Friday, 12 April 2013

Day 136: Justice Riordan shows his trump cards

Yesterday's session at the Montreal tobacco trials ended with the judge in charge of these two massive class action suits responding to the defendant tobacco companies proposal to keep the trial going for a further two years.

Not in my lifetime! was his clear message.

A review of the bidding

Earlier in the week, after the judge's considerable prodding over many months (including formal direction to produce a detailed witness list), the companies had produced a schedule that openly challenged his preferences for how the next phase of the trial would be managed. With a ballooning list of witnesses, lengthy breaks and weeks' devoted to routine matters, they suggested they were settling in for a long time, if not a good time.

All that to say, they played their hand in a way that required a response from the bench. (Something more to include in appeals to higher courts, perhaps?)

Before the court broke for almost 2 weeks, Justice Riordan signalled that he was willing to use his power to curb the length of the trial.

"I have looked at scheduled proposed and I note that there are approximately 306 days of hearings over 2.5 years. From my position as an administrator of the system of justice in Quebec, I have a problem with that – I find that it is an excessive use of court resources ... I don’t see the justification for 306 days of hearings on the defendants' side.

I am seriously considering restricting you in the time I will hear you in defence. My initial sense is that 25% more time than the plaintiffs took – some 175 days would be more than ample to make the case in a reasonable and efficient manner.

I am seriously considering imposing that restriction the basis of article 4.1 of the [Quebec Code of Civil Procedure] and article 10.5 and in the interests of a proper administration of justice and court resources."

I will hear you on [April 23rd, the next scheduled day of the trial] on the subject. I will listen to both sides. I am doing this of my own accord at this stage. I think I have a duty to do it."

The ball is once again in the defendants' court. They have two weeks to figure out their next play!

Defining the classes

Before he issued this shot across the bow, Justice Riordan oversaw a formal discussion on the plaintiffs' proposal to change the definition of the proposed classes.

It has been clear for some time that Justice Riordan is not fully satisfied with the class definition that were authorized eight years ago by Justice Jasmin, and on numerous occasions he has indicated that he wanted language that gave clearer parameters.

The exercise of redrafting the classes was clearly not that straightforward, and even in the last few days there were apparently a number of modifications to the plaintiffs' proposal.

The e-mail exchanges that trace the text revisions are out of my sight, but Simon Potter was in full flight this morning as he expressed his outrage at receiving last-minute revisions. He was particularly irked that he had received a text when he was in a taxi on his way to court. (Perhaps if he had a dedicated van, as the Imperial counsel do, he would have been less bad-tempered about it).

Translations of the versions discussed today, as shown on the overhead screens, are shown below in the right hand column. On the left is the original class definition. Caution! rough-and-ready translation.

The Blais-CQTS class

2005 class definition

All persons residing in Quebec who had lung, larynx or throat cancer or emphysema at the time the motion was served or who have developed lung, larynx or throat cancer or emphysema since the motion was served after directly inhaling Cigarette smoke and smoking a minimum of fifteen cigarettes per period of twenty-four (24) hours over a prolonged and uninterrupted period of at least five (5) years, as well as the assigns of any person who met the above-mentioned requirements and who has died since the motion was served.
Proposed redefinition 

The group includes all persons residing in Quebec who meet the following criteria:

1. Have smoked cigarettes manufactured by the defendants for a minimum of 5 pack years (th equivalent of a minimum of 36,500 cigarettes, or any combination of the number of cigarettes smoked per day multiplied by the number of days of consumption were the product is higher than 36 600 cigarettes). 

For example:
5 pack years = 20 cigarettes per day for 5 years (20 x 5 x 365 = 36,600), or
5 pack years = 25 cigarettes per day for 4 years (25 x 4 x 365 = 36500) or
5 pack years = 10 cigarettes per day for 10 years (10 * 10 * 365 = 36,500) or
5 pack years =  50 cigarettes per day for 2 years (50 x 2 x 365 = 36,500)

And who

2. On November 18, 1998 suffered from or who developed before (date to be discussed)
a)  lung cancer, or
b)  cancer (epidermoid carcinoma) of the throat, such as cancer of the larynx, the oropharynx, the hypopharynx or the oral cavity), or
c)  emphysema.

The group also includes the legal heirs of any persons who died between September 30, 1998 and February 21, 2005 if at the moment of their death they had smoked cigarettes manufactured by the defendants and satisfied conditions 1 and 2 above.

The Letourneau class

2005 class definition

All persons residing in Quebec who, at the time of the service of the motion, were addicted to the nicotine contained in cigarettes manufactured by the defendants and who remained addicted, as well as the legal heirs of persons who were included in the group at the time of the service of the motion but later died without first quitting smoking.

Proposed redefinition 

The group is composed of all persons resident in Quebec dependent on nicotine contained in the cigarettes manufactured by the defendants who satisfy the following criteria :

1) They started smoking cigarettes manufactured by the defendants before September 30, 1994
2) On September 30, 1998 they were a daily smoker
3) On February 21, 2005 they were still smoking.

