Monday, 8 June 2015

Dependence? Addiction? "A rose by any other name would still have thorns."

Cécilia Létourneau
Through her innovative demand in small-claims court for reimbursement of the costs or nicotine patches, and by lending her name to one of Canada's largest class action, Cecilia Létourneau has pushed for almost 2 decades for compensation from cigarette companies her addiction to their products.

Twenty years later, she has yet to receive a dime. And last week's ruling by Justice Brian Riordan makes it unlikely she ever will.

The Superior Court judge decided that the wide variation in the experience of addiction made it inappropriate to assign a one-size-fits-most 'collective recovery' for the almost 1 million addicted Quebec smokers. Nor would he agree that individuals like Ms. Létourneau should be able to make claims, citing the high administrative costs and difficulties in assessing claims against the relatively low sum sought of $5,000 per smoker.

But by any other measure, Mme Létourneau has emerged from this lawsuit as a victor. The judge agreed that she and other smokers had been harmed by the companies' actions over decades, and that the companies broke three important Quebec laws.

The companies escaped having to pay individual smokers for the addiction they caused, but they must forfeit one of the largest punitive damage awards in Canadian history: $131 million .

This steep penalty was assessed, as Justice Riordan wrote, to send a "message to other industries that today or tomorrow find themselves in a similar moral conflict" and to prevent or deter similar wrongdoing.

Those facing similar moral conflicts might want to take note!

The many controversies of addiction

There was very little about addiction that was not the subject of fierce debate during the Blais-Létourneau trials. This topic was discussed with a ferocity otherwise reserved only for legal arguments. (By contrast, cancer, emphysema and other tobacco-caused disease were almost taken as given.)

The companies and the two experts who testified for them steadfastly refused to accept that the term addiction could be given any firm medical or legal meaning with respect to smoking. It did not affect reasoning, it did not intoxicate, smokers can still quit.

So in his ruling, Justice Riordan had to build his decision almost from first principles. Did tobacco products create a dependency? Is such a dependency an actual harm? Is this a harm to which legal liability can be attached? Only then did he turn to the questions of whether any such harms could by pinned on the companies or whether addicted smokers should be compensated for this injury.

Ditching the semantics 

"Vocabulary took on excessive proportions in the discussion on dependence." The judge noted that this was linguistic debate was a strategic one for the defence, whose experts had "used semantics as a way of side-stepping the real issue of identifying the harm that smoking causes to people who are dependent on tobacco."

He characterized their view as one where "nicotine is no more dependence creating than many other socially acceptable activities, such as eating chocolate, drinking coffee or shopping,"-  "state of benevolent dependence, one that can be conquered by ordinary will power."

For his own part, Justice Riordan prefers the term "dependence," but for him, there is "little significance to the specific word used."

"What is important is the reality that, for the great majority of people, smoking will be difficult to stop because of the pharmacological effect of nicotine on the brain. That which we call a rose by any other name would still have thorns."

Measuring the harms of addiction

It was the addictiveness of cigarettes that made it inappropriate to place the responsibility for failing to quit on the smoker.

"[179] Will power certainly plays a role, but that is not the point here. Nicotine affects the brain in a way that makes continued exposure to it strongly preferable to ceasing that exposure. In other words, although it can vary from individual to individual, nicotine creates dependence."

He elaborated on the harms experienced by this difficulty in quitting.

"[183] Dependence on any substance, to any degree, would be degrading for any reasonable person. It attacks one's personal freedom and dignity. When that substance is a toxic one, moreover, that dependence threatens a person's right to life and personal inviolability."

He also accepted the plaintiffs' position on the specific harms that resulted:
  • The risk of a premature death is the most serious damage suffered by a person who is dependent on tobacco
  • The average indicator of quality of life is lower for smokers than for ex-smokers, especially with respect to mental health, emotional balance, social functionality and general vitality
  • There is a direct correlation between the gravity of the tobacco dependence and  a lower perception of personal well-being
  • Dependence on tobacco limits a person's freedom of action, making him a slave to a habit that permeates his daily activities and restricts his freedom of choice and of decision;
  • When deprived of nicotine, a dependent person suffers withdrawal symptoms, such as irritability, impatience, bad moods, anxiety, loss of concentration, interpersonal difficulties, insomnia, increased appetite and an overwhelming desire to smoke.
Justice Riordan ruled that someone can be considered to be dependent on cigarettes if they are a daily smoker of at least 15 cigarettes per day who has been smoking for at least 4 years.

Did everybody know?

Justice Riordan again used the evidence of defence witnesses establish the date at which the companies would have been aware of the addictiveness of their products.

He ruled that if their expert historian, David Flaherty, felt that there was knowledge available from the mid 1950s that it was difficult to quit smoking, then the companies would have held this knowledge from this early date. (He also cited their industry correspondence acknowledging addiction in the mid 1970s).

But the general public did not have this knowledge for a further 40 years - almost a decade after the 1988 U.S. Surgeon General's report on the topic. The industry's ability to forestall a warning on addiction until 1994 came back to bite them in this ruling.

"Although Canadians paid much attention to the Surgeon General Reports, the Court sees the new Warning on addiction as confirmation that the Quebec public did not have sufficient knowledge before its appearance.... If the government, with all its resources, was not sufficiently concerned about the risk of tobacco dependence to require a warning about it, then we must assume that the average person was even less concerned."

It would be a further two years (March 1996) before the "great majority" of Quebecers could have been considered to have absorbed this information, ruled the judge. "The impact of decades of silence and mixed messages is not halted on a dime. The Titanic could not stop at a red light."  

Even after that date, the companies had a liability for those who became dependent, although it was reduced to 80% in the case of those who started smoking after the threshold date of March 1, 1992. (Since dependence was considered to take 4 years to set in, these individuals could be considered to have become dependent after they knew of the risk).

The companies knew. The public didn't know. The companies knew that the public didn't know - a fact that Justice Riordan condemns.

"[239] By choosing not to inform either the public health authorities or the public directly of what they knew, the Companies chose profits over the health of their customers. Whatever else can be said about that choice, it is clear that it represent a fault of the most egregious nature and one that must be considered in the context of punitive damages."

The broken laws 

Although the issues were separately assessed, Justice Riordan came to the same conclusions with respect to the laws that were broken with respect to emphysema and cancer of the lung and throat and to addiction.

Their failure to warn went against several several parts of Quebec law, including the Civil Code general duty "not to cause injury to another," its obligations on manufacturers with respect to safety defects, the right to life and personal security guaranteed under the Quebec Charter of Human Rights and Freedoms and the Quebec Consumer Protection Act.

He ruled the companies' breach of their general duty to not harm others had continued to the end of the class period.

Victims, yes. Compensated, no. 

As noted above, this careful parsing of dates of knowledge and criteria of dependence are of little comfort to the almost one million Quebec smokers whom Justice Riordan has ruled were harmed by the wrongful acts of the companies, but who will receive no individual compensation.

The $131 million punitive damages must be paid by the companies within the next 60 days. What will happen to that money - during and after the inevitable appeals of this ruling -- is yet to be resolved.