Day 78: Thirteen Riveting Minutes

See note on accessing documents at the end of this post.

Mr. John Broen returned to the stand today for his last half-day of testimony at the Montreal trial of the Quebec tobacco class action suits. During his first appearance on October 15 and 16 he had distinguished himself as one of the worst witnesses to-date - he was argumentative, defiant and evasive. So it was a surprise that he closed his testimony at noon today with some of the most damning - and telling - insights into the Canadian cigarette business.

It came after Bruce Johnston had finished his questions for the plaintiffs and Simon Potter had finished his cross examination. (More on this part of the morning follows below). It was only a few minutes after noon when Justice Riordan began a 13 minute exchange with the witness.

The same John Broen who had struggled to find ways to avoid answering Mr. Johnston's questions was suddenly opening up to the judge. The change in his body language and speech patterns gave a credibility that had been lacking in his earlier statements to the court.

In recent weeks, Justice Riordan has more frequently put questions directly to the witnesses, but has usually only done so to restate a question that has been misunderstood or is being avoided. By contrast, his questions today were original and pointed. This is Justice Riordan's second substantive engagement with witnesses in three court days --  lawyers on both sides hung on every word.

The stakes in this case are big, and the outcome depends at this stage on Justice Riordan's analysis. No wonder he is the object of scrutiny and curiosity. For those unable to observe him first hand, I have tried unsuccessfully to find an official court photo. Failing that, I have found one from a different kind of court -- a photo from the McGill basketball team alumni page. Justice Riordan is not always given a reason to smile so broadly during this trial!

The transcript of today's exchange, when it is available tomorrow, will show that his questions to Mr. Broen cut to the heart of the cigarette enterprise, if not to this case. Until then, my rough notes may suffice:

Justice Brian Riordan (BR): In the companies where you worked were cigarettes considered to be a cause of lung cancer?

Mr. John Broen (JB): (Long pause). That is not actually one I want to answer yes or no to. In the early days there was scepticism. I have always said it may cause. In the early days in the industry there was a general feeling that way that it was not absolutely a proven link. I say early days because I have been questioned back to 1957 while I was here.

BR: In your personal experience?

JB: In the early days, yes I think so. I don’t think it was published like it is today and has it has been. Generally it  was agreed to by different companies in a different way. "Cause" has taken a different meaning over the years. There was an acknowledgement that it was risky and an acknowledgement that it could cause cancer.

BR: I have heard a number of times "cigarettes can be a cause of lung cancer in some people." Does that reflect anything you ever heard while working in the industry?

JB: Perhaps not worded exactly like that.

BR: What wording would you use?

JB: Well, maybe I was using semantics. Generally it was acknowledged in my years in the industry 

BR: When you got together with your other chief executives, surely you must have spoken about the health risks of smoking?

JB: Not really. That was an individual company thing for individual companies to take a position on.

BR: Did you have a management committee in your company?

JB: Yes

BR: In those meetings would you discuss the health effects?

JB: Not specifically, because we were all of one mind that it was a risky proposition and some people are going to have problems, problems of the heart, problems of the lungs. Smoking has been attached to an awful lot of diseases all the way from colon cancer to what not. We didn’t specifically go through a discussion on that topic. 

BR: When you were recruiting people for high level jobs, was it ever an issue?

JB: I don’t recall that. I believe people were asked if they had a problem with smoking. 

BR: Did candidates ask you about the companies' position on smoking and health?

JB: I don’t know. I personally didn’t interview anybody after about 1970. I just don't recall whether it was asked. I assume it was.

BR: Was there ever a discussion within your company on how to respond to the question I just asked you – is smoking a cause of cancer ?

JB: Not really. This is an area where I was asked earlier whether I received direction. I don’t want to use 'direction" in this particular instance as in 'direction from our principal shareholders.' But we watched closely what the position of our principal shareholders was. As a general statement we tended to follow what they said as they took a position on international companies as to what their position was on smoking and the potential health effects. 

BR: So they didn’t tell you want you say but you made sure you didn't contradict them – is that fair?
JB: They never said "thou shalt not." But we kept abreast because we wanted to not do anything that was contrary or different to what they were doing. 

