Day 97: Are you more likely to die in a car accident than by smoking?

See note at the end of this post for information on accessing documents

It may have been the snowy wet weather. It may have been the Christmas shopping. For whatever reason, there was hardly anyone in the room for the last day of testimony of Philip Cadieux, a former market analyst with Imperial Tobacco.

Yesterday, plaintiff lawyer Philippe Trudel had tried in several ways to encourage Mr. Cadieux to share his knowledge of Imperial Tobacco's proprietary surveys of smoking behaviours (8M/Monthly Monitor) and smokers' attitudes (Continuous Market Assessment). With a few notable exceptions, Mr. Cadieux had maintained that he had nothing to share. I counted at least seventy occasions yesterday in which he responded to questions with "I don't know."

Today, the plaintiffs seem to have abandoned hope for any deep insights from this witness and seemed to have changed their approach. The pointed questions asked in firm tones yesterday - with arms crossed and focused staring at the witness - gave way today to a gentler style of voice and body language. Today's questions appeared as innocuous invitations for Mr. Cadieux to comment on what sounded like technical inquiries.

The witness seemed to relax a little, as did the whole courtroom atmosphere. Mr. Craig Lockwood, who is in charge of Imperial Tobacco's defense of this witness, is less prone to sharp-toned objections or disruptive interventions than his seat mate today, Ms. Glendinning.

Mr. Cadieux is the plaintiff's link to Imperial Tobacco's surveillance tools. The importance of these to the company was stressed earlier in the trial, when the company fought to have them placed "under seal" in this trial.

"As far as I am aware none of ITCan's competitors conduct or commission research that contains as much or as detailed information as is in the CMA." said Nancy Roberts in mid-May. "ITCAN uses historical CMA information to forecast the likely impact of changes in the marketing place and regulatory environment." 

(Justice Riordan was not persuaded by Imperial Tobacco's arguments, and the Court of Appeal upheld his decision to make the survey information available on the trial. The results are now on the record among Exhibits 987 and the microfiche is Exhibit 988. Whether an electronic record that would allow for easier analysis is still in existence remains in the air. Mr. Cadieux was asked to see whether one was maintained by his former employer. This voluntary action "would save a subpoena then, perhaps," said Justice Riordan).

Today, as yesterday, many of results from these ongoing surveys that were shown to the witness suggested a great interest on the part of the company in the views of smokers towards their products, social pressures on smoking, products that might be less harmful and the likelihood of disease from smoking.

"We knew that some smokers were less inclined to worry about trying to quit and had fewer intentions to quit and that some had more. We were aware there was a spectrum of smokers' beliefs in quitting and views on smoking and health," Mr. Cadieux said today.

He explained that ITL divided smokers into four categories -- highly dissonant, dissonant, consonant and highly consonant. The most dissonant smokers were those who had tried to quit in the last year and intended to try again in the next year. The consonant smokers were those who had neither tried nor intended to try in the same period.

Bob Bexon, the ghost witness in this trial, parsed this information carefully. In a handwritten memo he works through some possible underlying factors -- the difference between fear and fact, or between fear of disease or of death. (Exhibit 1254).

ITL's ongoing surveys also looked at other ways to measure smokers' perceptions of the harmfulness of its products. Smokers were asked whether “filter tipped cigarettes are better for your health than are non-filter tipped cigarettes", "What is the maximum amount of tar and nicotine that you feel is safe in a cigarette?" and whether they agreed that "It is more likely that a smoker will die in a car accident than through smoking". (Exhibit 987.15).

Mr. Trudel pointed to the result that half (48%) of smokers thought that a car accident was as likely a cause of death as smoking, and asked Mr. Cadieux if this was actually the case. "I don't know," was the familiar answer.

"Would it suggest that people don’t know the magnitude of the risks?" asked Mr. Cadieux. "I don't know," said Mr. Cadieux again -- but perhaps this time the question was a rhetorical one.

The cross-examination

By 11:30 the plaintiffs had finished their questions and Craig Lockwood's cross examination began by giving Mr. Cadieux a chance to restate his surprising revelation yesterday about the distinction between "awareness" and "belief."

"You made a distinction between awareness and belief.  If you were in your capacity as a pollster, would you pose the same questions if you were measuring awareness and belief?" asked Mr. Lockwood.
"I would post two different questions." said Mr. Cadieux.

Mr. Lockwood also invited Mr. Cadieux to confirm that he had never been involved in the marketing of products, to clarify his definition of starter as "someone who had started smoking in past 12 months and had no previous brand," and to express the focus of trendline on changes, not absolute levels. The other companies had no questions for this witness.

André Lespérance then followed up with a short set of questions about awareness vs. beliefs. Mr. Cadieux confirmed that he drew a distinction between awareness and beliefs, but that sometimes the question was in a grey zone between the two.

André Lespérance: "If you asked whether or not cigarettes caused disease – is that knowledge or belief?"
Philip Cadieux: "That depends on the question?"

