Wednesday, 15 January 2014

Day 199: Wet, dull, dreary

Pathetic fallacy, as my grade 9 English teacher described it, was the literary tendency of the weather to mirror the mood. Would  false pathos then be the tendency of the mood to mirror the weather?

If so, we can blame the overcast skies and the unseasonable drizzle for what turned out to be a gloomy short week at the Montreal tobacco trials with virtually no bright moments or clear focus.

By noon today, Mr. Peter Hoult had finished his seventh day of testimony - the last three of which were part of JTI-Macdonald's defence against claims of wrongful behaviour by the company during four decades. (Mr. Hoult was a senior executive with the company for five of those years.)

This morning and yesterday afternoon it was the plaintiff's lawyers, André Lespérance and Philippe Trudel, who were putting their cross-examination questions to Mr. Hoult. This was no harsh interrogation: with their disarmingly gentle affect, they both engaged Mr. Hoult in an almost conversational way about the events during his career at RJR-International, including the time he spent in Canada.

This is not the fastest way to get an answer -- especially from a man who doesn't seem inclined to say "yes" or "no" when a paragraph of explanation will do. But it was a successful way to invite this talkative man to extemporize on topics that he may not have fully rehearsed with Doug Mitchell or other JTI-Macdonald lawyers. Some of his off-the-cuff comments - like those where he comfortably acknowledged the way in which lighter toned cigarette packages were known to convey a healthier brand - were unusually frank admissions.

I came away with the feeling that Mr. Hoult's comments this week are as likely to find their way into the plaintiff's closing arguments as they are to the defendants.

What's the information again? Risk? Romance?

Twice Mr. Mitchell had asked for his witness to describe the informational content in RJR/JTI-Macdonald advertisements. The purpose, he said, was to rebut the statement of the plaintiffs' expert witness in advertising that tobacco ads were devoid of information.

Both Mr. Lespérance and Mr. Trudel mimicked this approach, inviting Mr. Hoult to make further comments on other ads. He was shown examples of Export A  "A taste for adventure" campaigns that were run when he was president of the company. (Exhibits 1381.39, 1381.40, 1532.5).

Kayaking! Skiing! These were very different ads than the static smoker shown earlier in the week by Mr. Mitchell. (Mr. Hoult explained that the selection of documents was not made by him).

Nonetheless, Mr. Hoult saw them as sending "not an entirely different message ... The theme of the trucker was the great outdoors – this is exactly the same thing.... it's an enrichment of the message."  He did not agree with Mr. Lespérance that these ads promoted health. "They are promoting a vigorous, adventurous activity outdoors."

But what of the request made by the health minister in 1977 that the companies' take note of his "special concern about the association of cigarette smoking with any pursuit that requires a high degree of fitness," and the "inherent incompatibility between smoking and sports generally." (Exhibit 1558) Mr. Hoult said he was "totally unaware" of this request - even though he had earlier testified about extensive briefings about constraints on marketing in Canada.

Nonetheless, he did not share the minister's concerns. "I know many people who smoke and play soccer – and I did myself." Besides kayaking and skiing "are not sports in the conventional sense – they are more activities. I don’t think you necessarily require a high degree of fitness to indulge in these activities."  Nor did he think that skiing was risky:

When, much later, Mr. Trudel asked him whether or not the Macdonald Select ad did not associate smoking with romance, Mr. Hoult agreed that it did. But not in a way that offended CTMC rule number 8 that forbid promoting a brand as an "essential" element of romance.

Health information too

Although all of the advertisements shown had health warning messages, Mr. Hoult not once identified the information conveyed in the ads to include a caution about the consequences of using the product!

But he acknowledged that the ads did contain health-related information. "Both these packs are white. White communicates lightness - dark colours the opposite... At a more specific level, the name on the packs is in different colours: one is red, a milder, fuller flavour; blue is cooler and menthol is traditionally associated with green" 

"We knew from our research on many occasions that this association [between strength of cigarette and harmfulness] was there - that lighter cigarettes were better for you because they were lower in tar and nicotine."

Mr. Hoult said that he felt the company had no responsibility to further communicate the risks of smoking. These were "totally understood"  'It was perceived throughout Canada, among the general population, that cigarette smoking was a risk. even stronger than that – that cigarettes kill you."