BR: You did more than that. You kept abreast and you made sure you conformed.

JB: There was a lead we took by following what they were saying. We were never actually told.

BR: You were president of one of the companies for a while. Did you ever give direction to the VP of corporate affairs or to people working for you to say "follow what the parent companies say?”

JB: The only person who was a spokesperson for the company was someone who reported to me – John Macdonald – he was the company spokesperson. He was the one who really kept track very carefully what was being said on this issue and this subject. Not only by our parents but what was being said by our parent companies around the world. That was part of his mandate. He know what was being said and he knew he was never ordered about what to say but he knew it was not correct to veer off the path that the other companies were saying. We were a very small company so we weren’t able to go and verify this sort of thing. As a little company we took the lead by keeping track of what was being said. 

BR: You took lead from the parent companies and complied with it?

JB: Yes.

BR: Mr. Macdonald implicitly knew this was his directions or did you specifically indicate that he should follow their lead?

JB: I never explicitly said don’t go beyond what was being said anywhere else. He just knew that this is what he should be staying with – also a position that other companies took on this issues

BR: Did he have role in the CTMC?

JB: He was involved in the public affairs committee. He attended some of those meetings, not all. 

BR: Did he ever mention that it was discussed

JB: Not that I recall.

Earlier in the day

During the earlier part of the morning, Mr. Johnston introduced only a few new documents to the trial. He presented an interesting business analysis from the early 1990s, which described BMV cigarettes. (Exhibit 911). Mr. Broen explained that BMV - Below Market Value cigarettes were usually considered to be smuggled products, or those made from home-grown tobacco. As early as September 1993 - before the election and change in government - RBH was anticipating that cigarette taxes would be rolled back.  Contraband continued to be used as a way to discourage governments from passing tobacco control laws, as in Quebec in 1998. (Exhibit 912)

When RBH placed a billboard for Craven A cigarettes near an Ottawa high school, a response was prepared that was wholly unapologetic and defended the promotion of such sponsorships. (Exhibit 913) Today Mr. Broen was asked whether part of the purpose of such ads was to "raise awareness of the brand." "Yes" he admitted.

Insight into John Broen's work as a marketer can be taken from a memo he wrote in preparation for the change in smoking methods in 1985. (Exhibit 914) In addition to a trenchant political analysis and competitive review, he comments that the change will not "serve to solve our Company's problem of the lack of King Size starter smokers."

Mr. Broen was asked about John Luik, who had written to the Globe and Mail saying he was "neither an employee of the industry nor some hired intellectual hitman, charged by the industry with creating arguments in favour of their position." (Exhibit 915) Given the contrary view of Mr. Luik in some circles, Mr. Johnston asked whether this was a "true statement." "I believe so," said Mr. Broen, but under further questioning he qualified that Mr. Luik was not a hitman for the 'industry' but that he was rather engaged by Rothmans.

Another question on which he dissembled was why the company opposed smoking bans. At first he denied that there was opposition: "We didn’t oppose bans that were as specific to restaurants and so on but we just tried to put forward our position that it wasn’t necessary. That changed over time." 

As for the Smokers Freedom Society, he explained "there was a tidal wave of criticism of smoking in public  places and so on and it was better to have someone that didn’t exactly go along with the views of those criticizing the industry. No one was speaking for our side."

The Cross Examination

Only Mr. Potter chose to cross-examine Mr. Broen, and this time he did not focus his questions on the role of the federal government but instead gave a series of soft-ball questions. ("An area where emotions ran high - is this how you saw discussion of tobacco issues?" - "how much did your [foreign owners] get involved in your company"). He tried to weaken the impact of Mr. Broen's stated concern about promotions in Junior Hockey by implying (without showing) that there were ads for cars and whisky in the same magazine.

Later that day

When the court reconvened in the afternoon, the benches had been cleared of senior members of the legal team and the legal gowns had been put aside. With no witnesses to be heard, the business of the day was set to return to the filing of "orphan documents" into the court record, but not before there was a renewed discussion of the acceptability of Legacy documents in this trial.

Mr. Potter has apparently made good on his promise to file a motion to prevent the testimony of Kim Klausner from the Legacy Library which is scheduled for November 12 and 13. (Such motions are part of the public court record, but are not readily available, so consider my report as hearsay!)