"What if the question is 'Do you know ...' would that be awareness or belief?"
"That is subject to interpretation – 'Do you know?' -  it's kind of a grey area

Shortly after noon, Justice Riordan said farewell to Mr. Cadieux. "These are difficult questions – the lawyers have a difficult task. Thank you for being patient with them, and spending some time here. Happy holidays."

Holidays?

Indeed, the end-of-year break seemed to be on everyone's mind. During the breaks and even during the session, there were comments about pressures from family to spend more time at home.

There are only two items left on the week's schedule, and when André Lespérance raised the possibility that by tomorrow evening it would be possible to complete them both, Justice Riordan confirmed the collective desire to "break a day early" and not sit on Thursday.

And another holiday bonus - the court adjourned at lunch today.

A new high water mark for witness payment

Over the last two weeks, witness' compensation has emerged as a talking point in this trial. The discussion today has set a very high bar for any future discussions.

Shortly before the court adjourned, Mr. Lespérance gave verbal notice of a motion he may wish to present to help him resolve a dispute over a bill for witness compensation.

For less than 2 hours on March 6th this year, BAT lawyer, John Meltzer, was questioned on his knowledge of the document retention policy and the destruction of scientific and other documents by Imperial Tobacco. (The examination took place in England).

The court learned today that Mr. Meltzer's bill for the time in preparing for this hearing was $200,000.

It took a minute or two for Justice Riordan to absorb what André Lespérance was telling him. Deux ...  cent .... milles ... dollars?!, he asked, stressing each word.

Mr. Lespérance said he didn't want to get into a fight over the bill, but was looking for a way to bring it more in line to the Canadian standard. In Quebec, he said, a witness receives under $100 and a bus ticket.

Exhibits used during the examination of Mr. Cadieux

• 987.15  1977 Segmentation of French and English Speaking Cigarette Market
• 987.21A-2m: Project Viking Wave 3 (hard data) - December 1991
• 987.35A-2m: 8M study - Cigarette Smoking and Health - Spring 1973 - Excerpts
• 1246 2m  Training Program in Marketing Research - Part 2 - June 16, 1994 
• 1247 Notes by Mr. Cadieux, for a presentation made to a group of new employees - November 1981
• 1248 2m PROJECT BRAND I.D. - July 1981
• 1249 2m Canadian Facts study regarding health consciousness - July 1964
• 1250  Canadian Smoking Habits - Fall 1985 
• 1251 Handwritten document: Quitting - 8M 1979 
• 1252 Tobacco product users report, update 1981, (2X) and tables - Marketing Research Dept. - July 1982 
• 1253  Data with respect to Smoking and Health from 1982 CMA, dated March 16, 1982
• 1254. Bob Bexon Memo: Health Concerns are a Real Issue
• 1255. Project Spur

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: https://tobacco.asp.visard.ca

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

Day 96: Canadian Facts, maybe, but not much insight

There was an end-of-term feeling when the Montreal tobacco trial resumed this Monday for its last few days before the Christmas break. Let's get this work done and over with!

Compared to the hurly-burly of last week's appearance by Jeffrey Wigand, the mood of the room seemed particularly sedate. The benches on both side of the bar were thin. In addition to the 'Insurance' lawyer who takes steady notes when witnesses from Imperial Tobacco or Rothmans, Benson and Hedges are present, the only other visitors in the public area were the plaintiffs' expert witness, Christian Bourque, and his colleague.

Mr. Philip Cadieux, who testified today, was the fourth witness to have once worked for Imperial Tobacco's marketing department. (On his LinkedIn profile, he list the company as BAT Canada which is now more accurate and less likely to lead to confusion with Imperial Tobacco UK.).

The previous marketing department witnesses to have testified live have been Tony Kalhok, Ed Ricard, and Jacques Woods. Others, like Bob Bexon, have provided posthumous contributions.

The seven years Mr. Cadieux spent within the company working as a research analyst, market forecaster and survey manager (from 1982 to 1989) are only part of his history with the company. He left Imperial to work with its market survey firm, Canadian Facts (now known as TNS Canada/TNS Global).  From his various roles in that company, rising to vice-president of client surveys, he continued to work on Imperial Tobacco Accounts.

The go-to guy for tobacco
and the diseases it causes

(TNS must be a company with a good sense of irony. In addition to the tobacco file, Mr. Cadieux also worked on the marketing of medical services to treat tobacco caused disease, like cancer, and heart disease, and helped link people with ailments to companies selling cures.)

However he has spent the three decades since joining Imperial Tobacco, it looks good on him. At 56, Mr. Cadieux is one of the younger witnesses, as Philippe Trudel remarked before beginning his questions of this witness. With his thick black hair, trim figure, good posture and unlined face, he is by far  one of the youngest looking.

Nor does Mr. Cadieux suffer from the same type of memory lapse that has beset some of the older witnesses. With this witness there is not the feeling that he is pretending not to remember things. From his testimony, it would appear that he never knew much to begin with.