The group also includes the legal heirs of people who died between September 30, 1998 and February 21, 2005 if at the moment of their death they were smokers and met the conditions 1 and 2 above.

"Having your cake and eating it too"

All three companies opposed the new definition, and consistent with their approach in other questions where Justice Riordan has asked for input (i.e. market share), they did not offer their own position. You propose, we oppose seems to be their guiding principle.

Simon Potter (PMI/RBH) expressed the bulk of the substantive concerns of the companies, and Francois Grondin (JTI-Macdonald) offered legal arguments to support these positions. Imperial Tobacco was on mop-up duty.

With 8 years since the class was certified, the question of how to manage subsequent events will be a key one to resolve. If smokers were dependent between 1998 and 2005, but successfully quit later, should they be disqualified from the Létourneau class? If smokers developed cancers after 2005, but as a result of smoking cigarettes in the class period, should they be included in the Blais case?

The competing pressures (to close the gates at 2005 reduces the class for Blais but arguably expands the class for Létourneau) had both sides claiming that the other was inconsistent.

Justice Riordan suggested that it would be more efficient for the courts to consider cases that arose after 2005, as otherwise another class action could be filed on behalf of smokers excluded because of the time limit. He asked the defendants why they did not see it in their clients' interest to manage all of these potential claims in one go. The companies were resolute that they did not think the class should be expanded in any way.

Who's in - Who's out?

Other major points of disagreement were the criteria for inclusion in the class. In the Blais case, concern was focused on the inclusion of cancers of the oral cavity - an issue that was somewhat differently treated by the two expert reports (Dr. Guertin and Mr. Symiatycki). Justice Riordan suggested that a new notice could be issued (allowing those who might otherwise be eligible but who don't want to be included in the class to make their desire known), and this too did not meet with the industry's favour.

Establishing qualifications for addicted or dependent smokers in the Létourneau case will be one of the more challenging tasks. Philippe Trudel suggested that the size of the class would be statistically determined (by the number of smokers less those who have quit), but that eligibility for individuals would be established through the adminstration of the Fagerstrom test. Justice Riordan asked whether those criteria might not also be included in the class definition.

(A list of the many and various ways of measuring dependence is usefully provided in a recent IARC paper).

Simon Potter's "preposterous" and "ridiculous" suppositions

Simon Potter's position drew a rare statement from the bench that reveals something about how Justice Riordan is taking in the evidence put before him.

In his dispute over the definition of the class of addicted smokers, Mr. Potter tried to suggest that it tok 16 years (!!) of smoking before one could be considered addicted. He claimed this was the evidence of the plaintiffs' expert witness in addiction, and cited a response during his cross-examination of that witness. (On March 21, Mr. Potter had asked Dr. Negrete's about one of the studies cited in his report and the lapse of 16 years between the onset of smoking and the "identification of symptoms of dependence according to the criteria used in this interview." )

Dr. Negrete "confirms that the sample has the diagnosable condition arising after 16 years .. he says it 4 times," this lawyer argued with his remarkable talent of stressing almost every word.

While others were rolling their eyes, Justice Riordan responded to this bizarre position. This is something the judge rarely does, and the words he used to describe Mr. Potter's argument were among the stronger language I have heard him employ.

"This proof supports the argument that four years is an adequate period of time [to assume dependence has developed]. That doesn’t preclude you from making evidence that it takes 16 years – but it seems like a preposterous supposition.... 

Sixteen years is ridiculous. I am not the scientist, but at this point I have adequate proof that four years is more than a conservative figure."

What is "uninterrupted" smoking?

Another key issue that will need to be resolved is the interpretation of "uninterrupted."  Justice Jasmine's certification ruling had restricted the class to those who had smoked for a "prolonged and uninterrupted" period of at least 5  years. Does this mean that smokers who had made successful short term quitting attempts would not qualify?

On this point, the companies seemed to reflect somewhat different positions -- In the morning, Mr. Potter and Mr. Grondin suggested some openness to a short term quit not being considered an interruption, but in the afternoon Ms. Glendinning suggested this was a major legal issue.

"There is no ambiguity" in Justice Jasmin's ruling, she said. "You had to smoke at least 15 cigarettes a day for each day... It is very objective. You know whether you smoked 15 cigarettes per day for 5 years or longer – or you didn’t. There is no question about 'small quit' or 'big quit'." 

After this, Simon Potter clarified his earlier statement to align his company's views with those expressed by Ms. Glendinning.

Another important ruling in the offing

Justice Riordan did not say when he would make a decision on the class redefinition, but it will likely be before the defense starts its case on May 13th.

There is only one more day scheduled in the "plaintiffs proof". On April 23, Jean-Louis Mercier will return to vouch for some documents written by or sent to him. On the following week (April 29 and 30), the defense motions to halt or restrict the trial will be heard. (These motions will not be circulated until April 18th and I have yet to snatch the best English term to describe them).