I think the question was left still rather open. Mr. André Lespérance explained the categories of documents that they wished to file, and Justice Riordan probed alternative ways to consider or use these documents. It's all a little fuzzy to me where the issue currently stands, but may perhaps become clearer.

In the remaining hour Ms. Gabrielle Gagné introduced a score of new orphan documents, which have not yet been made available on the plaintiff's database. There will be time to look at these next week when the trial is recessed.

For the rest of this week, a lawyer will be testifying. Mr. Guy Paul Massicotte was counsel for RJR-Macdonald in the late 1970s.

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 70: John Broen talks himself into another day

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.

Day 69: RBH enters the spotlight

Musical chairs have again been played on the benches of the defendant lawyers at the trial of Quebec's class action suits against tobacco companies. Over the next three weeks, the trial will focus on fact witnesses from Rothmans, Benson & Hedges (RBH) - now their lawyer, Simon Potter, will have his turn in the first row. Beside him today was his McCarthy-Tetrault colleague, Kristian Brabander. At the back of the room six newly-arrived members of Philip Morris' legal team watched closely.

Mr. Broen's tobacco career

The first witness from RBH is John Broen, a man who worked in the cigarette trade for 33 years. Originally trained as a civil engineer in his native Alberta, he joined Philip Morris's Canadian operation (Benson and Hedges) in 1967. Within 7 years he had become executive vice president of the company, and after a short sojourn for Philip Morris in Australia, he came back as president of the firm in 1976.

Mr. Broen was dismissed from that position in 1978 and went to work with the then-competitive firm, Rothmans of Pall Mall. When these two companies merged in 1986, he was appointed to head their marketing operations for a few years before being moved to the position of vice-president of corporate affairs. He held that position until his retirement in 2000.

Mr. Broen projected energy and determination throughout the day even though Mr. Potter had suggested that additional breaks might be required. At 73, he appeared to be in good health - if not in good humour.

His body language (crossed arms, shaking head and arched back) suggested his discomfort, as did his barbed editorial asides about the questions put to him. Together with the many chippy exchanges between lawyers Bruce Johnston (for the plaintiffs) and Simon Potter (for RBH), this combined to create a generally disagreeable mood throughout the day.  So much for the peace and serenity so deliberately introduced by the JTI team only last month!

Much to be defensive about

It didn't take long before lawyer and witness were engaged in a verbal tug of war that would last over the day.

Mr. Johnston moved quickly from the usual introductory questions and asked Mr. Broen whether he received training or had any dealings with the Tobacco Institute in the United States. Mr. Broen said there had been no formalized training, and that became aware of "tobacco issues" only in the course of his normal employment. He acknowledged that he had participated in a couple of annual meetings at the Tobacco Institute, but scoffed at them. "To be candid, I thought they were a bit of a waste of time," he said.  Several more questions about the Tobacco Institute received similarly unforthcoming replies.

Soon it became clear why so many chances were being given for Mr. Broen to speak about his experience of the Tobacco Institute -  his name appeared on roster of students who attended a 1978 training session. (Exhibit 759R - available on Legacy). Mr. Broen denied any memory of the event, and testified that he had not attended.

The witness' credibility took a second quick blow when the Court was shown a report that he had prepared on an unsuccessful test-market of a light version of Craven A. In this 1987 memo (Exhibit 757), Mr. Broen had reflected that the company should have lied about the tar levels on its packages.
In retrospect, the change should have taken place in three phases as follows:
l) Increase the 'tar' content of the product with no mention on packaging.
2) Adopt the new packaging
3) Print the new higher tar numbers on the packages several months after introduction.
(Today, Mr. Broen gave a long and confusing explanation of  the events that led to the memo, and why it should not be viewed as a suggestion to mislead consumers.)

Not a good day for Mr. Potter

Mr. Potter looked increasingly disgruntled over he day. His witness was frequently veering off course, providing head scratching answers to simple questions and looking less and less credible as either a witness or a senior executive.

