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.