Monday, 20 October 2014

Day 243: Guy Pratte begins Japan Tobacco's defence

Over the first two years of this trial I came to the view that part of JTI-Macdonald's strategy was to be nicer in the courtroom than their co-defendants in the Montreal tobacco trials.

While not exactly deviating from the companies' united position, there have been many small and not-so-small ways in which it has been made known that this legal team is more willing to observe court-room niceties and professional courtesies than were the legal teams representing the other two companies.

If I ever caught Mr. Guy Pratte or his Borden Ladner Gervais team-mates (Francois Grondin, Kevin LaRoche, Patrick Plante) or tobacco trial veteran Catherine McKenzie let their decorum slip, I no longer recall it.

Today, however, Mr. Pratte seemed to drop any ambition for the Miss Congeniality award. He was caustic (about the unusual absence of a member of the plaintiff's team). He was derisive (of the moral qualities of a former client). He was almost chippy (in response to a clarification about what sounded like a minor slip-of-the-tongue).

He was a man with a new script. Literally. Mr. Pratte was obviously reading from a prepared text - something I have rarely seen in this courtroom. He didn't do so with his customary level of smooth.

In the observer section were about a dozen new onlookers as well as the regular Japan Tobacco team boosters. Was he playing to that audience instead of Justice Riordan?

No feigned moral outrage. Only propositions.

Mr. Pratte opened what will be a four-day presentation of a 1,000 page written argument with a litany of insults that had been levied against his client during the trial. Tobacco companies had been called "murderers" and "parasites," he recalled, and their lawyers denounced as "accomplices."

He told Justice Riordan that it was the "passion" of the plaintiffs, and not facts or legal principles that was driving this trial. "The plaintiffs want to you to condemn the defendants because they despise the tobacco companies." 

But in condemning the plaintiff's lack of detachment, perhaps he gave a glimpse of his own ambivalence "In a court you only submit propositions, You don't think them. You aren't convinced of them. .. Court rooms are not there to voice one's personal beliefs -- neither mine nor theirs. We are in a court of law, not a court of public opinion or parliament where feigned moral outrage passes for discourse." 

(He aligned his views with those expressed by the character of Sir Thomas More in A Man for All Seasons!)

For the remainder of the day, Mr. Pratte elaborated on his own propositions about the weaknesses in the plaintiffs' case and the reasons why Justice Riordan should find that, by the appropriate standards of the time, Despite some instances when the behaviour of the company fell short of perfection,  "JTI-Macdonald's conduct was overwhelmingly above reproach."

Common knowledge prompted uncommon law

Mr. Pratte said that the plaintiffs legal theories were "all designed to get rid of awareness and personal responsibility and leave as the only relevant variable the evil tobacco companies." Those representing Quebec smokers had "transmogrified" the law to get around "the inconvenient truth that smokers knew all along that smoking could kill them."

Fin de non-recevoir, risk/utility, reverse burden -- these were all principles that Mr. Pratte considers to have been improperly applied by the plaintiffs, or which did not belong at all in Quebec courts. Many long minutes were devoted to explaining exactly why.

Instead of an improper class action, there should be a million individual trials

Mr. Pratte contested the population-wide/epidemiological logic of the plaintiff's case. Legal causation, he said, could only be established individually. Before establishing that a smoker was entitled to compensation, the court would have to establish whether that individual had suffered any harm (prejudice), if that injury was linked to the conduct of his client. Even then, it would also be necessary to establish the time frame, as the laws had changed over the trial period (and the life of the smoker).

"The causation question is the 'ninth question' in this trial," he said. "How are you going to link what happens to an individual?"

He pointed to other tobacco class actions that had been refused certification (Caputo) or decertified (Engle) and said this was because the unique circumstances of each smoker made a collective award improper.

The plaintiffs had explained their decision to not call any class members to testify because they would not be representative, Mr. Pratte said. "You can't have it both ways" said Mr. Pratte. If they are considered identical with respect to causation, then they should be representative of all.

