Day 37 - Not looking back

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


My role, you know, is not to rewrite the history, my role is more to manage the company going forward.

Marie Polet, President,
Imperial Tobacco Canada Limited

June 4, 2012

Marie Polet's ahistorical testimony about the activities of Imperial Tobacco Canada Ltd and its U.K. parent continued today at the Montreal class action trials against the three multinational tobacco companies operating in Canada.

The recently-arrived president provided similarly murky responses as she had yesterday. Repetition, in this case, was not the soul of persuasion, and the benefit of the doubt that had initially been extended her way  by Justice Riordan seemed to have worn away by close of the day.

As if to highlight the broad impact of BAT's attempts to make a break with the past by restructuring its operations and rotating country managers, plaintiff lawyer Bruce Johnston guided Ms. Polet through many subjects, stopping only briefly at any one topic.

There were many areas of tobacco use in Canada about which Marie Polet seemed to have less knowledge than most others in the room. She had no recollection or knowledge of the 1962 agreement between tobacco companies to not compete on the basis of health claims (Exhibit 154), nor her company's one-time interest in research on the brain waves of 11 year olds who began smoking (Exhibit 412). Nor did she claim familiarity with the implementation of the document destruction policy.  She had very little knowledge of Canadian smoking patterns. She did not know about previous (constitutional) litigation her company had initiated. (Exhibit 75A). She had no recall of the Surgeon General's recent report on preventing tobacco use among young people.

Pat Dunn, Bob Wade, Jean-Louis Mercier, Robert Bexon, Michel Descoteaux, Ed Ricard and others have become familiar names to this trial, etiher through their personal appearances or through the documents they left behind. Marie Polet's profound unfamiliarity with these individuals and their work made BAT's new era at Imperial Tobacco Canada seem not so much a break with the past as a break with reality.

Ms. Polet is the new face of BAT in Canada. Since these lawsuits were filed in 1998 (which is the end point for most of the document disclosure) the company has had to adapt and evolve. It is no longer a publicly traded company in Canada, but a wholly owned subsidiary of a multinational. It has shaped its marketing around new regulatory restrictions (in 1998 there were not yet bans on sponsorship promotion, retail displays, terms like light and mild and there were no requirements for graphic health warnings).

Just as she said, Marie Polet's job is to manage the company going forward.  In that sense, her testimony may be more meaningful to addressing the behaviour of the company today and in the future than in redressing its past behaviour. The lawyers at this trial will not be the only ones who will carefully parse her remarks over the past two days.

Safer? No and yes.

In 1997, BAT summarized its research into safer cigarettes (Exhibit 416) and included in this list its work on "the development of acceptable low tar products". Bruce Johnston used this document as a springboard to question Ms. Polet about current views on safer cigarettes. It would appear that the company is more than ever walking the line between "no claim on safety" and "no admission of specific harm."

When asked about low-tar cigarettes, Ms. Polet said There is no evidence that lower tar cigarettes or indeed any type of cigarettes are in anyway safer than higher tar cigarettes, and then added ambivalently Studies have shown that statistically, smokers who smoke ultra-low tar cigarettes as measured by the ISO methodology actually on average get a lower exposure to smoke than someone who .... smokes higher tar cigarettes.

The company continues to research safer cigarettes, but puts the onus for their acceptance on government.In the countries I know it would be against the law to claim things about our products along the lines of them being safer, she said.

As she had yesterday, Ms. Polet made reference to BAT being transparent about its research, pointing to its purpose-built web-site, www.bat-science.com.  We publicize every bit of work we do, she said.

Work continues on Project Day towards reducing toxins in smoke, she reported, even though the research has been moved to Southampton and the production plant to Switzerland. The trial had previously learned that research documents had been destroyed in Canada, it was only her testimony that revealed that the whole research undertakings had also been dismantled in Canada.

