruling that the witness should begin work immediately with the data available. Now that the higher court has rejected their request, Ms. Glendinning has pointed the finger at the (absent) federal government counsel as the reason why the report was not finished.  Justice Riordan offered to intervene if necessary. Another charge against the government's empty chair!)

Given that the tobacco companies hired an expert to say that Mr. Pollay was wrong about advertising causing smoking, one might have expected that he would be allowed to actually give an opinion on the subject. It was not to be. Today they objected to that very question being put to him. "We are in a trial from Kafka!" observed Bruce Johnston before thanking his witness and sitting down.

The cross-examination

Simon Potter was the first of the industry lawyers to question Mr. Pollay, just as he had been with Mr. Proctor last month.

His first question doubtless caused some embarrassment to Mr. Pollay, who had testified on Monday that he had not been involved in the Insolia case which resulted in a judgement critical of his work. He repeated today that he had not been involved in the case, and that he had looked it up in Lexis/Nexis and found none of the lawyers' names familiar. His CV (Exhibit 1381.108), however, gave a different account, and reports that he had produced an affidavit for the case in 1998.

When this was pointed out to him, Mr. Pollay said contritely. "Oh, dear. I am mistaken. I don't remember the case or the affidavit. I was mistaken. I stand corrected." It was the last time that Mr. Potter got the answer he wanted.

Mr. Pollay was able to step over several traps that I identified in the questions put to him in this cross-examination. "Are you aware that the tar and nicotine levels (on an ad from the mid 1980s) were determined according to a method imposed by the government?"  he was asked. A simple "yes" might have helped the industry's position that it was the federal government that established the rules (while in fact they had no legal authority to do so until after the ad in question), but Mr. Pollay didn't bite. "I honestly can't speak to the process," he said.

Nor would Mr. Pollay concede that the small health warning on the bottom of cigarette ads constituted "repetition" of health information. "It is not a repetition of impressions," he said "because fewer than 10% will read fine print - and that is definitely fine print!"  

The second approach tried by Mr. Potter was to try to establish that the activities reviewed over the week were consistent with the behaviour of all manufacturers. "Knowing your customer" was true for all manufacturers and service providers, he suggested. "Companies should do consumer research." "Brands are everywhere.""Cigarettes are not the only things that have brands and brand families." "Lifestyle advertising is ubiquitous" "All of sponsorship is designed somehow to give value to the name of the company."

For the most part, Mr. Pollay agreed with his suggestions. But he would not offer any support to the "societal consensus" argument that Mr. Potter laid out at the beginning of the trial. He refused to bite when he was asked to agree "that this is part and parcel of our society's way of making sure that offer matches demand."

"I am not sure where society fits into this picture. It is certainly how management tries to make an offering that will be successful in the market place." said Mr. Pollay

Over the afternoon, Mr. Pollay was asked about mature markets, the role of advertising in growing a market, the skepticism that consumers direct towards advertising. His answers were consistent with those he had given to Mr. Johnston, although he used the opportunity to explain further why he disagreed with Mr. Potter.

It took about 2 hours (including break) before Mr. Potter concluded with "those are my questions" and sat down.

Tomorrow, Mssrs. Doug Mitchell and Craig Lockwood are expected to complete the cross examinations on behalf of JTI-Macdonald and Imperial Tobacco. It is expected to be Mr. Pollay's last day of testimony at this trial.

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.

Tuesday, 22 January 2013

Day 104: The soul of persuasion

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

Richard Pollay's second day on the stand at the Montreal trial of the Quebec tobacco class action suits was a rich and relatively uninterrupted presentation on Canadian tobacco marketing.

Mr. Pollay was not asked to comment or elaborate on his Expert Report (Exhibit 1381), which is considered to have been "read in" to the trial record. Instead, as he had done during his questions to their first expert witness, Robert Proctor, Mr. Johnston chose to ask Mr. Pollay to comment on other documents that have been gathered into the court record.

Those he selected were among the most compelling and readable accounts from within the marketing departments. By the content and the candour with which they are written, these records are among the "hot docs" or "smoking guns" in this trial record. With the added benefit of Mr. Pollay's insights they became even more valuable, and help establish a context for other documents and testimony.

