John Broen's second day of testimony at the trial of the Montreal tobacco class action lawsuits was even more acrimonious and frustrating than yesterday's.
This man is a former vice president of corporate affairs, former vice-president of marketing and former president of tobacco companies operating in Canada. He worked as a senior executive in the tobacco business for a quarter century, and would have seen 10 federal health ministers come and go, and 4 federal laws enacted.
That is to say, this is a man who should know a lot about smokers, about cigarettes, about tobacco companies, and about public events involving tobacco use. Virtually no such knowledge was exposed to the court today.
Plaintiff lawyer Bruce Johnston struggled throughout the day to maintain any rhythm or coherence in the process of putting documents and testimony on the record. Working against him (in addition to his own ability to put simple questions in complex language) were defense counsel Simon Potter's considerable skills at tripping his opponents as well as the witness' overt hostility to the proceedings. It didn't help matters that Justice Riordan has made it clear that he is no fan of Bruce Johnston's style and today made few efforts to arbitrate the rough courtroom play.
Simon Potter has tried to create the expectation that witness testimony for all former employees Rothmans, Benson and Hedges will be time-limited, and that the schedule has some binding effect. To borrow his own vernacular, Mr. Potter "lards it on" whenever there is a delay in proceedings that might affect the scheduling of his witnesses. This has not been the position of the other companies' lawyers, whose witnesses have frequently returned for additional days of testimony.
Ragging the puck
With a witness like Mr. Broen, who has seen so much and who may not have the smarts to keep his story straight, the best strategy may well be to try to limit his exposure and to slow proceedings. There appears to be no penalty for delay of play in this arena.
Certainly Mr. Broen acted as if his job was to fill two days with talk before leaving tonight for a vacation in Florida. And fill it with talk, he did. Variations on the following pattern appeared several times over the past two days.
Lawyer asks question
Witness loses his place on the document. Asks for question to be asked again
Lawyer repeats question
Witness gives an answer to a different question.
Lawyer repeats question
Opposing lawyer objects to question
Judge overrules objection. Asks for question to be repeated
Lawyer repeats question
Witness goes to another place in the document and asks for time
Witness objects to wording in question or document
Lawyer repeats question
Witness provides vague or ambiguous answer.
You can't live in your own world in a courtroom
Mr. Broen's hostility towards the questions that were politely put to him seemed very genuine. He looked to me like he was threatened by and crumbling under the counter-narrative to his own belief system that Bruce Johnston was presenting. The tone of his testimony frequently swung from boastful, to defiant, to angry.
RBH "did not research youth", but received research on youth
There was pride in his voice when Mr. Broen said that his company did not market to or research smoking behaviour in those under the 'legal age to smoke'. Yet he did not know what the legal age to smoke was. Inconvenient to this assertion were documents showing that his company regularly purchased survey data on brand preferences of smokers as young as 15. Mr. Broen explained there was "no option" but to piggy back research on surveys that included such age groups, nor could restrictions be put on the data presentation. He offered no reason why the company did not choose other modes of research. (Exhibits 763-0179 763-0677 763-0678 763-1277)
RBH "did not like contraband", but sold to contraband traders
There was pride in Mr. Broen's voice when he said that his company disliked the contraband trade and forwarded to Ottawa suggestions on how to end it. RBH only sent cigarettes to legal, licensed U.S. distributors, he said. To make it easier to identify contraband product, his company used the smaller U.S. health warnings on cigarettes they shipped to the U.S.A. Inconvenient to these assertions were his admissions that the company knew their cigarettes were being round-tripped back to Canada, and documents that revealed the company wanted to protect its customers from the new Canadian health warnings.
RBH "did not market to youth", yet their marketing appealed to youth
There was pride in Mr. Broen's voice when he spoke of the companies' shared commitments to not market to youth. (Exhibit 764), Inconvenient to this position was his own admission that it was impossible to design a marketing campaign that would appeal to 18 year olds without it also likely being appealing to those under 18. Inconvenient too were documents showing their pleasure that new smaller packages were appealing to younger smokers, (Exhibit 765) and ads that were placed in Junior Hockey (Exhibit 771 - not yet available)
RBH "did what the government wanted", yet undermined government efforts
There was defiance in Mr. Broen's voice when he spoke yesterday of his department's attentiveness to the demands of the government. "We went along with the Government. We agreed with the Government. We had an agreement. We would do the things that they asked us to do. I mean, how much more were we expected to do?" Inconvenient to this understanding of reality were his memos tabled today which detailed efforts to avoid legislation and to hide some marketing agreements from government. (Exhibit 769, 770C)
Engineers at the helm of a foreign fleet
Several times Mr. Broen referred to his training as a civil engineer, and mentioned that another RBH President, Joe Heffernan, was also an engineer by training. (From his testimony, it would appear that engineers require 100% frequency of consequential events before they accept that one event can cause another. Who knew!?)
As was the case with RJR/JTI-Macdonald, there were many suggestions that the Canadian managers of these foreign-owned companies received instructions on how to engage in Canadian public affairs. As late as 1993, Rothmans was giving direction to employees on public issues management, maintaining that "It has not been scientifically proven that smoking causes disease" (Exhibit 768). Speaking points on other sensitive issues were provided by U.S. parents (Exhibit 776, 777).
In 1990, Philip Morris International brought a bevy of public relations experts to figure out "future directions" (Exhibit 773) Despite John Broen's derided the exercise, saying his U.S. boss "didn't know his you-know-what from his elbow" - nonetheless, this object of scorn had the power to call the meeting).
More home-grown options on how to turn things around in Canada were proposed by Allan Greg's Strategic Counsel. (Exhibit 775)
And more to look forward to...
About an hour before the scheduled adjournment, Bruce Johnston informed the court that he would require Mr. Broen to testify for an additional day. Given the scenic-route the answers had taken for two days, this could not have been a surprise to anyone in the room. Nonetheless it prompted the witness to deepen his already frequent angry sighs. Mr. Potter expressed outrage and informed the court that Mr. Broen was not scheduled to return from Florida until mid-December. It will be a few weeks before he testifies again
It was a hard day. Justice Riordan's comment when adjourning the court a little early may have been an understatement. “I think we’ve all had enough for today."
Tomorrow, Mr. Norm Cohen, a former scientist with Rothmans, Benson and Hedges is scheduled to testify.
