Wednesday, 24 June 2015

The de-prescribed and expanded Blais class

I am not proud to admit that there were several trial moments when my attention wandered while the lawyers argued about "prescription". (Prescription is the Quebec term for the limited period of time in which someone can file a lawsuit )

Generally speaking in Quebec a lawsuit has to be filed within 3 years of experiencing the issue that will be the subject of the suit. But the tobacco class actions are nothing if not exceptional, and it was the exceptions that kept the discussion hopping.

One exception was the 2009 law passed by Quebec (the Tobacco Damages and Health Care Costs Recovery Act) which lifted prescription for both the government and private class action lawsuits filed before 2012. In case that wasn't validation enough, the plaintiffs argued that the companies' wrongful actions should preclude them from being sheltered by the limitation period. And then there was the question of whether prescription really applied to some of the laws which were held to have been broken - like the Quebec Charter.

It was a very tangled web of arguments. I figured I would wait and see how it came out in the wash. And -- barring the rinse cycle of the appeals -- it has indeed come out in a way very favourable for the plaintiffs.

Justice Riordan's decisions on prescription have opened the door for many more Quebecers to be included in the Blais lawsuit than were originally anticipated.

The original body count: 110,000

The Blais case was filed in 1998 and authorized by the Quebec Superior Court some 7 years later. In the 2005 authorization ruling, the class was defined as those who were suffering from lung, larynx or throat cancer or emphysema "at the time the motion was served". - That is to say they would have had to be sick in November 1998.

The estimate of the number of people involved in the case was based on the report by Jack Siemiatycki, which considered only those diseases diagnosed after January 1995 and until the end of 2006. (Exhibit 1426.1) At that time, there were an estimated 110,000 potential class members identified who were sick and who would have smoked more than the then-proposed critical-dose of 36,500 cigarettes.

The forward looking change

After a year in court, the plaintiffs were encouraged to apply for a new definition of their class, one which would adopt a pack-year history as a criterion for inclusion and which would also move forward in time to include those who became ill after the suit was filed.

The plaintiffs asked for the class to be defined to those who were diagnosed between November 1998, when the suit was filed, and March 2012, when the trial started.

The two-step backward looking change

In July 2013, Justice Riordan approved this redefinition, but added his own twist. He removed the requirement that a claimant be diagnosed after November 1998.

Under normal rules of prescription, the effect might have been the same as if the November 1998 date had remained in the definition. Eligibility would have reached back three years before filing (to 1995) and anyone who became ill before then would be excluded.

When he ruled that prescription did not apply to the case, Justice Riordan opened the door to the pre-1995 group. As the class now stands, any resident of Quebec who became ill between 1950 and March 12, 2012 with one of the Blais diseases and who smoked 12 pack years or more before November 1998 is eligible to make a claim. If they died after 1998, their heirs are entitled to receive the money. (The class definition is pasted below).

The maybe-not-so-final numbers

The number of smokers newly qualified in the class is unknown.

Jack Siemiatycki's original estimate was crunched and re-crunched to adjust to trial developments, but it was never adjusted for this final change. (Those who became ill after 2006 were included, which added several thousand. Those who had immigrated were excluded, which eliminated 12% of potential claimants. The threshold amount was raised from 5 to 12 pack years, further reducing the class.)

The final estimate used by the judge was 99,957 eligible smokers. On this basis, he calculated that the companies would be liable for $6.86 billion. With interest to 2015, this grew to $15.5 billion.

But this estimate does not include the (unknown) number of people who became ill prior to 1995 and were still living in November 1998.

Justice Riordan acknowledges the discrepancy, but said he would let it ride.  "In its role as defender of the class's interests, the Court has the final word there. ...[we] wee no justification there to exclude otherwise eligible Disease victims from claiming compensation."

There will be no shortfall as "the plaintiffs will have the right to petition the court for additional deposits."

Will more money be needed? Perhaps not. Only a small percentage of an estimated 60,000 or more** Quebecers who were diagnosed with lung cancer before 1995, would have survived until 1998.

The final Blais class definition

All persons residing in Quebec who satisfy the following criteria:
1) To have smoked, before November 20, 1998, a minimum of 12 pack/years of cigarettes manufactured by the defendants (that is, the equivalent of a minimum of 87,600 cigarettes, namely any combination of the number of cigarettes smoked in a day multiplied by the number of days of consumption insofar as the total is equal to or greater than 87,600 cigarettes).
For example, 12 pack/years equals:
20 cigarettes a day for 12 years (20 X 365 X 12 = 87,600) or
30 cigarettes a day for 8 years (30 X 365 X 8 = 87,600) or
10 cigarettes a day for 24 years (10 X 365 X 24 = 87,600);
2) To have been diagnosed before March 12, 2012 with:
a) Lung cancer or
b) Cancer (squamous cell carcinoma) of the throat, that is to say of the larynx, the oropharynx or the hypopharynx or
c) Emphysema.
The group also includes the heirs of the persons deceased after November 20, 1998 who satisfied the criteria mentioned herein.


** Estimate based on filling in data missing from Statistics Canada Table 103-0550 and the Canadian Cancer Statistics from 1987.