Justice Riordan clears the way for the plaintiff's questions 

Bruce Johnston's tactic of using documents not referred to in the expert report must complicate considerably the work of the defendant lawyers, who consequently have to prepare against all documents on record. ("Can you give us a moment?" was the repeated request as they searched for the next unexpected document.)

The defense team tried to prevent this happening, first by objecting to questions that went beyond the content of Mr. Pollay's report. Justice Riordan made it very clear that he was not sympathetic to this argument and that he intended to allow experts to "comment on the proof." 

Their second attempt was to suggest that documents that had been entered as exhibits as a result of the May 2 ruling should not qualify as "the proof." On this point, Justice Riordan also gave them little comfort. He said that although the 'truth of the statement' being discussed had not been established, the witness could still comment on the fact that it had been made. (He allowed for a standing objection to such questions to be automatically entered, but dismissed them all.)

That is not to say that the defense lawyers were not successful in blocking some questions or testimony, as there was at least a handful of concerns were agreed to by Justice Riordan. He did not, for example, permit a question that would have allowed Mr. Pollay to contrast the industry's position when challenging laws that advertising bans had no effect with their internal view that it was among the causes of reduced cigarette consumption. (Exhibit 762) Nor would he allow Mr. Johnston to ask for Mr. Pollay's views on the reputations enjoyed by industry consultants and witnesses.

The highlight tour

The documents presented today allowed Mr. Pollay to cover many of the points that the plaintiffs have sought to establish over the past months, and to explain some of the key concepts of his expert report.

He disagreed with the testimony by several industry witnesses that the industry did not have the required credibility to communicate with smokers about the harms of smokers. Mr. Pollay referred to Imperial Tobacco survey results showing that smokers were more likely than not to consider the industry credible (Exhibit 987.21). On issues where the communication went against the industry's interests, this credibility would climb further, he said.

Exhibit 987.21
Mr. Pollay spoke frequently about the importance of brands to the "transformational advertising", that builds a product personality. Doing so takes sustained and consistent effort, happens at a "glacial" pace but has a long-lasting impact.

Brands are particularly important element of tobacco marketing, he said, as cigarettes were "badge products - a display of identity". He explained that the industry felt it was important to "brand them [smokers] while they are young" as smokers' loyalty to their brands was extreme. "On a scale of 1 to 10, it is a 10. Despite smokers being conflicted, they keep coming back and they come back to the same product."

Brands not only provided identity to recruit new smokers, they also provided reassurance to smokers that were at risk of quitting. Marketing to these smokers would "provide them with a brand imagery reinforcement so they can feel good about themselves." 

Marketing could help overcome health concerns, as these were subject to the "wall paper effect" and "becoming part of the background."  Even the industry's refusal to admit that cigarettes caused cancer had a marketing effect, as "the continuing litany of denial helped the smoker rationalize that there was not yet enough evidence that the case is proven conclusively. All of that helps the smoker rationalize their continued nicotine dependence."

Mr. Pollay said that quitters were a major concern for the companies, and that Imperial Tobacco recognized that the number of potential quitters ("pre-quitters") was four times that of the population that were potential switchers. The marketing department at Imperial Tobacco calculated in the mid-1980s that if everyone who tried quitting was successful, the industry would collapse in about 3 years. (Exhibit 1110)

Exhibit 1110
It was these worries about quitting that led to an unprecedented research effort by Imperial Tobacco to try to "put brakes on the decline" and "prevent the catastrophe."

This project was Project Viking, and it included the distinct sub-activities Project Day ("to try and come up with products that might seem to be new and improved") and Project Pearl ("a public relations program"). 

Mr. Pollay and tobacco industry marketers agree

There were hardly any moments during the day that Mr. Pollay did not confirm or agree with the statements that were shown to him that had been written by tobacco company marketers. He essentially supported the written conclusions of some of the most senior marketers, such as Mr. Kalhok, Mr. Short, and Mr. Bexon.

On one occasion at least, the agreement seemed to go both ways. After the 1990 trial of the Tobacco Products Control Act, the marketing department of Rothmans, Benson and Hedges had assigned Connie Ellis to review the documents from its rival firms and to include this review in an analysis of the industry's strategies. The document which resulted from this work (A Strategic Review - The Canadian Tobacco Industry, Exhibit 762) has much in common with Mr. Pollay's perspectives.

