Monday, 18 March 2013

Day 127: Jeffrey Wigand's Credibility on Trial

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

It was more by chance than by design that two scientists who once held senior positions at U.S. tobacco operations testified sequentially at the Montreal tobacco trials. William Farone, who testified last week, had originally been slated for a different role in the trial, and was a late addition to the witness list. Jeffrey Wigand, who testified today, was returning for a cross-examination that had been postponed by three months.

The close scheduling of these two witnesses highlighted the similarities in their stories (both detailed how the scientific work at the companies had been subjugated in the 1980s to the lawyers' concerns about litigation), but also drew attention to the differences in the management of these stories at this trial by the two companies involved. Philip Morris seems to have taken a "ride it out" approach to William Farone, while BAT/B&W/Imperial Tobacco was determined to "shoot the messenger."

The story so far (or at least the Montreal part of it)

Mr. Wigand first appearance at this trial, some three months ago (December 10 and 11), soon snowballed into a messy legal fight over the company's right to subpoena Mr. Wigand's financial records (an attempt they making in both Montreal and in Michigan, where he resides.)

That skirmish resolved in Justice Riordan suspending Mr. Wigand's testimony until he returned with many of the financial records they were demanding. These included the corporate and financial records of his charity, Smoke-Free Kids, as well as details of payments he had received from that charity or from any law firms involved in suing tobacco companies.

The fun begins

There was no question that today's session was another grudge match between British America Tobacco and the former head of science for its US operations. Today was only one in a series of conflicts between these parties in the 20 years since Mr. Wigand was forced from the company, only to gain fame on the outside as the "Insider."

But with their demand for personal financial records, lawyers for BAT's Canadian operation signalled that "this time, it's personal." Not surprisingly then, you could cut the tension with a knife when Mr. Wigand returned to the witness stand, faced Justice Riordan, and affirmed that he would "tell the truth, the whole truth and nothing but the truth." 

But there was to be more legal wrangling before his testimony resumed. Within moments, Mr. Wigand was sent from the room for the first of many such occasions to allow the lawyers to argue out of his ear-shot. As he walked to the door, still using a cane, Mr. Wigand whispered to some of his supporters sitting in the public seating area "The fun begins..."

Justice Riordan, had a different take on the day. "Nothing is easy in this file," he observed.

The cross-examination

There was an interlude before the face-off between BAT/Imperial's Deborah Glendinning and Jeffrey Wigand, while Bruce Johnston completed the plaintiff's questions. (See below). But by mid-morning, the delayed cross-examination had begun.

From the outset, it was clear Ms. Glendinning was pumped for the occasion. With her shoulders drawn back, her chin jutting forward and her voice clipped, she looked and sounded ready for battle. She launched into a series of fast and angry questions to Mr. Wigand about the financial material he had provided and his contact with the plaintiffs.

She made it clear she thought that they were up to no good. "Did you discuss the questions that the plaintiffs were going to ask you today?" "Did you discuss the financial documents you were requested to produce?" "Did you sit in their office?" "Did they have questions for you?" "Who prepared these documents for you" "Are you sure?"

Jeffrey Wigand's tone was also hostile, and he made little obvious effort to provide clear answers to her questions. To make matters worse, he was often hard to understand (he talks quickly, and frequently omits both consonants and punctuation).

Justice Riordan intervened frequently, gently directing Mr. Wigand to not wander off track. Ms. Glendinning was less gently cautioned against arguing with the witness. Mr. Johnston's repeated objections to repeated questions were repeatedly sustained.  

None of these interventions had a lasting effect. At one moment as the judge held his head in his hands, his expression reminded me of my mother when she was surrounded by quarreling teenagers. "Lets just back off a minute and try to get this over in as pleasant a manner as possible," he pleaded in vain.

The money. 

Only part of the two-hour cross examination was focused on the financial information the witness had been required to produce. Because it is confidential (and filed under seal), those of us in the audience were not privy to the information in it. Because most of her questions reflected her doubt that the information was complete, it sounded like there was some lunch-bag let-down for a team hoping for something that would make him look like a witness-for-hire. My guess is that Jeffrey Wigand is far from a rich man.

Nonetheless, she did get some answers to her questions. This morning we learned that Mr. Wigand has a fee schedule which he provides to lawyers, but that he charges only for consultation on document research and not in connection with his testimony as a fact witness. He said today he had testified at about a dozen trials.

Over more than a decade, his main source of income has been in connection with his charity, Smoke-Free Kids. Since 2010 he has not drawn any salary from that organization and instead, at 70 years of age, has relied on social security, the US public pension.

Ms Glendinning pressed Mr. Wigand to explain how working with lawyers met the test of the educational  mandate of Smoke-Free Kids. He answered that the organizational mandate also included preventing kids from smoking, and that litigation was one way of achieving this goal.

She implied that Smoke-Free Kids had been set up by American plaintiffs' lawyers, pointing to the charity's receipt of $2 million from law firms, and the presence of one of the more notable/notorious pioneers of tobacco litigation, Dickie Scruggs, on the board of directors. (She did not miss the opportunity to point out that Mr. Scruggs "remained as a director until he was jailed for bribing a judge." )

The former employer. 

