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: 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 39 - Veteran of the tobacco wars

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

On his second day of testimony at the Montreal tobacco trials, William Henry Neville continued his reminiscence of being the chief lobbyist for Canada's main tobacco companies.

The skills that had kept Mr. Neville at the top of a competitive field of professional persuaders were evident throughout the day. Even the most seasoned lawyers (and judge) were not immune to his charms. (At the end of the day, Justice Riordan remarked that Joe Clark had been a lucky man to have had Mr. Neville as a principal secretary!)

There is likely no environment more starkly adversarial than a courtroom where parties square off with reputation and big money at stake. Standing in front of the judge, Mr. Neville was in the centre of such a room, and yet seemed to find a way of simultaneously pleasing all sides.

It's impossible to know what was really going on in the heads on those black-gowned shoulders, but from the back of the room it seemed a layer of tension had been removed. The questions flowed more quickly, objections and interventions were voiced in more moderate tones, and little jokes were shared across the aisle.

Was this the magical effect of a professional wheel-greaser - to make everyone feel good?

The old war horse

Mr. Neville was questioned about his work during the decade following 1985 - a period of fierce activity in the development of Canadian public policy on tobacco control and equally fierce counter-activity by the industry. In this Canadian tobacco war Bill Neville was a field marshal for an allied tobacco industry. It was his job to design the strategy, call for troops and direct the field engagement.

Today he looked and sounded like a veteran of a long-ago battle who had never adjusted to being demobilized. It wasn't just his physical frailty and raspy voice that made him sound like an ageing soldier. His perspectives remain rooted at the time of battle - like the legionnaire who still won't buy a Japanese car or drink German beer.

On other witnesses, these anachronisms have not washed, but Bill Neville could carry it off.

When asked by Bruce Johnston, for example, to confirm that the CTMC hired scientific researchers to produce studies supporting pre-determined conclusions (on addiction and advertising impact), Mr. Neville acknowledged this was the case and alluded to the norms of those he still labels as opponents. I am sure that Mr. Mahood, if he is still sitting back there, would do the same. Instead of reflecting on the use or abuse of 'advocacy research', as Mr. Neville put it, the room laughed.

Mr. Neville had cited a WHO study which looked at smoking patterns among young people in four countries and found that those where advertising ban were in effect did not smoke at lower rates than those were they were. Although the the scientists had addressed the need to look at the changing patterns over time in countries where ad bans were put in place and not just compare across boundaries, Mr. Neville chose to ignore that fact.

Even today, when presented with evidence that the scientists had refuted his interpretation of their findings, Mr. Neville declined the opportunity to change his view. He scoffed  that the scientists had probably been pressured and that their rebuttal to the industry view was "a run-for-cover explanation in my humble position." Instead of taking the time to explore Mr. Neville's refusal to acknowledge the difference between measuring differences across time and differences across borders, the issue was dropped.

Time has not softened his views towards those 'extremists' in Health Canada who promoted policy change nor diminished his a high regard for those who stalled policy reforms. Mr. Neville today said of Health Canada ADM Bert Liston, who resisted warning Canadians of the addictive nature of tobacco even though a scientific consensus had been well established, He represented the government of Canada with skill and reasonableness.  He was prepared to negotiate common sense solutions.

If the world has moved on to a time when clean-air laws, bans on tobacco advertising and health warnings are no longer considered controversial, Mr. Neville has not moved with it.

The memorabilia

A number of documents that were presented today are not yet available, as they are in the process of being redacted or are the subject of a hearing on Monday (June 11) regarding parliamentary privilege.  Among those that were made public are several that provide new light on how the tobacco industry fought back in the 80s, including:

Exhibit 440:  The CTMC receives a low-down on the Ontario government strategy, and an explanation of why they were backing down with their proposed law.

Exhibit 441:  Bill Neville devises a strategy to try to take away the charitable status of the Non-Smokers Rights Association (last paragraph).

Exhibit 445:  The CTMC helps mobilize votes at the Ontario Pharmacists Association against those who supported bans on tobacco sales in pharmacies.

Exhibit 446:  The CTMC struggles with member companies who were, as Bill Neville said today "too cute" in subverting regulations.

Exhibit 449:  Speaking notes used to try to discourage support from C-51.

Exhibit 462:  Exploring the use of youth smoking prevention  programs as a way of improving the image of the companies.

The plaintiff's finished their questions for Mr. Neville by mid afternoon.  Each of the industry lawyers had a small number of questions which invited him to say polite but disparaging things about public servants who promoted tobacco control (former Surgeon General Koop was singled out as being motivated through religious views and not public health).  Even though the bulk of the two-day testimony had been focused on the industry's relationship with the government of Canada, lawyers representing the government asked no questions.

