Tuesday, 30 April 2013

Day 139: Mid-trial review - the plaintiffs speak

Despite the glory of the first few spring days to hit Eastern Canada, the key participants in Montreal's tobacco trial stayed inside -  nose-to-the-grindstone -- as they continued their intense discussion about whether or not the plug should be pulled on the two class actions that have kept Canada's big three tobacco companies in court for over a year.

The companies had their say yesterday. Today it was the plaintiffs' turn. Although virtually the entire plaintiffs team turned out, it was to Bruce Johnston that the responsibility fell to explain to Justice Riordan why ending the trial was not a good idea.

Justice Riordan has consistently declined to give the companies any comfort about this week's motions, and has certainly made no indications that these motions were likely to accomplish more than causing a few weeks' delay. Nonetheless, the mood in the courtroom over the past two days has been so somber and intense, that I came away wondering if it was possible that the curtain might indeed be brought down on the whole thing.

No one - and certainly not the judge - was acting as though this was a pro forma exercise.

I should make it clear that even after a year of faithful trial watching, most of what is said during legal arguments floats far over my head. It was no different today. Like jazz chords, the code in which these issues are presented (Bou Malhab! Biondi! rebuttable presumption!) is impenetrable to those like me who have not put in the time or who lack the brainpower.

But even those with a better grasp of the legal principles might have come away today thinking that the defendants and the plaintiffs appeared to have attended two very separate trials over the past many months.

It is not only substance that distinguishes the two sides of this court. This week's pleadings also showed the very different styles adopted by the sides - differences in rhetoric, preparation (no fancy bound plans of arguments for this side!) and even body language.

Bruce Johnston - one of the more physically energetic lawyers in the room - has been accused by Justice Riordan in the past of having "drunk too much coffee." Today he showed that he knows how to slow down and use silence to emphasize his ideas.

Following the full-throttle and highly-polished but very dry presentations by the three companies yesterday (think East European gymnasts), his more conversational tone (think Peter Gzowski) underscored the "let's get real" substance of his message.

He began by VERY slowly settling himself at the table directly facing Justice Riordan, arranging the microphone, his binder of notes and the five thick volumes of "authorities" that had been circulaed by the companies. He splayed his legs, as if extra balance might be needed as he settled in for the long haul, paused as if to ensure he had everyone's attention and then opened: "It's déja vu all over again." 

These motions, he said, were part of a pattern of delay and procedural abuse that the industry had used to drag out this and other trials. Since the trial began 15 years ago, they had witnessed this litigation strategy at play. We had no doubt that the industry would scorch the earth to prevent us from ever getting to trial - that they would scorch the earth before paying any victim."

As if to signal that the references that the industry had placed in its "authorities" were actually in support of the plaintiffs' cause, he relied on these references to make his points. The first was an by California law professor, Robert Rabin, (A sociolegal history of the tobacco tort litigation).

"It's fascinating that they wanted you to read this – I want you to read this," he told Justice Riordan. He read a passage that described how the industry set out to "as a first line of defense, spare no cost in exhausting their adversaries' resources short of the courthouse door."

Seeing today's motions in the context of a deliberate strategy to exhaust their opponents' resources, he pointed out that it was "extraordinary" that the companies were now appealing to a section of the procedural code designed to protect against abuse of process.

Straw Men and Red Herrings

The companies had hit hard at the idea that the proof against them could not sustain a judgement. Bruce Johnston challenged this view from several angles.

Firstly, he rejected the notion that smoking was an intermediary to disease. "Smoking doesn’t just cause disease," he said. "It is a disease. These companies sell the disease. They sell the disease to make profits."  In this context, there was no need or place for the idea of a "wrongful inducement to smoke."

The manufacture of cigarettes was in itself a harmful act. If you don’t make an addictive toxic product, would anyone buy it? Would anyone die from it? ... Their whole argument is as if it [the harm to smokers] has nothing to do with the cigarette coming into being."

He disagreed with Imperial Tobacco's position that there were any time limits (prescription) on either punitive or compensatory damages. It's not as if the harm had ever stopped, he pointed out. "The obligation to inform is a continuous obligation. The obligation to inform runs every day. Until you discharge it, it hasn't been done. Prescription will not start running until they execute their legal obligation."

Yesterday, Cecilia Létourneau's presentation at the small claims court in the late 1990s had been cited by Imperial Tobacco. Today, Bruce Johnston referred to the same occasion to put on record the denial by Imperial Tobacco of the addictiveness of cigarettes. (This was a few years after the addiction warning appeared on cigarettes). "The partner at [ITL's lawfirm] Ogilvy Renault - Maitre Rodrigue - told the court that smoking doesn’t cause addiction and that she had three boxes of documents to prove that." 

He denounced the view of addiction that had been presented by Simon Potter yesterday - that addiction meant one could not quit - as a straw man.  "If an alcoholic ever stops drinking, does that mean he wasn’t addicted?" "Did anyone ever stop injecting heroin?"  

He also criticized Mr. Potter's view that it was up to smokers to quit - and his suggestion that Mr. Blais was responsible for his own misfortune as had seen the health warning thousands of times, and had kept on smoking even after being advised to stop by his doctor.

Mr. Johnston compared smokers to people caught in a trap, and said it was morally unacceptable for those who dug the trap to blame those caught as not being strong enough to climb out.

When pushed by Justice Riordan to explain civil liability in the context of this analogy, Mr. Johnston said simply. "Digging the trap is a fault. Failing to inform is a civil fault. Being in a trap is a prejudice. Having a disease is an additional prejudice."  

He argued that causation in law is established not as in science, but on the balance of probability. In a case like lung cancer, it was reasonable to infer a causal link when the probability has been established. "If you can have causality when you slip and fall," he said referring to a recent case where Montreal streets had not been salted "then when you have the Mount Everest [of causes of lung cancer], we can rely on causation."

On the issues of whether an amount for compensation could be calculated on an average basis for smokers,  whether punitive damages could be assessed autonomously from compensatory payments, or whether causality could be addressed without individual claims or assessments, Mr. Johnston also provided a very different view of the law than I heard yesterday. He cited recent cases where courts had found a way to make these work -- some of which, like Biondi and Brault-Martineau, his own firm had managed).

Justice Riordan offered his own reservations about having to consider individual claims: "My beard is going to be a lot greyer if that happens!" 

Bruce Johnston challenged the idea that the case would have benefitted from the testimony of individual class members. "The idea that we should have brought members is wrong. That would not have helped you ... no matter how many members we brought to court." He said on the basis of he evidence provided that the judge was in a position to establish a significant average and deciding what damages should be in either case.

His presentation of the plaintiff's position took most of the morning.

During the afternoon, as the companies responded to Mr. Johnston's presentation, Justice Riordan engaged in more active debate/discussion, and used his body language to indicate where he didn't really buy some of the arguments presented. With Guy Pratte he debated the interpretation of harm caused in a certain murder suicide case, and pushed Suzanne Coté to accept the concept of a "continuous fault."

The legal onion seemed to be cut finer and finer as the day wore on.

Bruce Johnston was given the final word. He ended by challenging Simon Potter's characterization of their case and referred to the opening arguments that were presented over a year ago. 

"Mr. Potter understood our case on opening day. He said then that we were seeking a judgement that will ban the sale of cigarettes. That is and always has been part of our case."

Tomorrow the last of the mid-trial motions will be heard. They include Imperial Tobacco's request to have document destruction removed from the trial, as well as their request for requirements on the plaintiffs with respect to identifying evidence.