Mr. Trudel: When you worked at Imperial, did you know the company position with respect to smoking and health?
Mr. Cadieux: No I didn't

Mr. Trudel: You don’t remember?
Mr. Cadieux: I don’t think I ever knew.

Nor did he ever know:  why the company collected information on which sponsored events appealed to different age groups; what use was made of information that showed fewer smokers were using "milder cigarettes as a means of addressing their concern on smoking and health"; why the company began measuring health concerns about carbon monoxide; why certain questions on health issues were included on the surveys whose results he analyzed; why the company probed smokers to find out how old they were when they tried smoking and when they became regular smokers.

I think it was Mr. Cadieux's lack of insight that was the most striking impact of this witness. For a man who worked in the polling business for several decades, he seemed to have no capacity to provide any interpretation of survey research findings.

Mr. Cadieux was asked to reveal his hourly rate for working (a new practice in this trial, initiated by Imperial Tobacco over the past couple of weeks). It is hard to understand how someone who can command such a high consultation fee can be so uninformative when looking at survey results in market in which he has decades of experience.

In other respects, Mr. Cadieux gave the appearance of being an intelligent man. With only 8 hours of pre-trial preparation by Imperial Tobacco lawyers (he had not been inclined to accept the invitation to meet with the plaintiff's lawyers), he had grasped many key elements of this trial  - like the fact that the cigars and pipes were not part of the trial, and that he expected that lawyers would "refresh my memory".  At several moments in today's testimony, Justice Riordan let slip a smile as the witness said things that you might not expect someone off the street to know instinctively.

Not the end of the (Mayan) world, but not great for BAT Canada's case either.

One of the most memorable statements of the day came mid morning, when Mr. Cadieux was being asked about the "variable question block" (VQB) that was included into Imperial Tobacco's regular CMA survey. The survey questions asked smokers, for example, how dangerous they thought smoking was.

Mr. Cadieux had said that all of this information was used purely for forecasting reasons (and not for marketing or other purposes). Mr. Trudel wanted to know why smokers' knowledge was important to those forecasts, and suggested that it might be because such knowledge was a percursor to quitting.

"So the more knowledge of risks, the higher the quitting rate?" asked the lawyer.
The witness sought clarification - "The more knowledge of the risks?" Or the more people believed that smoking was risky?"

Mr. Trudel casually followed up by asking "you make a distinction between knowledge and belief?"
"Yes," said Mr. Cadieux. "There is a difference between awareness and belief. I am aware that people think that smoking is not healthy - and the belief is different."

"Can you explain that to the court?"
"Yes. I am aware that the Mayan calendar predicted the end of the world this month, but I don't believe it. I think that carries through to smoking - the difference between awareness and beliefs."

If one of the pillars of Imperial Tobacco's case is that there was broad public awareness of the harms of smoking, this distinction presented by one of its 'friendly' insiders can not be very helpful.

(Mr. Cadieux answer undermines an answer given during the cross examination of Anthony Kalhok, former VP of marketing. On April 18, ITL's lawyer, Craig Lockwood, asked a seemingly soft-ball question about whether he thought there was a  "distinction between the public awareness of an issue versus the public belief in that issue?" Mr. Kalhok replied: "No, I do not. Because, in reality, I think it's one and the same."

More marketing data on the record

From about 10:30 until the end of the day, Mr. Trudel presented Mr. Cadieux with a series of marketing documents, asking questions on sections of them and entering them as Exhibits in the trial. These documents are not yet available, but hopefully will be by tomorrow.

At the end of the day, Mr. Trudel indicated that he expected that tomorrow would be the last day on which Mr. Cadieux would be required by the plaintiffs.

The Court of Appeal on Litigation Privilege - Not yes. Not yet. 

A week ago today, the Court of Appeal had listened to arguments regarding the "Four Seasons Project"  report commissioned by the Canadian tobacco companies in the mid 1980s to help them protect themselves from litigation efforts such as the one underway in this Montreal court.

In 1988, the companies hired historian David Flaherty to measure and document awareness of health issues related to smoking and in 1989, he was again hired to use such information to help fight Canada's first ever (but ultimately unsuccessful) lawsuit against tobacco companies. David Flaherty has prepared an updated version of the paper as an expert report for this trial, but the defendant tobacco companies had tried to keep his early effort away by arguing that it was subject to solicitor client privilege.

On May 17, Justice Riordan had ruled against them, and it took 7 months for the Court of Appeal to consider the objections to that ruling. It took four working days for the Court to release a 16 page ruling which adds to the pile of recent judgements by that court against the companies.

I hesitate to interpret the pattern, but the court seems to make increasingly clear that they will not interfere mid-trial, and that complaints such as these must wait until the trial is over before they can be addressed. (The Court of Appeal ruling can be found here.)

Tomorrow, Mr. Philip (Phil) Cadieux continues his testimony. The last witness this week will be Mr. Hirtle, who is expected to testify Wednesday. The time remaining this week will bge used to enter exhibits onto the court record. (Corrected)