In the meantime, as she put it: We are selling a product which is inherently a risky product – it is a product which can cause serious and sometimes fatally diseases a and is a product that therefore we do want to mange responsibly. As for those who start smoking?  My understanding is that new smokers today are aware of the risk.  I said that a 12 year old person can read [the health warning].


Cause cancer? Yes and no. 

In 1981, Imperial Tobacco's scientist, Robert Gibb, had parsed BAT's proposed public statements on tobacco and health, and identified a problem with the way the company refused to accept epidemiological findings regarding causality. (Exhibit 20). Ms. Polet's responses to questions today suggest that BAT continues to struggle in this way.

Bruce Johnston: Do you know whether BAT ever denied that smoking caused lung cancer?

Deborah Glendinning:  Objection. This was covered at length yesterday. It has been asked and answered. 

Justice Riordan:  She did not give an answer

Bruce Johnston:  Has BAT ever denied that smoking causes lung cancer?

Justice Riordan rarely intervenes with witnesses, but today he too expressed frustration with the witnesses inability to answer directly without qualification.

Justice Riordan:  Has the company ever denied that smoking causes lung cancer?

Marie Polet:  To my knowledge and recollection I don’t believe that the company has denied that there is a link between one and the other. Statistically it does.

Bruce Johnston:  Do you know whether the company has denied that smoking caused lung cancer?

Marie Polet:  Based on statistical evidence, we have not denied it, to my knowledge.

Bruce Johnston: To your knowledge did  BAT ever deny that it cause lung cancer?

Justice Riordan.  She has answered in a qualified way.

Marie Polet: There are two ways of looking at the issue – general causation and specific causation. To to my knowledge, Bat has never denied general causation.  On an individual causation level, we don’t know and BAT says that is when somebody smokes it is not guaranteed, let me put it that way, that this person will get lung cancer. Some people may and some people may not.



An unfortunate echo from the past 

Because there is no record of Ms. Polet's activities in Canada, it is difficult for the plaintiff's to counter any unlikely claims she makes with documents. Bruce Johnston tried - unsuccessfully - to use her involvement in the launch of the Barclay cigarette to contextualize her understanding of marketing 'safer' cigarettes and compensation. (The Barclay cigarette was so compensatible that it caused a rift in the industry - Exhibit 235).

He was, however, successful in using her experience in that exercise to counter her testimony that BAT did not conduct research on young persons. It was in our principles not to talk to someone under age, she had testified. But from the Legacy site, an exchange of memos between her and Benjamin Kemball (who also became a president of Imperial Tobacco for a few years) described research on children as young as 15. (Exhibit 417).

The Court of Appeal says no.

On May 11th, Justice Marie St-Pierre of Quebec's Court of Appeal heard requests from Imperial Tobacco and JTI-Macdonald to appeal decisions of Justice Riordan regarding the admission of evidence. On June 4th, she turned down both requests, saying that it was not appropriate for a higher court intervention in the circumstances.

One  involved Justice Riordan's decision of May 2nd, which has been referred to almost daily during the trial, as Imperial Tobacco lawyers continue to object to the admission of evidence for which an author or recipient is no longer available. The other involved JTI-Macdonald's concerns about decisions to allow certain ITL documents to be filed. Whether it was out of the goodness of its heart or more strategic reasons that JTI-Macdonald volunteered to make an appeal on behalf of Imperial Tobacco has not been explained.

No more questions for Ms. Polet


At four o'clock, Bruce Johnston suddenly stopped his questions. Justice Riordan looked around the room to see if there were any other questions for the witness. Seeing none, he thanked Ms. Polet for her cooperation and invited her to step down.

Veterans of past health campaigns will be interested in the appearance tomorrow of Bill Neville, who headed up the Canadian Tobacco Manufacturers' Council during the development of Canada's first tobacco laws. He is expected to testify for at least two days.

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 36: The New Girl

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


It was business-a-little-different-than-usual when the trial of the Montreal class actions resumed this Monday morning. The atmosphere, which during last week's focus on science had been restless, was today markedly on edge. Everyone seemed to be walking on eggs.

