Monday, 29 April 2013

Day 138: Mid-trial review - the industry's perspective

Today's session at the Montreal tobacco trials was dedicated to the defendant tobacco companies' presentation of their much-ballyhooed motions of "non lieu."

 From 9:30 this morning until well after 4:30, the three companies tried to convince Justice Riordan that he had just wasted the last few years of his life.

Five months in the making

As long ago as November 13th, the companies had signalled that they would be asking the judge to dismiss both Quebec class action lawsuits after the plaintiffs' had finished presenting the evidence in their case. (This stage arrived when the proof was "closed" last week).

The judge repeatedly expressed strong reservations about such an unusual mid-trial hearing (and the delay it could cause to the trial) and even offered the plaintiffs the opportunity to provide procedural objections. But when that side decided to let it roll, the judge too seemed to accept the idea and today's hearing became fixed in the scheduled as a half-time show.

Today's motions have emerged as a kind of milestone in the trial. Until this half-time show is over, it seems, nothing else - like the scheduling of the defence witnesses - would proceed with any obvious show of good faith or cooperation.

Three companies, three requests, one goal

Of the four motions circulated earlier this month, three were discussed today:
* Imperial Tobacco's Motion for Dismissal and other pre-defence remedies,
* Rothmans, Benson & Hedges' motion To dismiss these proceedings as improper because of plaintiffs' unreasonable use of the class action procedure and
*  JTI-Macdonald's mostion to Dismiss and decertify.

While each request has distinctive elements, they all are nominally aimed at putting an end to trial before it goes any further. They rely on the powers given to Justice Riordan under Article 54.1 of  Quebec's Code of Civil Procedure.
54.1. A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned. 
The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate. 
Imperial Tobacco: The clock has run out

Suzanne Coté took the first run at trying to talk Justice Riordan into pulling the plug.  While setting her eyes on the big prize - the dismissal of the two suits -- Imperial Tobacco has identified some consolation prizes it thinks it is owed -- like an end to the prospect of punitive damages. (The formal list of demands appears at the end of this post). 

She began with the central argument of all three companies -- that it was not enough to show that the companies acted in wrongful ways because the link between this behaviour and the impact on any smokers must be firmly established. "Someone has to have smoked because of the wrongful action of the companies to be considered to have been harmed," she said. 

Moreover, the clock has run out on any claims. "Prescription" is the way the Quebec Civil Code addresses statute-of-limitations issues, and Imperial Tobacco considers that people who became sick  before November 19, 1995 (three years before the Blais suit was filed) or who didn't file a claim of addiction before September 30, 1994 (one year after the addiction warning appeared on packages) have missed the boat.

She was not fazed by measures which specifically remove such time-limitations and are included in Quebec's Bill 43, the Tobacco-Related Damages and Health Care Costs Recovery Act (clause 27). (Her client is fighting the constitutionality of that law in another case). 

Justice Riordan pushed Ms. Coté to share her views on whether Bill 43 should be interpreted in a "restrictive or liberal way" during the time the law was under challenge. After conferring with the other companies, she not unexpectedly said interpretation should be "very restrictive." As she said this,  her colleagues chimed in that approach was justified because this 2009 law "removed the right to certain defences." 

Ms. Coté singled-out actions of the representative class members, the late Mr. Jean-Yves Blais and Ms. Cécilia Létourneau, which she said justified the dismissal of the case against her client. Mr. Blais had never smoked cigarettes made by Imperial Tobacco and Ms. Létourneau had explicitly waived her right to seek any other damages from Imperial Tobacco when she went to Quebec's small claim court to recover the cost of her nicotine patches. 

"What would that mean - if Mrs. Létourneau were dropped from the case?" asked Justice Riordan. "Her claim would be dropped – and so would the whole class," replied Ms. Coté. 

Rothmans, Benson and Hedges: The plaintiffs' deliberate and fatal decisions. 

It was almost noon when Simon Potter began to present the arguments of his clients which strongly overlapped those of Imperial Tobacco. 

He pointed to what he described as major holes in the evidence which was put on record over the past  year. "The evidentiary gaps are fatal to the plaintiffs case, or at the very least to identifiable slices," he said. "And they are intentional. The plaintiffs intended to leave you with these evidentiary gaps." 

"It would be inappropriate to require defendants to come and defend themselves against evidentiary claims that don’t really do the job. If they don’t do the job, we can shut the thing down now or at least shut down identifiable slices." 

Mr. Potter drew attention to the plaintiffs' decision not to have any of the class members testify, nor to put any individualized information on the record. He implicitly acknowledged that the companies did not look very good after the first year of trial, but characterized the documentation of industry behaviour as a "Royal Commission of Inquiry" as opposed to a civil law suit. 

Even the industry's admissions were not relevant, he stressed, as they were not linked to harm experienced by any individuals. "The companies admit that it can be very difficult to quit," he said, "but they [the plaintiffs] did not sue for difficulty. They sued on the basis that they [the smokers] were incapable - unable - to exercise a choice."  

He asked Justice Riordan to issue a declaration that the proof on addiction had not be made, and to close the door on any further evidence being put by the plaintiffs when they cross-examined industry witnesses.