Moreover, the government was "vigorously" communicating the dangers, and with its greater credibility the work was "being carried out more effectively than if we had done it ourselves."

Not concerned with communicating to youth

To this outsider, a curious idiosyncrasy of the trial process is the gauntlet that has to be run to establish something as a fact, even when it is something that would be considered authoritative in another source.

Mr. Hoult's presence -- and the fact that one of the documents introduced by the defendants made reference to Print Measurement Bureau figures -- was the device that Mr. Lespérance needed to put on record how many Quebec youngsters would have seen tobacco ads that were promoted in the satirical monthly, CROC. (Exhibit 1675, 1676-2M).

As he was taken through the calculations of the Prime Measurement Bureau, Mr. Hoult acknowledged that one-quarter of the readership of the magazine were youngsters aged 12-17, and that 1 in 5 Quebecers in that age range read the magazine.

This did not, however, concern him. "I certainly acknowledge that the magazines would reach these people... Now, whether the numbers are  large or small is not the issue of concern."

"When I say 'of no concern,' I have to say, without sounding irresponsible, that I don't believe that exposure to advertising to these people that you've talked about, these under eighteen-year-olds, is the factor in ...causing them to smoke." He cited other factors - like peer pressure and parental attitudes.

Covering up (ventilation holes)

From his answers, it would appear that Mr. Hoult had not been rehearsed to answer questions about the decision of RJR-Macdonald to put ventilation holes on its cigarettes so close to the end that they were potentially blocked by the lips of smokers. Given the large number of documents on the trial record about concerns with his company's brands, this seems like an odd oversight.

Even before Mr. Hoult began working at RJR-Macdonald, senior officials at Health Canada had written the CTMC to request that the companies take on the "manufacturer's responsibility to inform his customers" about the potential of lip blocking to make the tar and nicotine values on the package misleading. (Exhibit 50014)

Mr. Hoult said today that he was unaware of the request -- and suggested that the companies would not have acted on it unless there had been a series of meetings and discussions with the government first. It certainly was "not enough" for the government to merely ask.

In the mid 1980s, Imperial Tobacco had found that Export A Light cigarettes were the Canadian brand with the holes closest to the lips. (Exhibit 285). Mr. Hoult, who was not in Canada at that time, had no recollection of that complaint, and agreed that, if the facts were valid, the values on their packages of cigarettes would be rendered meaningless.

Perhaps he did not realize that he was being set up to comment on another old exhibit at this trial (Exhibit 626) in which the senior RJR-Macdonald scientist complained of resistance to the movement of the holes, or to changes to the measurement method that would overcome this design advantage . "I was unable to change the attitude of Senior Management, to a lengthening of the filter and moving the holes further away from the mouth end to prevent lip coverage of the first or even the first and second line of holes."  

An earlier memo pinned the decision on Mr. Hoult as a member of the reluctant senior managers. "PJH, yourself and myself decided to let this particular positioning of the holes continue... unless a major issue came of it (in which case we would plead lack of realisation of a problem)." (Exhibit 623).

Covering up (document tampering?)

Mr. Hoult had opened his testimony on Monday by clarifying that he had never intended to suggest that RJR-Macdonald had "purged" its records of references to young people.

In response to Mr. Lespérance's questions (and Exhbits 656 and 656 A which leave a very different impression), Mr. Hoult further clarified that there was no special effort to cleanse the records of references to young people. "I was talking about all documents, not just under age smokers. Purging as we defined it took place in all companies – simply getting rid of information ."

Documents, in this business, sometimes "speak for themselves." Ah, but how to interpret those that have been extinguished?

Balls in the air

A few hints were floated this week about the road ahead:
  • Mr. Lespérance reported yesterday that he anticipates two weeks' of trial in "counter-proof" and that he intends to call a small number of experts at that time. One who will be new to the trial is Professor Paul Slovic.
  • A motion to amend the pleadings is in the offing -- Imperial Tobacco seems to think it is more contentious than Justice Riordan seems to.
  • The "admissions" which Imperial Tobacco is seeking to avoid Simon Potter testifying have yet to be agreed to. This too may require more court time.
Next week the trial moves into one of its later chapter - the expert witnesses for the defence. Kip Viscusi will testify on Monday and Tuesday. In the last half of the week Ottawa psychiatrist, Dominique Bourget, will present her views on addiction.