As had Mr. Pollay, Ms. Ellis concluded that the marketing of ITL and JTI-Macdonald was not primarily to attract brand switchers, but was to offer reassurance to existing smokers and to recruit new ones. Mr. Pollay and she shared the view that Rothmans' market share had suffered because it had not made branding and imagery paramount, and had not pursued the youth market. (Mr. Pollay remarked that after this analysis, Rothmans had introduced Belvedere rock concerts and other youth-appealing promotions).

Exhibits discussed today include:

Exhibit 119.1  Assumptions and Strategies for marketing over the next 10 years (1976)
Exhibit 113A Social Currents 1976
Exhibit 141 The Players Family 1977
Exhibit 266, (266A) File Viking 1985
Exhibit 1110 Saving the Canadian Industry 1984
Exhibit 990.16 Project Viking  1986
Exhibit 987.21 Project Viking 1992
Exhibit 370 Project Day 1980
Exhibit 520-cry30 Tracking Study 1988
Exhibit 520-cry27 Youth Target 1987
Exhibit 520-cry32 Review of ITL Brand Strategies 1988
Exhibit 762  Strategic Review - The Canadian Tobacco Industry - 1994
Exhibit 536 Advertisement 1958

Landing on the Federal Government's Empty Desk

The federal government is no longer a party to the case, but it still seems to be at the centre of the tobacco industry's defense.

Another expert report was filed today, this time from Mr. Robert John Perrins, who is the Dean of the Faculty of Arts at Acadia University and also an expert witness for JTI-Macdonald. Despite his university responsibilities, Mr. Perrins has found time to write a very lengthy report reviewing activities within the federal government, in particular within Agriculture Canada and Health Canada.

The most recent supplement to his report, made available today, brings the length of his combined reports to about 750 pages. A quick scan of these suggest that he doesn't put the federal government in a very good light. It is hard to say whether he does so unfairly as his report speaks of events that have not previously been documented or made public.

Mr. Perrins wrote his reports on the basis of papers released to the industry during the discovery phase of its "action in warranty" against the federal government. This lawsuit was dismissed by Quebec's Court of Appeal last fall, but it would appear that the fact that the government is no longer in the case does not mean that the industry has to hand the documents back or pull back any expert reports written on them.

It seems a little odd that the tobacco industry now has possession of what seem to be many thousands of documents that have not been shared with public interest groups, with parliamentarians, with journalists or with other participants in the development of health policy. These include documents marked "advice to the minister" or given other classifications that would normally make them difficult to release except in the context of litigation.

No one with a health perspective can conduct their own review of the documents to see whether Mr. Perrins has his story straight. The industry has more insight into and ammunition against government policy. Curiouser and curiouser.

(Links to Mr. Perrins reports: Part 1, Part 2, Part 3, supplemental report, second supplemental report).

Tomorrow will be the third day of Mr. Pollay's testimony, and it is expected that the cross-examination by the industry lawyers will begin. Thursday is expected to be Mr. Pollay's last day of testimony. 

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.

Monday, 21 January 2013

Day 103: Richard Pollay passes the scream test

For information on accessing documents, see note at the end of this post  
This witness [Richard Pollay] is a virtual living encyclopedia on tobacco advertising and a scrupulously rigorous marketing researcher.
Honourable André Denis
decision on JTI MacDonald v Canada 

Professor Richard Pollay
Today the plaintiffs in the Quebec tobacco class actions introduced their third expert witness to this trial. His name is Richard Pollay, he is a retired Professor of Marketing from the University of British Columbia's business school and he is another highly-experienced witness for public health.

In tobacco politics, it is the vigorous opposition by industry to new policy measures that is often used as a gauge of how effective those measures will be. Policies like plain packaging and advertising bans are said to pass the "scream test" because the industry makes noisy and prolonged opposition to them.

It looks like the scream test also applies at this trial. As they had with Robert Proctor in December, the companies went hammer and tongs at Richard Pollay's credibilty and sought to have him declined as an expert witness in the trial.

The attempt to disqualify Mr. Pollay was a long shot. He had already been accepted twice as an expert witness by the Quebec Superior Court, both times in trials involving tobacco marketing. (These were the industry's constitutional challenges to the federal government's 1988 and 1997 tobacco advertising laws). His accomplishments, which are listed in a 44 page CV (Exhibit 1381.1), include contributions to Surgon-General's reports and other highly credible publications.