As usual, the court will not sit on Fridays.  On Monday, a hearing will be held on a number of documents for which the industry has claimed parliamentary privilege. The scheduling of witnesses has taken an almost comic air of confusion, but next week I believe that another CTMC employee, Jacques Larivière, will testify.

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 38 - The hired gun

There are few Conservative backroom powerbrokers with Mr. Neville's experience, political acumen and popularity... a Tory with Liberal roots, an experienced political strategist with the trust of the party, a man much loved by his friends and colleagues.

Stevie Cameron,
Globe and Mail, March 12, 1987 

Bill Neville was one of the first professional lobbyists in Canada, and for many years was viewed as one of the most successful among them.

Today he was the twelfth witness to be sworn in at the Montreal trial against the three big tobacco companies operating in Canada. He was called to speak of his time as consultant to and president of the Canadian Tobacco Manufacturers' Council, from 1985 to 1997.

In a dark suit that did not conceal his stooping shoulders and a bright green tie and matching handkerchief, the 76-year-old Bill Neville now looks more like a member of a seniors' bridge club than a powerbroker. But the charm and intelligence that had kept him on the 'call list' of important people was still in evidence. His answers to the questions put by plaintiff lawyer, Bruce Johnston, were direct, seemingly candid and often amusing. The atmosphere in the courtroom during his testimony was atypically relaxed and attentive.

The CTMC and the federal role

The close relationship
between Bill Neville and
Brian Mulroney was
seen as a threat to the
passage of bill C-51

Bill Neville brought his strategic talents to the tobacco companies when they very much needed help - during the period leading up to the adoption in 1988 of the first Canadian laws on  tobacco marketing and labelling and smoking in federally-regulated places. As distant as those events now seem, they are a key period in the timeframe of this lawsuit.

Each of the companies involved in this suit has taken the position that  federal government should bear some or all of any liability because of the role it played in setting policy. Imperial Tobacco witnesses have also said that an agreement with Health Canada prohibited them from warning their clients about the health effects of cigarettes.

Today's evidence undermines the suggestion that the federal government was in charge or that the tobacco companies were in any way obeisant. It shows the lengths to which the industry was willing to go to avoid, delay and alter directives from government and their ability to influence those directions.

And as for an agreement with Health Canada to not permit warnings? In answer to Bruce Johnston's direct question as to whether there was any restriction or impediment in the capacity of your clients to communicate to consumers? Mr. Neville replied Not in law that I was aware of.

A sincere representative

As president of the CTMC, Mr. Neville reported to the heads of the three major tobacco companies that are currently on trial (Imperial Tobacco/BAT, Rothmans, Benson & Hedges/PMI and JTI-Macdonald) and his work involved more than just lobbying government officials: he was working to influence unions and others on second hand smoke issues, develop research strategies, improve the social acceptability of smoking. (Exhibit 421).

Although he described himself as a 'hired gun' to the industry, Mr. Neville made it clear that he was no hypocrite and said the position of the industry "coincided with my views". Reflecting on that period today, he still uses the word "extremist" to describe policies like C-51 (the Tobacco Products Control Act). He had no kind words today for U.S. Surgeon General C. Everett Koop, who had championed tobacco control. He used the term "zealot" to describe Gar Mahood, whose organization the Non Smokers' Rights Association lead the public campaign for tobacco laws in the 1980s.

(Gar Mahood, who was in the audience listening to Mr. Neville's testimony, could afford to smile at this  description, knowing that history and the 175 countries that have signed up to the same 'extemist' rules in the Framework Convention on Tobacco Control are on his side).

Even after all these years, Mr. Neville has no fondness even for basic tobacco control measure like health warnings. I have worked for beer and liquor industries. People know that if you drink too much you can have a traffic accident. But you don’t pick up a bottle of gin and read “don’t drink too much or you will have an accident”  Why should the tobacco industry have such rules?  

Ten Lessons from Mr. Neville

The documents introduced by Bruce Johnston and shown to Mr. Neville today may serve as a lesson plan for industry campaigns against government regulation.

Have a plan
In November 1986, Mr. Neville developed a detailed strategy with the goal "to avoid... the introduction of legislation on smoking and health." Part of that plan was to lessen the influence of the minister's officials, to build caucus pressure, and to make known economic threats. (Exhibit 429) The CTMC was structured to allow expansive activities governed by its members (Exhibit 421).

Work with a fifth column
During the period that Mr. Neville worked for the CTMC, the Assistant Deputy Minister within the department who was responsible for tobacco regulation was Dr. Bert Liston.  Dr. Liston's position against labelling tobacco an addiction was contrary to the scientific opinion of the Surgeon General and the Royal Society who had been commissioned by Health Canada to study the issue, but it conveniently aligned with the views of the tobacco companies. (Exhibit 430)  Mr. Neville confirmed today that Dr. Liston worked as a consultant for the tobacco companies after his retirement from Health Canada.

