Wednesday, 8 October 2014

Day 241: Defending against the "money for smokers" case

Today was the day that the defendant tobacco companies began to present their final arguments in the Montreal tobacco trials. First up was Simon Potter, who represents Rothmans, Benson & Hedges (RBH), which is the Canadian subsidiary of Philip Morris International.

Again the unusually large crowd of onlookers created a sense of occasion. This time it was only the industry's side of the room that was full -- ah, but with a much more expensively-dressed audience than had turned out to watch the opening of the plaintiff's case two weeks ago!

A soloist

Simon Potter is not the only lawyer representing RBH, but reading the trial transcripts one might be lulled into thinking this is the case. 

His colleagues from the firm McCarthy-Tétrault ( Pierre-Jerome Bouchard, Kristian Brabender, Adam Klevinas, and Jean Francois Lehoux) are rarely given a speaking part in this theatre. Even the recently arrived Michael Feder (from their Vancouver office) is made to look as though he has only a walk-on role. Today he got to run the powerpoint slides.

I mention this because RBH is the only team in this long long trial to rely on one voice, one style, one relationship with the judge. I have often wondered why the world's largest tobacco company has its legal eggs in this one basket. 

Style and substance

Mr. Potter is not only the most flamboyant lawyer in the room, he is the most flamboyant orator I have seen since newsreels began to be shown in Technicolour. 

For someone, like myself, who is not familiar with the legal principles being discussed, this has some advantages. The rhetorical flourishes that ornament his points make them harder to miss. I appreciate the extra time to let ideas sink in.

It does, however, demand a different kind of patience on the part of the listener. Today there were signs of listener-fatigue. Usually it is the lawyers who call the time to break for coffee or lunch: today it was Justice Riordan who blew the whistle.

On the other hand, Mr. Potter will be making the shortest arguments of any of the three defendant teams. Originally provided with 4 days to present his views, he announced today that his comments would take only 2 days and would be finished tomorrow.

Not proven

The central theme to Mr. Potter's arguments today was that the plaintiffs had failed to prove their case. They had not proven that any actions were wrong, or that they could be linked to any damages of any individual. They had not proven their case for any one member of their class, and they had certainly not done it for the other million.

"Plaintiffs had a burden as all plaintiffs do to prove a fault, to prove injury and to prove a causal connection and to do that for every one of the class members...There is no evidence as to what actually happened or as to what class members actually did as a result of anything the defendants did."

Mr. Potter cited higher court rulings that class action plaintiffs had to meet the burden of establishing damages experienced by each member of the class, and also link those damages to the defendants' actions. "This burden does not change just because the plaintiffs sue on behalf of a million people. Or because they cover a period of 50 or 60 years."

He said this had not happened. "The eight common questions [set down for the trial when it was authorized to proceed as a class action] do not go to injury. They don't go to causation. They don't go to damages or quantification of damages. Not Judge Jasmin [who authorized the class actions] and nobody else has identified any commonality in those issues."

As a result, he could win even if he could not show that his client was innocent of the claims against it. "To win this case I only need the court to conclude that the plaintiffs have not proven that every class member has a valid claim."

Linking cause to effect

It is not enough to establish that someone is sick with a smoking-related disease and that they smoked, said Mr. Potter. He listed a number of other factors that should be established for each smoker: 
* When he started
* Why he started
* What he knew about the risks
* For how long he smoked
* What warning were on packs
* What brands were smoked
* What ads he saw
* Did he smoke higher or lower tar cigarette
* Whether he tried to quit
* If he had quit, whether and why he started again
* Whether and why he still smokers today
* Which of defendants' statements he had heard, if any
* What other risk factors he has for disease
* When did he smoke relative to the latency period of disease
* How has disease impacted his quality of life
He cautioned that to do otherwise would mean that some people would receive money from the claim who really were not eligible. Among these would be smokers who were not addicted and who liked smoking as well as ex-smokers who became ill even though they had quit so long ago that their increased risk of disease related to smoking had been reduced.

He mocked the idea of using statistics to determine eligibility in a claim. He suggested that the "more than 50%" probability that was used by the plaintiffs' epidemiologist (Jack Siemiatycki) to attribute disease to risk was akin to deciding that if 51% of the occupants of a room were men, then one would conclude, on the basis of an average, that everyone was a man. (Okay, I may have misstated this. It was a head-scratching moment).  

With these safeguards, he said, the Létourneau (addiction case) was a "money for smoking" case."I am a smoker - give me money." The Blais (disease) case he similarly characterized as a "money for being a sick smoker" case.

Smokers were warned. They knew of the risks.

Mr. Potter refuted the allegation that his company failed to give adequate warning. He said that a "sizeable portion [of the classes] has never smoked cigarettes without packages having an explicit government-approved warning." Only someone who stopped smoking in 1972 could be said to have not seen a warning each and every time they smoked, he said.