The nervousness may have been due to the fact that the witness, Ms. Marie Polet, is the first company president to appear. Or it may have been because she is an unknown quantity to most in the room, having arrived in Canada only 8 months ago and having kept a very low public profile.

Marie Polet is no ordinary immigrant. She 'began at the top' at ITL even though she had no previous experience in Canada. (She had worked for 30 years in the marketing branches of European offices).

There are a few reasons why a company might want to vault a complete unknown into a top position. In this instance, it is hard to ignore the fact that Ms. Polet arrived in Canada just as this trial was originally set to begin (October 17, 2011), and while Imperial Tobacco was facing the unhappy prospect that its then-president, Mr. Ian Muir, would be forced to testify.

By giving Mr. Muir an early retirement and allowing him to return to England (beyond the reach of a subpoena), the company indirectly achieved its objective of blocking his testimony. By replacing him with someone with even less institutional memory, they effectively removed the company's rear-view mirror.

Marie Polet at BAT Denmark

If Ms. Polet was part of some elaborate corporate intrigue, however, she does not look the part. Like a "sensible girl" grown into middle age, she dressed today in a conservative black jacket, tan skirt and black stockings and shoes. Her chin-length black hair has not yet been allowed to grey, yet she wore no discernible make up. She kept at her side at all times a purse worthy of Margaret Thatcher.

Marie Polet's voice and diction were clear enough to be heard easily across the courtroom. She has a warm, friendly voice and a gentle affect which somewhat disguises her unyielding non-answers.  Although she also speaks French (German is her mother tongue), she asked to testify in English as most of the witnesses have chosen to do.

Kid glove treatment.

Earlier in the trial, Justice Riordan had suggested a kind of equality in his courtroom (Whether he's a CEO or the janitor, it doesn't really make any difference to me, except for the fact that it's harder to schedule a CEO than a  janitor, he said on May 8th). But soon after Ms. Polet began her testimony, it was clear that different rules applied to this witness than those who had come before her.

From the outset, Bruce Johnston was signalled that his leash with this witness was very short, and several times in the day his questions were blocked. It must have been gratifying for Imperial Tobacco lawyer, Deborah Glendinning, to have so many of her objections agreed to by the Judge while her client was on the stand. But it was not only the judge who treated this witness differently. Lawyers from other companies (Simon Potter for RBH/Philip Morris and Guy Pratte for JTI-Macdonald) stood more frequently to defend her from questions.

Even in the corridor, there were people looking out for her.  It was not clear whether the plain clothes security that accompanied her were provided by the company or the court, but they were seen working with court employees to help Ms. Polet slip out through a back entrance and avoid the media.

The woman who knew too little

There are many ways of not answering questions, but one of the easiest must be to make sure you don't know the answers. Ms. Polet is studiously unstudied: there is much about Imperial Tobacco that she has arranged not to learn.

She reported that she had prepared for her testimony in two meetings with lawyers, each of which was only 3 to 4 hours long. She said she had read the two binders of materials provided to her, but seemed to recognize none of the documents when they were brought forward for questions.

There was an element of surrealism as this president of a billion-dollar business facing a multi-billion dollar claim presented neither knowledge of or interest in the proceedings. In response to Bruce Johnston's questions she explained: My role is not to rewrite the history. My role is to manage the company going forward and so the answer is I didn’t go into any of those questions. 

Are you aware that you are the only representative of ITL  that has testified in this case so far?
Yes.

As president of Imperial Tobacco, Mme Polet, did you know think it would be appropriate to inquire about the truth of the allegations before coming to court?
I didn't spend time inquiring about that.

Why not?
Because I have just arrived recently. This is important but there are a lot of other responsibilities that I have and that is the reason.


The woman who doesn't want to know more

Ms. Polet was also unaware of the challenge Imperial Tobacco and other companies had filed against the Tobacco Products Control Act but would have learned something of it today when Bruce Johnston asked her about comments included in the 1995 Supreme Court ruling (Exhibit 75), including reference to the premature death of over 30,000 Canadians a year.