Running out of the "new dirt" that had been subpoenaed, Ms. Glendinning turned to the "old dirt" that was gathered by Brown and Williamson and which has gathered dust on the Legacy Site for over a decade.

These included allegations that:

* Mr. Wigand did not resign from the position he had before joining Brown and Williamson (at Biosonics)  but had been "forced to resign." (Curiously, not one, but two letters of resignation from that position were tabled in the court today - Exhibit 20057.1 and Exhibit 1469).

* His previous employer, Jack Paller, held him in low regard (Exhibit 20057). (Mr. Johnston was later able to file a Wall Street Journal story that chronicled the attempts of Brown and Williamson to smear Mr. Wigand and suggested that Mr. Paller's actions were part of this plan - Exhibit 1468)

Another judge's opinion

Ms. Glendinning's final challenge to Mr. Wigand's credibility still has me puzzled, as it seemed to have resulted in Justice Riordan being provided with important validation of Mr. Wigand's story.

She referred to Gladys Kessler's exhaustive final ruling in the racketeering charge laid by the U.S. Department of Justice, drawing attention to Judge Kessler's assessment of Mr. Wigand, and his testimony at that trial. I think this is the first time that any of Judge Kessler's conclusions have been discussed in this court. When Ms. Glendinning started to cite the ruling, Justice Riordan volunteered "I had been previously avoiding reading that ."

Judge Kessler had concluded that "Wigand’s [testimony about the Vancouver minutes] was unreliable, contradictory, and impeached on a number of points."  

If he had ever been embarrassed by those comments, Jeffrey Wigand did not let it show. "That was her finding," he shot back. "I stand by my testimony."  

The use of this document not only reminded Justice Riordan that he was following down a path paved by others, but it gave Bruce Johnston licence to pick up on other conclusions of Judge Kessler with respect to Mr. Wigand's testimony. He read into the record many extracts from the ruling, ones where Judge Kessler had not only accepted Mr. Wigand's version of events, but was highly critical of the lawyers' control of science and the destruction of documents.

The suspense is over  

Before the cross-examination had begun, another ruling in favour of the plaintiffs was announced by Justice Riordan. Three contested documents that are related to document destruction will now be admitted to this file. The judge did not explain his decision, but said that written reasons would soon be provided.

The three documents were discussed early in the trial, but were only argued before Justice Riordan last Monday. They are Exhibit 1467.1, 1467.2 and 1467.3.

The first dates from 1985, when Brown and Williamson's counsel, J. Kendrick Wells, advises that scientific records be purged of "deadwood" documents (including the Janus series on health effects).

The second, written four years later by the same Mr. Wells, discusses the need to "avoid the production of scientific witnesses and documents" -- i.e. keep science out of courts. In it, he cites concerns about the litigation underway in Montreal at that time (a constitutional challenge by the industry to Canada's first advertising ban, the Tobacco Products Control Act), and the possibility that documents from one country will enter into the court records in other jurisdictions. "The Canadian case is in an especially disadvantageous posture for document production."

The third document is drafted by a BAT legal advisor in early 1990. In it Nick Cannar outlines the procedures adopted to reduce the scientific material sent to its troublesome Canadian scientists, and the role of lawyers in vetting the information they received.

Bruce Johnston's questions on these documents had been suspended in December, pending this ruling. Today Mr. Wigand was available to comment, and Mr. Johnston asked him about related events at Brown and Williamson, where Mr. Wigand worked from 1989 to 1993.

Mr. Wigand said today that in the fall of 1989 the company became increasingly concerned about the "inconsistency" between the knowledge and writing of the scientists and "what was required to be said outside the company." As a result, he and other scientists were sent to Shook, Hardy and Bacon's office in Kansas City to be given a script on the public position.

He drew a link between these events and the turmoil over discussions at the September 1989 meeting of the scientists in Vancouver and the subsequent meeting among lawyers in New York City in early 1990.

"This document is part of the puzzle. It is the whole issue of what the scientists knew compared with what they said externally."  

"There was considerable degree of concern, particularly among the senior management and the legal team at Brown and Williamson of anything that was done at Imperial Tobacco Canada or any discovery or release of documents through litigation in Canada."  

He said that tests of the biological activity of smoke from Brown and Williamson cigarettes had been conducted in Montreal and "the biological activity of these brands was higher than other brands. This caused considerable alarm in the legal sections. Wells went to Canada and tried to sequester the documents."

Bill Neville: 1936-2013

As recently as last Friday, the work of Bill Neville as president of the Canadian Tobacco Manufacturers Association was discussed in this court. His name was among those of a handful of other witnesses who have authored or received documents that the plaintiffs wish to put on the court record.

Bill Neville cannot be re-called to this trial. He died last Wednesday while wintering in the southern USA.

Tomorrow is the return appearance of another witness. Jack Siemiatycki will testify on the effect of heterogeneity on his epidemiological conclusions. Stay tuned!

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:

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.