Tobacco CEOs 1994: "I believe that nicotine is not addictive"Mr. Broen has no memory of this event

 (Mr. Broen had no memory, for example, of the 1994 testimony before Congress by seven tobacco CEO's even though he was responsible for public and government issues at the time this received enormous media coverage.)

The documents that Mr. Johnston introduced only made things look worse for RBH.

The Legacy of Mr. Patrick O'Neil.

Rothmans had been established in Canada for over two decades when Mr. Broen started working there in 1978. Although he had never met the first Canadian president, Mr. Patrick O'Neil-Dunn, Mr. Broen was familiar with his practice of providing new employees with introductory lectures on the cigarette business. The two that were were introduced into evidence today show a candid view of how the company approached the task of marketing to market the "evil" cigarette.  (Exhibit 758-9, 758-11)

Study, for instance, the Coca Cola advertisements, look at the picture of a group on a hot day, with a Coca Cola bottle dripping with dew, look at pictures in other advertisements of delicious looking steaks, glasses of beer beautifully illustrated, and you will realize how very important is our advertising agency. They must know how and use all the tricks of the advertising world to create the desire for the product we sell. If we can get our advertisements to make people want to light one of our cigarettes, we have done something.

From the desk of Robert Parker

Robert Parker was president of the CTMC during the 1994 House of Commons review of plain packaging. In a memo to Mr. Broen and other company public relations strategists, he recommended that the industry respond to its low credibility and the public perception that the "industry's real interest lies in increasing the level of smoking" by "establishing activities and support for smoking cessation."  

Mr. Broen confirmed that no such initiatives had ever been approved. Just as the industry had rejected the government's request that they provided additional health information on packages (Mr. Broen said it would "muddy the waters"), they rejected their own advisor's recommendation to support cessation efforts. Another fork in the road not taken.

Marketing insights.

Three documents presented towards the end of the day today showed the creative minds at RBH at work, and the way the company identified and followed through on marketing innovations.

These minutes of business development meetings (Exhibit 761-0794. 761-0197, 761-0894), trace consideration of ways to hide health warnings, to test the limits of legal restrictions, to reach out to ethnic groups, to get smoking back on airplanes, and to develop dozens of new products.

Exhibit 762 -
a good read!

The last document introduced today was a "picture-within-a-picture."
The "strategic review" prepared by RBH's market researcher, Connie Ellis, looked at documents produced at the first Canadian tobacco trial (the Tobacco Products Control Act Trial, in the early 1990s). With additional information from former employees from other companies, Ms. Ellis analyzed the marketing strategies of each company.

She noted the investments made by Imperial Tobacco and RJR-Macdonald  in reaching young smokers...
Imperial recognized early the importance of the "youth" market. As far back as 1971 Matinee's Marketing Plan indicated that "young smokers represent the major opportunity group for the cigarette industry. We should, therefore, determine their attitudes to smoking and health and how this might change over time". They have  since conducted in-depth studies (minimum 1, 000 consumers) every five years up to 1987.

RJR generated many studies and advertising campaigns focusing on starters i. e. 12-16 years old. Their objective was to optimize product and user imagery of  Export "A" against young starter smokers through an offensive strategy aimed at young, male, starter smokers.

By contrast, RBH had little marketing success to boast of - having fallen from a 43% market share in 1975 to less than 22% in 1994. She attributed some of the company's decline to its agreement to a voluntary codes "to stave off government intervention and regulations. When the code was finished it seemed to rein-in Rothmans' areas of strength: promotional activities, advertising and sampling." Ms. Ellis' cast a harsh eye on RBH's management decisions and lack of focused goals.

This 49 page document provides a clearly written history and analysis of the tobacco companies and the factors that contributed to their success and failure -- as seen through the eyes of an insider.

A retirement

This very acrimonious day ended on a pleasant note. The court secretary, Madame Blain, had announced her retirement some weeks past, and this was the moment when the plaintiff and defendant teams came  together to present her with flowers and a farewell gift.

When a court case spans over decades, there are many milestone moments to celebrate. This one was a pleasure to witness.

Tomorrow is Mr. Broen's second and possibly last day testifying. Mr. Norman Cohen, a former scientist with Rothmans, Benson & Hedges, is currently scheduled to testify on Wednesday and Thursday