Mr. Potter adopted a mocking tone towards addiction and the claim of loss of self-esteem. "It goes against my grain that every single smoker has no self-esteem - that there isn't a single egotistical smoker," he said. If smokers as a class (and without information on individuals) have a claim from addiction, "then chocolate eaters have a claim and coffee drinkers have a claim."

"There is no evidence that it is different than trying to lose weight. I am in charge of my own weight. I know that," said Mr. Potter, who has previously used his (not very over) weight status to make a rhetorical point. 

Towards Mr. Blais he also levelled some sharp reflections. He reminded the court that Mr. Blais had started to smoke in 1954, but that "there is not even an allegation, let alone proof, that he started to smoke roll-your-owns as a results of something the defendants did."  

Mr. Potter left the impression that he saw Mr. Blais as the architect of his own misfortune as he continued to smoke even after the watershed decisions of the 1964 Surgeon General's report and the appearance of warnings on packages. "In 1972 the first warnings come out -- what does Mr. Blais do? He goes right on smoking... In 1987, a doctor told him to stop smoking - he went right on smoking two packs a day." As if to underscore this deficiency in Mr. Blais, Mr. Potter stressed "The people around Mr. Blais were quitting. " 

What's more, Mr. Potter said the law would agree that the responsibility belonged to this smoker. "The Civil Code says there is no liability for an injury that the plaintiff could have avoided." And without Mr. Blais's testimony, "the court must draw an unfavourable inference."

Mr. Potter returned to his theories of government and social consensus to argue that any form of punitive damage should be precluded. Such punishments are meant to deter, he said, but suggested that deterring the sale of tobacco is not on the cards. He pointed to the licensing of many levels of the tobacco trade as evidence that "Every government wants the sale of the product."

"What is the point of punitive damages to deter something that happened 50 years ago? It was a different world - certainly not like today." 

JTI-Macdonald: An annulment, please. Or at least break up the class

Guy Pratte presented his arguments in the last hour of the day.

He reinforced the view of his colleagues that the plaintiffs had failed to connect the dots between any wrongdoing of the company and any harm experienced by any individuals. He gave this missing link a name -- "wrongfully induced smoking."

"Whatever the statutory source, there has to be a link made between the alleged action and [the harm]. Otherwise we are not in a civilian system, we are in a penal system or an administrative system."

He stressed that epidemiological evidence was irrelevant and insufficient, a flaw which he said was also reflected in Justice Jasmin's decision which certified the class action. "For this reason as well," JTI-Macdonald's motion reads "the authorizing judgment must be revised and annulled."

Having identified the problem of lack of evidence on "wrongfully induced smoking", Mr. Pratte offered Justice Riordan an alternative way to manage the issue. He suggested that the class actions splintered and that individual's be allowed to seek damages in a post-Blais-Létourneau world. (This sounds remarkably like the post-Engle environment in Florida).

The mid-way mark of the mid-way mark.

Throughout the day, Justice Riordan's face reflected intense - and somber - thought. The importance of the discussion was reflected in high attendance on both sides of the bench. There were many moments when the whole room seemed to be scowling in concentration.

Tomorrow, the plaintiffs will respond to the motions. Imperial Tobacco will throw up some additional concerns (they want the document retention issue to be dismissed and have some other requests for direction). The discussion of these motions may spill over into Wednesday.

The requests:

Imperial Tobacco 
DISMISS the Blais/CQTS and/or Létourneau class actions;
DISMISS the Blais/CQTS class claim with respect to all members having been diagnosed with a tobacco-related disease prior to November 19, 1995;
DISMISS the personal claim of Plaintiff Blais;
DISMISS any personal claim by Mrs. Létourneau;
DISMISS the Blais/CQTS and/or Létourneau class and personal claims for punitive damages;
DECLARE that there will be no collective recovery of non-pecuniary compensatory damages;
DECLARE that the Plaintiffs have not met their threshold burden of establishing there was any duty to preserve documents at the relevant time (between 1990 and 1993);
DECLARE that destruction of documents cannot give rise to a claim for damages in this case;
DECLARE that destruction of documents cannot give rise to an adverse inference in these circumstances; and
ORDER that there is no need to hear any further evidence on the issue of document destruction.
Rothmans, Benson and Hedges
DISMISS Plaintiffs’ actions;

ANNUL the judgment of February 21, 2005 of the Honourable Pierre Jasmin;
DISMISS the Representative’s claims and both Class Actions;
ANNUL the judgment of February 21, 2005 of the Honourable Pierre Jasmin with respect to the Létourneau class action only, providing other relief by amending the judgment, as deemed appropriate, for the Blais class action;
AMEND the judgment of February 21, 2005 of the Honourable Pierre Jasmin by way of an order stating the following:
(a) that the issue of causation insofar as it concerns wrongful inducement shall be dealt with individually;
(b) that the issue of causation insofar as it concerns aetiology of disease and dependence shall be dealt with individually;
(c) that the issue of damages in all forms shall be dealt with individually.
STRIKE all conclusions in the Plaintiffs’ claims seeking collective recovery.