Spread the word
Not everyone would put making a speech to the Administrative Management Society Dinner at the top of their to do list -- especially if it involved travelling to Kitchener in November. Bill Neville's speech there in 1987 (Exhibit 420 A) shows his skill at positioning the industry's 'reasonable' position against the government's 'extremism' as well as his willingness to eat rubber-chicken dinners for the cause.

Mobilize the payroll
Verner Knott, a scientist working at the Royal Ottawa Hospital, was a long-time recipient of financing from the CTMC to research the benefits of smoking. Mr. Neville's had the task of making sure Dr. Knott's views -- once edited by tobacco industry lawyers - were made known to parliamentarians. (Exhibit 422)

Mobilize the friendlies
The trial has already heard about the Smokers' Freedom Society, and its efforts to present mokers' views as being aligned with those of the company. Mr. Neville confirmed today that Michel Bédard had been recruited for the position mobilize smokers, and his 1988 memo on the organization shows his efforts to have funds for the society increased, and their activities expanded. (Exhibit 423)

Other front groups were also developed. Mr. Neville testified today that retailers (Exhibit 432) were an important constituency for the companies. These people, in political terms, had the advantage of being small business operations. They were in sometimes in certain parts of an ethnic concentration that has political benefits. They are a potentially useful constituency if they could be mobilized.

In an attempt to maintain sponsorship promotions, the CTMC recruited sponsored agencies to join "Coalition 51". The rationale behind the formation of the Coalition was that third parties could address the fundamental flaws of the Bill in a more credible fashion than the industry or industry family, and with the credibility increasing proportionally with the distancing of the industry. (Exhibit 332). To get around the fact that the artists involved are under pressure for siding with the industry, a PR (Burson-Marsteller) is hired as intermediary.

Have deep pockets.
While the operating budget of the CTMC during Mr. Neville's tenure was not revealed today, the bills for individual activities were very impressive.  Coalition 51 spent $197,000 in only one month, and about $5,000 for each member of Coalition 51. (Exhibit 332)  An adaptation of a UK study to dispute the impact of ad bans on children cost the CTMC $90,000 (Exhibit 420 B). The Smokers Freedom Society received up to $1 million a year, Mr. Neville testified today.

Learn from the Big Boys
Mr. Neville made annual trips to the U.S. to confer with the U.S. Tobacco Institute. On his return from a trip in the spring of 1988, he plans to mobilize trade unions, to coordinate scientific attacks on second hand smoke research through U.S. law offices, conduct a seminar on second hand smoke in Canada, and to use human rights legislation to block bans on smoking in offices. (Exhibit 424)

Know where your support lies
Mr. Neville received a list from Imperial Tobacco's public relations officer, Michel Descoteaux, on Conservative backbenchers likely to oppose Bill C-51. (Exhibit 425) Reading this list 25 years later in the courtroom, he laughed When I read that list I wondered how C-51 ever got passed.  I guess that's another subject for another day. 

Don't leave anything to chance
Preparing for meetings with Health and Welfare Canada, the industry worked through Mr. Neville to propose font types and font sizes for health warnings that were less "intensive" and  not "intrusive". (Exhibit 427).

Was maximizing the impact of the health warnings not a consideration of the companies? asked Bruce Johnston.
MAXIMIZING their impact!? No. said the witness.

Keep your fingers on the pulse
The CTMC conducted public opinion polls that explored attitudes towards specific tobacco regulations and political party support. (Exhibit 431).

A lost history?

The documents from the CTMC introduced to date provide clarity and detail on the industry's activities to alter public policy and public attitudes - but it's not clear whether the whole story will ever be told.  Bruce Johnston asked Mr. Neville whether the CTMC was still in operations. There is no one in my position. It may exist legally but there is no office, he said. And as to what happened to the documents? I don’t know.

Franchement!

Just before Victoria Day weekend, a hearing was held on the question of whether some specific Imperial Tobacco documents should be kept confidential. So important was it to Imperial Tobacco to keep these documents secret that it pushed for an in camera hearing.

Yesterday, Justice Riordan gave his decision on the matter, and determined that most of the documents did not qualify for confidential status (although it is possible that information in one of the records may not be made fully public.)  Imperial Tobacco signalled that it would be asking to appeal this ruling, and requested the documents not be made available to the public until it is known whether an appeal would be granted.

At least to these untutored eyes, there are not many court rulings that you can pick up and expect to laugh. Justice Riordan's rulings, however, are fun to read. The single word paragraph 43 in this ruling -  "Franchement" - is hopefully well understood even by Toronto-based Nancy Roberts, who argued that her client's plans to subvert the effect of plain packaging should be sealed.

For goodness sake, indeed.

Mr. Neville's testimony continues tomorrow.