Thursday, 14 February 2013

Day 114: Wayne Knox - the Wild Card

Time flew by on Thursday during the testimony of Wayne Knox in the 17th floor courtroom of Montreal's Palais de Justice. He was the forty-first witness at the tobacco trials, and one of the most informative, insightful and entertaining witnesses to date.

Wayne Knox
Mr. Knox is of an age when many have retired - "Seventy-one and counting!", he laughed as he answered the routine questions after being sworn in. But other than the physical signs of age (he looks like a slightly shop-worn Santa Claus), there was nothing about him that indicated that he was past his best before date. He voice was strong, and he used it to good effect, peppering his replies with anecdotes and details that suggested he has been following the trial with interest.  Many times his testimony sounded like a good dinner table conversation.

Mr. Knox was once in charge of the mighty market research department at Imperial Tobacco. He appeared at the trial on the heels of more than a dozen other former Imperial Tobacco employees each of which has arrived with the benefit of days or weeks of pre-trial interviews with the company's lawyers. So it was natural to expect that Mr. Knox would have similarly been contacted by the companies to discuss the documents that the plaintiff's had given notice they wanted to discuss with this witness. Natural, but wrong.

Although Mr. Knox had worked with Imperial as recently as 2011, he presents himself as an independent person and a citizen in his own right. This, I think, was the first witness in this trial who faced Judge Riordan without any sense of loyalty to either the plaintiffs' team which sat three feet to his left or to the defendants' team, sitting three feet to his right.

On the one hand, he used the term "we" when talking about past actions of the company, and was clearly proud of the successes he led or was part of. On the other hand, he never sounded like he was trying to protect or defend the past.

Independence of thought was a sub-text that ran throughout his testimony. He spoke of the openness with which the market research unit ran (Mr. Knox did not care if his "free spirit" colleague, Bob Bexon, put "crazy things" in the minutes of his meetings), and of his "strong-minded" and "principled" friend, scientist Pat Dunn. His own views on the harms of tobacco did appear to agree with those of his employer (he reported mostly agreeing with the Surgeon General's report, even before he joined the company in 1967), but he spoke of no pressure to conform in this area.

This was the first witness from Imperial Tobacco who did not seem scripted - and without the script, no-one seemed to know what to expect. Some of his answers may have been a disappointment to the plaintiff's team, and some were certainly unhelpful to the defence. He variously contradicted and confirmed story lines that have emerged during the testimony of previous witnesses - and he never failed to be interesting.

It felt like a new ball game was underway and over the first part of the morning, the legal teams adjusted their strategies to the change of play. Bruce Johnston -- usually the most hardline questioner on the plaintiffs side -- soon shifted his tone from confrontational to conversational. Deborah Glendenning -- the Imperial Tobacco lawyer who must hold some kind of legal record in the most-objections category -- soon let the questions and answers flow uninterrupted. Mr. Knox's testimony seemed to be a minefield she did not want to walk on.

Judge Riordan seemed highly entertained, both by the content of Mr. Knox's answers and by the dynamic being played out in front of him. He was not the only one watching with interest -- Reinforcements from Imperial Tobacco's communications and legal departments arrived with notebooks that were busily filled during the day.

Although Bruce Johnston showed only a handful of documents to Mr. Knox today, he asked questions that went over much of the ground on which this trial is being fought.

Were young people or non-smokers targeted by marketing?
"We didn't have to... Enough of them smoked on their own" he said. Moreover, the presidents he reported to, Mr. Ed Ricard senior and Mr. Paul Paré "felt very strongly that we did nothing to attract the young non-smoking people." He later acknowledged that "a company clearly knows it's important to have starting smokers, the way every company and every industry has a need for new people.".

Was smoking considered to be addictive within ITL? 
"Depending on the point of time and depending on the number of people, some of us thought that it was, some of us thought that it wasn't." "My view changed when the definition of addiction appeared to change ... they say that it's as addictive as heroin and stuff, which is ridiculous." "The scientists were far more concerned about addiction – a lot more and a lot earlier than marketing."

Is there a safer cigarette or safer way of smoking? 
"I agree with Gio Gori that fourteen  milligrams a day is the same as not smoking"  "I had no trouble with people believing that [a lower delivery product was safer] because I believed it myself."

Were cigarettes designed to be compensatible? 
He reported that "our scientific new product development people were looking at all kinds of different ways", he left the impression that his marketing team did not engage too much in these specifics.

Did the company try to prevent people from quitting?
"It was part of what we did with some of our brands, in terms of giving them an option to continue smoking. In effect that prevented them from quitting." 

More destroyed documents? 

One of the likely reasons that Mr. Knox had been subpoenaed to testify was to allow him to validate proceedings for a conference that he and ITL research director, Pat Dunn, organized in 1984. The Smoking-Behaviour Marketing Conference took place in the Laurentians, and involved scientists and marketers from BAT companies in the UK, Germany, Canada, Australia and the U.S.

A curious thing about the 506 page record of this conference -- it seems to have been missing from the files of Imperial Tobacco. Like the scientific documents that had been purged from the company's files, this and other marketing records appear to have been "disappeared."  Justice Riordan agreed today that this document should have been in the company files, and allowed it to become Exhibit 1366.2.

The conference, as Mr. Knox explained today, was intended to showcase the Imperial Tobacco marketing success to other companies in the BAT group.

Mr. Johnston drew attention to several sections from the conference notes, including the opening comments by ITL's research director, Pat Dunn:
The basic question that begs a response is how do we provide smoker satisfaction from a lower tar base with specifically enhanced acceptability traits and at the same time help our consumer rationalize his decision to smoke in light of increasing external pressures.
And a conclusion on market research:
There is some information relating to quitters but an inadequate data base on starting . Since our future business depends on the size of this starter population set, it was considered important that we know why people start to smoke and this may be more important than why they continue to smoke.

As the day drew to a close, it was clear that the plaintiff's wanted more time with this witness. He will return on Tuesday, March 12th.

Next week - epidemiology. Jack Siemiatycki is scheduled to be in court throughout the week. The battle of numbers will be in full swing.