Does ITL agree with those numbers?

We don’t know these numbers exactly. There are no means to validate or to deny these numbers.

There are no means? Can you explain that?
We aren’t in a position to say that these numbers are right or to deny these numbers. No information that we have that allows us to do that.

What information would you need?
We aren’t experts. I am certainly no expert in that matter. I acknowledge them, but I cannot validate them or verify them or deny them.

Is there anything barring Imperial Tobacco from hiring an expert?

 I don’t see a reason why we should question the heatlh authorities and what they are saying about it.

Ms. Polet testified that Imperial Tobacco no longer had experts on staff that could offer any expertise.  The scientific advisory positions at Imperial Tobacco and the research laboratories have been shut down. (This was news to many of the room - as earlier testimony suggested that research was continuing at ITL, and as the company had responded in its pre-trial undertakings that there were five PhD level research scientists at the company. (Exhibit 297-1))

The woman who refused to be pinned down.

Mme Polet brought to this trial a refined state of non-knowledge. There were many occasions during the day when she would respond to a suggestion or question by neither agreeing nor disagreeing, but by combining two apparently opposing positions into an internally incoherent reply.

1994 BAT Position on epidemiology

Bruce Johnston showed her a 1994 public position statement written by BAT on the "Smoking Controversy" (Exhibit 409) which would be considered a text-book case of industry disinformation within the public health community in its framing of epidemiology as insufficient to prove causality. She disagreed with Bruce Johnston's suggestion that the paper was intended to cast doubt on epidemiology, and said instead that the conclusion is that smoking is statistically associated with disease – BAT has not denied this.  

When she was shown a memo from the highest level BAT leader (Sir Patrick Sheehy) to the highest level Imperial Tobacco boss (Purdy Crawford) on the preference of the parent company for research that was aimed at making smoking acceptable to authorities and the folly of focusing on a 'safer cigarette' (Exhibit 255A) she could not identify anything that would refute or confirm any position of her predecessors. Nor could she see a distinction between Sir Patrick Sheehy's identification of nicotine as "the key element" of cigarettes and her own statement that people smoked for many reasons, one of which being nicotine.

Yet some statements were helpfully clear

Research on safer cigarettes could not be considered to be directed at increasing the profit of the company, Ms. Polet testified, as it would be many years before a safer cigarette was on the market.  (This despite her report that the company spent 180 million british pounds a year on research).  For the moment, as she put it: There is no smoking product – no tobacco product that is safe to use.

The government in the driving seat - but who's the backseat driver

A recurring theme during the day's questioning was the company's responsibility to warn their customers, and Ms. Polet deferred such duties to government.

Did Imperial Tobacco ever advise consumers about the risks to using its products?
The government took the initiative to inform and warn consumers about the risks related to smoking. And they took the lead and made sure that consumers were informed.

That’s not an answer to my question. What did imperial tobacco do to inform their customers about the risks?
They let the government inform consumers. The role of the government was to inform consumers. This was clear from the beginning that they were in the driving seat on this. The government took the lead.

Later Bruce Johnston drew attention to the current court challenge Imperial Tobacco has launched against Health Canada's new requirements for 75% health warnings.

Why are you doing this?

Because we believe that the 75% size is not reasonable. The reason for that is that it is crystal clear to smokers in Canada that smoking can be harmful, that 50% health warning was big enough and visible enough so that there comes a point when size doesn’t matter. When you increase the size it doesn’t mean that consumers will be more aware.  Fifty percent size warnings on packages is very very visible.

The day's testimony ended as Bruce Johnston began to introduce the concept of completeness of information provided to smokers through the Health Canada web-site on warnings which includes expanded information on warnings. With some confusion and technical hiccups, the question was held over till tomorrow, when Ms. Polet will testify for the second day. 

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.