Monday, 26 August 2013

Day 160: Medical records and other "individual" matters

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

Today's hearing in the Montreal tobacco trials was another round in a well-stirred debate about whether harms should be measured on an individual or collective basis.

From the get-go, the tobacco companies have insisted that an individual assessment of each smokers' circumstances it required, and that without doing so any judgement about the actions of the companies is poorly founded.

Most of the judges who have ruled on the case over the past eight years, including at the 2005 certification of the class, have not let such this argument affect the two lawsuits from successfully moving towards trial.

Justice Riordan has ruled in favour of a collective approach at least three times.

The first time was in 2009, when he turned down the industry's request to contact and question members of the class. The companies had proposed a series of questions (how much each smokers knew about the risks of smoking, whether they had ever tried to quit, whether they had been advised by a physician to quit, etc) but the judge felt that these should be addressed through experts. "The size of the classes makes any other approach impracticable." 

The second time was in 2010, when the companies pushed for medical records. Justice Riordan repeated that such individualized information would be neither pertinent nor relevant.

A year late, in 2011, he was again asked to rule on related issues. Again he said no"What possible use can there be to learning specific medical facts about a few dozen class members, or even the 150 that ITL wishes to call to testify? It is simply not relevant at this stage." 

(The Court of Appeal upheld Justice Riordan's decisions in all three cases - 200920102012).

A short cut to a blind alley?

The door was not shut on members of the class being called to testify, however, although Imperial Tobacco is the only company to say it wishes to do so.

Earlier this year, this company indicated that several dozen would be asked to appear at the trial, but that they would not be scheduled until the end of the companies' defence (i.e. next fall).

This put Justice Riordan in a quandary.

He pointed out that such scheduling would almost certainly delay the end of the trial, and that it was almost certain that the companies would appeal his almost certain rulings to uphold the plaintiffs' almost certain objections to the industry's almost certain questions about the medical and smoking histories that had earlier been ruled out of order.

He has many times expressed concern at the length of this trial, and waiting for the Appeal Court to dispense with objections before these witnesses could be recalled would postpone his judgement by many months.

Before the summer break, Justice Riordan asked both teams to cooperate so as to give him the opportunity to rule this fall and to allow the appeal process run its course well before any Quebec smokers were called to the court.

It seemed like this process was on track, but today Imperial Tobacco showed today that it was not willing to cooperate fully.

The company, as planned, issued a test-case subpoena (which has not made public), and the plaintiffs responded with a motion to quash it (also not made public). But the fly in the ointment was revealed this morning when Suzanne Coté announced that she was not willing to discuss any of the questions they might wish to put to smokers during this testimony or to facilitate a ruling on them. (She referred to the 13 questions, appended below, that had also been previously ruled against).

Ms. Côté played her hand as if she held the trump card. If these other issues were discussed, she said, then she would withdraw her subpoena - and opportunity for any early rulings would be lost.

If Justice Riordan felt snookered by this move he did not show it.  But the result was a much reduced debate which took place this morning. In well under 2 hours the two sides completed their arguments on whether the subpoenas for witnesses and medical records should be allowed.

André Lespérance pointed out that the issue had already been decided, and that it was a "chose jugée." "Her subpoena is for the same things from the same members and for the same goals.... The question has already gone to the Court of Appeal".  

He reminded Justice Riordan that his 2009 ruling determined that individual issues should only be addressed after the final judgement, and that an alternative path had been established for this information to be presented on a collective basis. (Justice Riordan has allowed Imperial Tobacco to conduct a survey of Quebec smokers and submit it as evidence. Imperial Tobacco has been quite coy about it when the question has been raised -- is still missing in action).

In arguing that her subpoena should be permitted, Suzanne Coté said that much had changed since the earlier decisions, which were all made before the trial began. The rulings had acknowledged that circumstances could change, she pointed out -- Judge Wagner (then with the Court of Appeal) had qualified that his decision was only "at this time" and Justice Riordan had acknowledged that it was "unless the court considers such information to be useful to the adjudication at trial" that the medical records were off-limits.

Justice Riordan did not say when he would rule -- or what would happen with respect to the 13 questions.

(Post Script:  The ruling was rendered on September 13, 2013. Justice Riordan ruled that the medical records were not pertinent to the trial and quashed the subpoena.)

Stop the presses!

Also discussed today were the notices that will be published in Quebec newspapers to inform the public of changes to the class definitions. (See Justice Riordan's ruling of July 3).

Simon Potter (for Rothmans, Benson and Hedges) continued to express his disagreement with Justice Riordan's decision to place additional qualifications on who could be considered an injured smoker in either of the two class actions. 

Justice Riordan has previously commented on the irony of Mr. Potter's negative reaction, given that he was the one who sparked the reconsideration and that the companies stand to gain in that the re-working reduces the number of Quebecers who can make such claims.

As if to rub the irony in, the judge assigned to the companies the costs of inserting notices in major dailies in Montreal and Quebec City. Simon Potter seemed to resist the comfort offered when he was stuck with the bill that the companies would be able to claim the costs if they won the case.

(Is Mr. Potter hoping to bankrupt the plaintiffs? "It will come back if there were an award for costs – but the court might want to ask itself what would happen if there were an award for costs ..."  )

Not without reservation

The plaintiffs got a hard lesson in give-and-take this morning during a review of the "reserve" status that had been imposed on the documents they introduced during last week's cross-examination of the defendants' expert historian, Robert Perrins.  

It turns out that they were mistaken to think that the latitude they gave the tobacco companies would be reciprocated. The wide scope of documents permitted when André Castonguay, Marc Lalonde and Denis Choinière testified would be narrowed when it came to documents they wantesd introduced through Mr. Perrins.

"Mr. Perrins was not the appropriate witness," said Catherine McKenzie (who works for JTI-Macdonald when she is not writing novels). Such a practice would be "opening the barn door to production through experts." 

Justice Riordan sided with the defendants. The fact that plaintiffs had blinked didn't mean that the industry's lawyers had to, he pointed out. He suggested that the documents could be introduced through other witnesses or by using the "Article 2870" mechanism. 

The thirteen themes for questions identified by Imperial Tobacco for individual class members
a. Whether "there was a lack of sufficient indications as to the risks and dangers it involves or as to safety precautions" and whether the class members ''knew or could have known" of the risks associated with smoking;
b. The class members' awareness of the risks associated with smoking and the difficulty of quitting;
c. The class members' knowledge of the policies adopted by the Defendants; 
d. The class members' knowledge of any public statements made by the Defendants and whether those statements had any impact on their behavior;
e. The class members' knowledge of the marketing strategies and the advertising made by the Defendants, and whether those strategies and advertising had any impact on their behavior;
f. The class members' knowledge of any conspiracy on the part of the Defendants to withhold information;
g. With respect to collective recovery, the prejudice suffered, or lack thereof, by each class member;
h. When the class members starting smoking;
i. What type of cigarette they smoke (or smoked) and how many per day;
j Whether the class members ever attempted to quit smoking and whether they were successful in doing so;
k. When, if ever, the class members became aware that they were addicted,'
i. Whether the class members were ever advised by medical professionals of the risks associated with smoking or the necessity of quitting smoking; and 
m. The reasons that led the class members to start smoking.
Tomorrow Imperial Tobacco will call the first of several former employees as a fact witness. Mr. Andrew Porter is expected to testify for the rest of the week.

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:

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.