"Government didn't see need for a larger warning." He said that before 1972, that government officials said warnings were "silly." (I rather thought his slide which displayed government requirements for ever-larger warnings seemed to contradict this point, but there you go.) 

Mr. Potter said several times that smokers "overestimated" the risks of smoking. He bases this claim on evidence given by Kip Viscusi. Because the plaintiffs originally planned to call Paul Slovic to rebut this, but ended up not doing so, Mr. Potter says that Justice Riordan should draw a "negative inference" and see this as "uncontradicted"evidence.

Even then, he said, the product warning could not be considered insufficient just because it did not dissuade people from using cigarettes. He cited motorcycles as another product which has risks associated with it, but which people chose to use anyway.

According to Mr. Potter, cigarettes were no less safe than people expected. "There is no proof that cigarettes offered less than the safety one could expect. There's no safety defect. It's a cigarette." I wondered what I was supposed to understand from the dramatic pause he placed between each word: It's. A. Cigarette.

The government wanted cigarettes to be sold

The plaintiffs have argued that the dangerous nature of cigarettes means that they should be sold with liability attached. Mr. Potter said that this would go against the express policy of government.

"Risk utility argument flies in the face of ...government decisions made since the first decade of the last century not to ban cigarettes, but to allow, with licensing, the manufacture and sale of cigarettes." The fact that cigarettes are a "product you are licensed to make" is a "core policy of government." 

He pointed to the recent federal law, The Consumer Product Safety Act, and its predecessor, the Hazardous Products Act, as evidence that the government did not want tobacco products treated like other consumer goods. Both acts have statutory exemptions for cigarette products. This was no casual decision, he said. "Health and Welfare Canada had hundreds and hundreds of employees making this policy."

The hardworking obedient regulatee

Mr. Potter stressed that he was not arguing that cigarettes are not harmful, nor that there had been no occasional wrongdoing or poor thinking at the companies.

Nonetheless, he thought the judge should rule that "RBH acted as a responsible player." He defended the industry witnesses who had appeared at the trial as "honest people trying to do an honest job in a difficult, complex circumstance."  Given his own part in the story, and the controversy that has simmered over his involvement in the destruction of documents when he represented BAT/Imperial Tobacco, it sounded a little like a plea for clemency.

The dangers were not trivialized

The harmfulness of smoking has been known for "two turns of the century" he said, pointing to the century's old use of terms like "coffin nails" and "cancer sticks"  "Is there any other product which has common parlance indicating such a universal recognition of serious danger?"

He said that Rothmans had acknowledged the risks in its 1958 advertisements, and that subsequently the "essential nugget" of health information - the more you smoke the greater your risk - had been communicated in health warnings and other information.

Similarly, people have known for decades that "smoking was going to be hard to quit." If the company did not use the term "addiction" it was only because health authorities didn't either. He appealed to the views expressed at the trial by [former associate deputy minister and subsequently tobacco industry consultant]  Bert Liston that using the term "addiction" was neither scientific nor helpful.

He said it was "not a wrong to decide that we don't want to call smokers by a name that has all that baggage or that conveys the idea that it is harder to quit than it is."

Low tar cigarettes caused no harm

Pointing to the volume of government press releases and other material, Mr. Potter said that the sale of low-tar brands was entirely at the feet of government, said Mr. Potter. They were "not a wrong - they were compliance."  

Terms like "light" and "mild" were used appropriately. "If I have a brand that tastes more mild, I am going to call it mild."

These products caused no additional harm. "There is no evidence that anyone thought a low tar cigarette was safe." They did not affect the number of people who smoked - as his "Nobel-laureate" expert witness James Heckman had testified. (The Nobel prize winning bit was repeated a few times in the afternoon: no chance of it being overlooked!). 

Are cigarettes not safer?

Mr. Potter challenged the idea that cigarettes were not "safer" than they had previously been. "No reasonable commentator -  let alone witness --  let alone evidence - says that the right thing to do is to go back to cigarettes as they were in 1950s." 

Questions from the bench

Justice Riordan challenged Mr. Potter on a handful of occasions. Sometimes his comments seemed aimed at getting Mr. Potter to back down from extravagant claims - or at least pointing out where the claims had been exaggerated. (The statement that government thought health warnings were "silly" turned out to be a memo written by a tobacco official, and was related to their being "unrealistic" and not, as earlier stated by Mr. Potter, unnecessary.)

Other times they poked at the Mr. Potter's logic. Was his argument that the civil code did not require an admission of causation in warnings not also an argument that warnings should be issued before causation is admitted? What of his representation of relative risk as an arithmetic average? 

But mostly it is hard to tell from the bleachers how this trial is going for any of the participants. These folks would all do well at poker.

Tomorrow Mr. Potter is expected to finish presenting RBH's defence.