No need to warn. No duty to warn. No barriers to government warnings. 

Mr. Pratte spoke repeatedly of the overwhelming level of knowledge about the harms of smoking throughout the class period. It was this knowledge that absolved the company from any duty to provide additional information. "Duty to warn is not absolute: it is related to what people knew or could have known."

Moreover, the "duty to warn does not extend to the duty to make people believe."

He mocked the warning that the plaintiffs had proposed as closer to adequate. The plaintiffs had no evidence to support this approach, and had (twice!) altered it during their arguments last month, he pointed out. Moreover, the caution that "many can never quit" was contradicted by the messages provided by government (and the plaintiffs' expert on addiction). And the lead "do not use this product" was an invitation to those who smoked because they were rebellious.

Cigarette warnings had been in place since 1972 as a result of "persuasive regulation" or "legislative regulation", Mr. Pratte explained. There was never anything blocking the government from requiring stronger warnings on cigarettes, he said. The plaintiffs had the opportunity to question Health Canada witnesses - or to call for additional witnesses - to testify whether they had been hoodwinked by the industry about health effects or "taken to the cleaners."

He held up a pack with the new government warnings. "Can anyone say that these risks are not enough? It can't possibly be argued that they are not adequate."

The fact that people continued to smoke with the new warnings in place demonstrated that warnings would not have made a difference.  "There is no evidence that it would have made a difference for individuals. There is evidence that for the strongest warning possible, people still smoke."

One of 16 cigarette warnings required
on Canadian cigarette packages since 2012
(What he did not draw attention to was his own clients' attempts to block health warnings -- including those on the package that he held up today.)

Government, government, government

The government plays a big role in JTI's defence. It is referred to on an average of once a page in their written arguments, and was an echo over the day.

Mr. Pratte alluded not only to what the government had done (require warnings) but also what it had not done (require more of the companies or file charges of its own under the Consumer Protection Act).

He stressed that governments - federal and provincial - had made the decision to allow cigarettes to be sold, and that a ruling to support the plaintiffs' view that the sale of cigarettes should be a fault would "overrule what the authorities have explicitly, consciously, knowingly, permitted."

Mr. Pratte acknowledged openly that cigarettes hurt people. "Smoking is a stupid decision. A lot of people think the same about drinking, car racing, parachuting, hunting." but  "Government has not only allowed it to happen, it has regulated it and explicitly permitted it to happen."

Perhaps there will be a time when legislators will decide that cigarettes are so bad that [they should not be sold but] until that happens, that is not the state of the law that you must apply."

The time warp

Mr. Pratte introduced a number of temporal challenges for Justice Riordan. 

He insisted that the conduct of the companies be judged on the standards of the time -- and said that the lack of complaints about company behaviour suggested that there was no misconduct. 

He punctuated the timeline of the class period with the years when the Consumer Protection Act came into force, when the different warnings were implemented, when advertisements were in place. He syncopated that timeline against the likely smoking history of members of the class.  ("People who were sick in 1995 probably got sick as a result of smoking before 1980 (when the Consumer Protection Act came into force)."

He used the mashed up result as further justification for individual trials before any damages could be justified and a reason why punitive damages could not be assessed.

Reading the judge

I am sure I was not the only one who noticed Justice Riordan's steady gaze over the day, and wondered about his response to Mr. Pratte's very detailed explanations.

More intriguing yet were the questions that Justice Riordan put to Mr. Pratte, and the unexpectedly indirect responses.

In the morning, when asked a hypothetical question regarding the possibility that the companies might have had superior knowledge that health warnings were inadequate - Mr. Pratte sidestepped the question. (Twice!).

In the afternoon, a similar dynamic began when Justice Riordan asked Mr. Pratte whether the lung cancer suffered by some members of the Blais case was not evidence of injury ("prejudice"). Mr. Pratte seemed reluctant to make this admission but, when pressed, agreed.

Tomorrow, Mr. Pratte continues to present JTI-Macdonald's closing defence. The topics covered will be when the harms of smoking were known and what the companies said about them.