To no-one's surprise, the companies were unsuccessful. After a short break to consider his decision, Justice Riordan ruled around 3:15 today that Mr. Pollay would be accepted as an expert in all three of the areas the plaintiffs had requested -- marketing, marketing cigarettes and the history of cigarette marketing.

While announcing his decision, Justice Riordan made clear that the arguments of bias that were made against Mr. Pollay and earlier against Mr. Proctor do not sway his assessment of their expertise. The "human issues" in this type of case mean "it is not unusual for experts to have strong opinions – it would be unusual for them not to have strong opinions. ... I don’t see this as a bar from being able to testify." Where it might come into play, he said, is when assessing the value of the evidence. "The ability to transcend the personal point of view of the expert is relevant for me when it comes to probative value," he said.

Shortly after, Mr. Pollay's expert report was filed on the court record. (Exhibit 1381).

Mssrs. Potter and Mitchell hit the ice

As they had with Mr. Proctor, the industry's legal team used its enforcers, Mr. Simon Potter (PMI/Rothmans, Benson and Hedges) and Mr. Doug Mitchell (JTI-Macdonald) to lead their defense against this witness. (Mr. Craig Lockwood for Imperial Tobacco, took a less prominent role and offered more substantive concerns).

The attempts by Mr. Potter to discredit Mr. Pollay ranged from the straightforward (Mr. Pollay has not taught for as many years as this lawsuit has been underway), to the somewhat questionable (as a University professor he does not have the real world experience to qualify as a marketer), to the downright bizarre (he cited comments from a Judge in a case to which Mr. Pollay was not a witness).

One of the more bewildering attacks by Mr. Potter was his view that Mr. Pollay should not have written that cigarette sales in Canada fell by 7% in the year following the implementation of the first advertising law, even though Health Canada reports confirm that between 1988 and 1989, sales fell from 51.34 billion to 47.76 billion, or 6.9%.

Getting Away With Murder
A flyer for Richard Pollay's
talk on Tobacco Advertising
was printed on the back
of an historic ad
Ironically, Mr. Potter complained about the overlap between Mr. Pollay's current report and those he filed in previous cases. Yet there were also striking similarities between the comments Mr. Potter made against Mr. Pollay's credibility a decade ago and his comments today. It would seem that Mr. Pollay has provided them with no new dirt in over a decade.

Among the complaints rehashed from previous unsuccessful attempts to block Mr. Pollay were questions on the evocative titles given by Mr. Pollay to his speeches and publications about tobacco marketing. Mr. Potter drew attention to a flyer for a speech titled "Getting away with murder" and a video of a lectuer called "Pack of Lies".

"I put it to you you wanted to catch people's attention," Mr. Potter accused the professor of marketing. Um, isn't that exactly what you might expect of a marketer?

Mr. Potter took risks in his questions, and these did not all shake out in his favour. He criticized a letter that Mr. Pollay had written to a colleague who was testifying on behalf of the tobacco industry. In his letter, Mr. Pollay had provided some industry documents and offered more if she had the "intellectual curiosity" to read them. The filing of Mr. Pollay's letter by Mr. Potter allowed the plaintiff lawyer, Bruce Johnston, to file a document originally attached to the letter.

The document in question is a now-infamous memo from RJR marketing chief Claude Teague which reflects on how to build the youth market with its insight into industry thinking. "Realistically, if our Company is to survive and prosper, over the long term, we must get our share of the youth market" he wrote in 1973. (To rub salt into the wounds, this exhibit, when available, will be found among RBH's exhibits which start with the number 30000).

Not all roses for the plaintiffs.

Although Mr. Pollay and his report were accepted by Justice Riordan, the judge made an unusual intervention to express his reservations about the content of the report even before any questions were put to the newly-qualified witness.

Mr. Craig Lockwood had raised concerns with use of the expert opinion to make reference to new documentary evidence. (He declined to use the term "document dump"). He asked that pages 19 to 35 of the report be removed, as they were "a mass production of documents without the expertise to back them up." 

Justice Riordan did not agree to the request, but he expressed his own concerns with the content of those passages.  "I find that much in here is of limited or no assistance to me in this file," he said, adding that after one year of trial "the history of marketing and general theories of marketing ... are of no use to me."  

