Thursday, 6 March 2014

A nail-biting moment: Will the Court of Appeal open the door for individual medical records?

(based on a report by Pierre Croteau)

Quebec's Court of Appeal convened last Friday to hear Imperial Tobacco's request to jettison Justice Riordan's refusal to allow them access to the medical records of the ordinary Quebec smokers they intend to call as witnesses in the Blais and Létourneau class action trial.

This was a very important hearing, and could mark a pivotal point in the trial.

A decision by the Appeal Court that the individual medical circumstances of those who have been selected by this tobacco company to testify will destabilize the approach that Justice Riordan has taken to date -- i.e. that a population level approach should be taken, and that it is not practicable to consider the individual circumstances of the 1 million or so Quebecers implicated in this suit.

Justice Riordan had arranged for this review to take place in advance of the class witnesses appearing. (They are now penciled in beginning in late April). This issue was last discussed in his court last August, and his views were made clear in his September 13 ruling.

The Court of Appeal has sent a pretty consistent message to the companies after they began routinely appealing the rulings that Justice Riordan  was making as the trial was progressing: Wait until the trial finishes. No appeals were granted for many many months. (A chart of rulings in this case can be found here).

Last fall, one of those judges made an exception for the issue of medical records.  Judge Yves Marie Morissette decided in this instance to open the door to a review. And so, almost four months later, the issues were presented to three of his colleagues: Justices Marie-France BichJacques Dufresne and Dominique Bélanger.

Before them to present the opposing views were Ms. Suzanne Côté (for one of the class action defendants, Imperial Tobacco), and Marc Beauchemin and Gordon Kugler (for the plaintiffs Blais-Létourneau).

Although other lawyers were present, my colleague Pierre was the only public witness to this exchange, He tells me that due to frequent and seemingly unrelated interruptions by the judges, it was often hard to follow. These interjections also seemed to make it harder for the lawyers to deliver the case they had prepared.

Imperial's view

Imperial Tobacco is the only one of the three defendants in the class action suit who has claimed the intention to ask individual Quebec smokers to testify at the trial. Ms. Côté explained to the appeal court justices that they intended to call some smokers who had registered as class members, and also some who had not yet signalled their intention to be part of the class.

She acknowledged that the representative class members, Mr. Jean-Yves Blais and Ms. Cécilia Létourneau had been questioned before the trial began, although their depositions were not on the court record. Mr. Blais' medical record, she said, came only in the form of a report from the plaintiff's expert witness in lung disease, Dr. Alain Desjardins. (Dr Desjardins wrote that smoking was the likely cause of Mr. Blais' lung cancer.  Ms. Côté also said that Mr Blais' emphysema was congenital, although such an inference does not appear in the report.)

She argued that the question of whether such records were useful in Justice Riordan's decision should not affect the right of the defendants to call for them. It was the plaintiffs' choice to base their case on epidemiology, and hearing from some witnesses was a price they would have to pay.  She pointed to the opinion of the defence experts, who have said that epidemiology is an insufficient basis to establish proof of a causal relationship between any individual's smoking behaviour and having cancer. 

Me Côté suggested that Justice Riordan had reversed the rule of proportionality by giving the defence fewer means at their disposal than litigants in smaller claims received.

The plaintiffs' reply

Mr. Marc Beauchemin began his presentation of the plaintiffs' support for Justice Riordan's decision to keep medical records out of the case by referring to the testimony of some of the plaintiffs' expert witnesses, and some of the admissions that have already been made by their side.

"The multifactorality of disease, and variations in medical records... these are already on the record," he said. He pointed out that their experts had testified that the only way to establish causality in these circumstances was through the use of epidemiology. 

Mr. Beauchemin's warning sounded like he might be cautioning the Court of Appeal against entering into Justice Riordan's territory of assessing the credibility of conflicting witnesses. But before he could elaborate, he was again interrupted by a different question from a different judge -- and then again by another. The pace of interruptions made following the exchange an even greater challenge. 

He cited other rulings made by the Court of Appeal in this same case.  In 2012, Justice Richard Wagner (now at the Supreme Court) had explained why the Court of Appeal would uphold Justice Riordan's decision to not give the defendants earlier access to class members or their medical records. A few years earlier, Justice Francois Doyon had said that causality was a common question in this case. Mr. Beauchemin also cited a Supreme Court reflection on weaknesses in using individual medical records in collective claims.

Some practical realities of having individuals access their medical records were also addressed. Mr. Kugler (who has a long experience in medical litigation) underlined how difficult and costly it can be for someone - and especially for the elderly and ill -- to get their medical records. The burden of doing so needed to be put into the context of the claims they were seeking -- $5,000 in the Létourneau addiction case. Nor is it at all clear how far back one would have to go to satisfy the curiosity of the lawyers who would be questioning these witnesses.

The suspense

Preparations for these witnesses has already begun. Imperial Tobacco has assembled a short list, and Justice Riordan has required that it be made available to the plaintiffs team. The first of these is expected to testify in 7 weeks.

That's a long time to hold one's breath!