"Much of it is not relevant, but that said I am not going to strike it, I will allow you to argue on it and cross examine," he told Mr. Lockwood.

Mr. Pollay's marketing insights

Bruce Johnston began his questions to his witness with only an hour left in the normal sitting day. In the time remaining, Mr. Pollay was asked to shed light on some of the most philosophical and reflective marketing documents introduced today.

The first of these "big picture" reflections was the one contained in one of the sales lectures that was prepared by the upstart Patrick O'Neil-Dunne for his newly created sales force for Rothmans cigarettes. In a 1957 document (Exhibit 758.11), he had reproduced a 'motivational research' analysis from earlier in the decade. The second was the now-familiar "Kalhok/Short" marketing review prepared about three decades later for a BAT marketing conference. (Exhibit 113)

These documents were a launching pad for questions that allowed Mr. Pollay to explain the various roles that advertising played in maintaining smoking. One of these he explained as "friendly familiarity." "When you glamourize a brand, you inevitably glamourize the entire product category. The mere omnipresence of cigarette advertising induces people to mispercieve how commonly people engage in the behaviour and how much social approval they will get if they indulge in the behaviour."

He described how the "health cloud" that has hung over cigarettes from the mid-fifties drove marketing behaviour, such as the launch of filter cigarettes, which the companies learned to market in "subtle" ways.

Mr. Pollay said there were two factors which made cigarettes a unique consumer product from the perspective of marketing. One was the need to respond to the health cloud that hung over the product, the second was that regret felt by the vast majority of smokers. These unique factors made it difficult to generalize from other industries he said, and they "inform our understanding of what he industry did, when they did it and why they did it."

Smokers needed reassurance, explained Mr. Pollay as they "were becoming increasingly ashamed, guilty, subject to increasing harassment from their children, their friends and neighbours." The companies recognized this serious problem, working individually and collectively to foster  "social acceptability."  To the companies "Every challenge is an opportunity." he said.

(New exhibits on this topic were introduced at the end of the day -- Exhibit 119.1 and 1146.1. Also introduced was another historic gem from Patrick O'Neil Dunn - Exhibit 758.6)

Tomorrow the plaintiffs will continue to question Mr. Pollay. On Wednesday and Thursday, the tobacco company lawyers will conduct their cross-examination.

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.

Thursday, 17 January 2013

Day 102: What is a reasonable delay?

When I arrived at the courtroom of the Montreal tobacco trials this morning, the lawyers were all dressed up in their legal robes. This is a convention reserved for days when there are witnesses, so it seemed natural to assume that the plaintiff's expert witness, Mr. Christian Bourque, would continue to be questioned about his report on the polling conducted by Imperial Tobacco over several decades. A natural assumption, but not a correct one.

(Yesterday Justice Riordan reined in the plaintiffs when they asked questions about polling results that were not included in the report. He had given them the choice between continuing today by sticking to the straight and narrow of that report, or asking to file an amended version).

As these things go, there had been an overnight exchange of e-mails (one of which was reportedly sent at 3:00 a.m. -- this is a scary business!), and other options were on the table. In the end, it was Justice Riordan's second option which was selected, and Mr. Bourque is now scheduled to return on March 4th for one day.

The sudden hole in the morning was soon filled with further trial management discussions and unresolved issues.

Tit for Tat? Not if it causes a delay

Earlier this week, the defendants had confirmed that they want to argue "pre-defense" motions that will try to throw out some or all of the claims against them on the basis that they have not been proven.

Today, Philippe Trudel reminded Justice Riordan that the ability of the plaintiffs to ask for sections of the defense to be struck down were left hanging. (In late November 2009, Justice Riordan made a ruling on such a request that favoured the plaintiffs, but the appeal was suspended as part of a pre-trial agreement to schedule the trial).

Mr. Trudel offered that the issue of paring down the defense might also be discussed at the same time that the tobacco companies presented their rationale for paring down the claims against them. It wasn't clear if he was bluffing or whether this was an option the plaintiffs were seriously considering. In either event, Justice Riordan blew this suggestion out of the water.

He didn't want any delays in the proceedings, said the judge.  "My firm intention is to get to the end without suspensions or delays. Unnecessary steps which risk a suspension, I will avoid." He pointed out that the case had been underway for 15 years, and that it needed to come to a judgement. "If I wasn't clear before, I am now." His tone was even more blunt than his words.

Mr. Potter as witness

Bruce Johnston was in court for the first time this week, and stood to signal that the plaintiffs planned to raise objections about Simon Potter being on Imperial Tobacco' list of witnesses.  "Mr. Potter says it is the same thing as his being on [the plaintiff's] list, but we say it is not the same thing." 

(In July 2011, Justice Riordan had turned down RBH's request to have Mr. Potter struck from the plaintiff's list of witnesses, saying however that "they do not have the right to call Mtre. Potter as a witness unnecessarily." He committed that the court "will not allow Mtre. Potter to be called unless and until it is clear that there is no other alternative.")

Justice Riordan made clear that he shared concerns about the prospect of Mr. Potter being both lawyer and witness in this trial, but fell short of saying he would intervene to prevent it. "I have written at length about the difficulty of calling an attorney as a witness. I understand that Imperial Tobacco has him on the list of witnesses. I am going to apply the same rules as I did with the plaintiffs. If there is another way of making proof, I strongly urge you to explore it, because it is not the best way to proceed."

He looked at Suzanne Coté, who was leading Imperial Tobacco's defense in court today. She gave very cold comfort, and implied that Mr. Potter's fate as an ITL witness hinged on Justice Riordan's decisions on their pre-defense motions. "There may be a way, depending on the result of the February 14th discussion," she said.

Planning for April

It is still far from clear what will happen in the weeks after the plaintiffs wind up their case at the end of March, and today Philippe Trudel raised again the importance of having some clarity about whether the trial was sitting in April or not. "We need to block in dates to be able to organize our schedules, I want them to tell us how long they want before presenting their defense."

(There are very different business considerations for the two teams of lawyers. For the plaintiffs, an empty month adds more overhead to the financial burden of working on contingency, but a scheduled pause might permit them to find time for paying clients. For the defendants, an extra month adds to billings. As a tobacco lawyer famously said "The way we won these cases was not by spending all of our money, but by making that other son of a bitch spend all of his.”)

Mr. Trudel put his concerns bluntly. Are the plaintiffs going to have to wait until the Court of Appeal has ruled on the decisions on the pre-defense motions. A forceful "No Way!" was the response from the bench. Justice Riordan then asked the companies to share their thoughts.

Suzanne Coté uncharacteristically gave a rambling answer to the effect that they would wait and see how the rulings went on their pre-defense motions. "I can't say that a two-week delay will be sufficient. Nor am I gong to say we need a 6 month delay."

Simon Potter was a little more artful. He acknowledged the "duty of the Superior Court" to make a judgement and referred to the complexity of the case. He suggested that the motions that are expected to seek the case to be thrown out or narrowed would hasten evens. "We see our motions heading towards a shortening rather than a lengthening of the trial."  A pause would be a good investment of time, he said.

Bruce Johnston pointed out that the case had been working with the same allegations for over a decade and that the defendants "must have some witness they know they are going to call." 

Justice Riordan agreed with this point, and formally instructed the defense team to "prepare your case as if those (pre-defense) motions are not going to be heard. I am not saying that they wont be heard. I am instructing you to be prepared to start after a reasonable delay."  

He poured further cold water on the idea that the pre-defense motions would be heard. "I will have a better feeling after I have heard you on the 14th [of February, when the legal justification for the pre-defense motions will be presented]. I doubt that I will say anything more than 'are you ready to go after a couple of weeks after the end of the proof'."

More expert witnesses for the defense? Maybe. Maybe not.

On Monday, the defense teams had indicated that they might want two additional exert witnesses (one on warnings, and one on consumer surveys). Discussion on that day had left the impression that they would have until the end of March to confirm this intention. The fact that this went against a previous agreement on timetables prompted a reflection, and Justice Riordan is now proposing that the industry present their reasons for such a request on February 14th at the same time they will be present legal arguments for their pre-defense motions.

Well before noon, Justice Riordan pointedly unplugged the power cord to his computer and asked "Are there other things?  I have a judgement to write."  The court adjourned until Monday morning. 

Next week, the plaintiff's expert witness on marketing, Dr. Richard Pollay, will testify.