Monday, 1 June 2015

Victory for tobacco's victims. Victory for public health. Victory for society.

"Knowingly exposing people to the type of dangers that the Companies knew cigarettes represented without any precaution signals being sent is beyond irresponsible at any time of the Class Period. It is also intentionally negligent."

Justice Brian RiordanQuebec Superior CourtJune 1, 2015

The "send" button was pressed at 4:00 this afternoon, and copies of Justice Riordan's 236-page ruling on the Blais-Létourneau trials began to circulate.

An hour later, a press conference was underway at the Maison du développement durable on St. Catherine Street in downtown Montreal. I and a number of public health colleagues crashed the event to hear the plaintiffs and their lawyers describe their victory. 

This was no sign of a rushed production. The media packages and powerpoint slides made clear that the ruling had been in the hands of the legal teams for long enough to mobilize a communications effort. The losing tobacco companies had their own PR machine in gear and issued their press statements shortly after 4:00 p.m. (Imperial Tobacco was "disappointed", Rothmans will appeal and so will JTI-Macdonald.)

The happy task of outlining the ruling to the media fell to Mario Bujold, who heads the Conseil québécois sur le tabac et la santé. The CQTS was one of the principal litigants in the action, joining with lung-cancer victim Jean-Yves Blais to fight for compensation for Quebec smokers who suffered from lung cancer, emphysema or throat cancer. 

He began by acknowledging the accomplishment of the small team of lawyers who had fought the lawsuits for almost 2 decades. He introduced them by name:  Michel Bélanger, André Lespérance, Philippe Trudel, Bruce Johnston, Gabrielle Gagné, Marc Beauchemin, Gordon Kugler and Pierre Boivin. 

The contribution of many other lawyers, including some of those who more recently joined the team, was also acknowledged, to the applause of those, like me, who were not troubled about breaking the protocol of a press conference.

Jean Yves Blais
It was an emotional moment -- made more so in the following moments by the comments of Mme. Lise Blais, the widow of Jean-Yves Blais who died of lung cancer a few months after the trial that bore his name began. 

"My husband was my hero," she said, choking a bit as she expressed anger at the destructiveness of cigarettes and pleasure at the victory he did not live to enjoy. As a moment of silence was held in his memory, a picture of Mr. Blais was projected above.

Mr. Lespérance was the first lawyer to speak. The ruling was not only a victory for victims like Mr. Blais, he said, it was a victory for society in general and also for Quebec's justice system and its measures to foster access to justice. 

He condemned the companies' behaviour by reading an extract from Justice Riordan's ruling: "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."

Mr. Johnston followed with a quote from Victor Hugo: "All the forces in the world are not so powerful as an idea whose time has come."  

The decision showed that the idea whose time has come was that no industry can any longer hold itself above the law. This was a victory for public health and for accountability. He too, quoted Justice Riordan: "[T]these companies colluded among themselves in order to impede the public from learning of health-related information about smoking, a collusion that continued for many decades thereafter."

It was not a long event, as after a short round of questions, it was already closing in on 6:00. With a big story to file, the media scurried off. In a more relaxed way, the lawyers, their clients and some admirers headed off to a celebration.

As for Justice Riordan? I'll wager that he too is celebrating. As am I. 


Key points from Justice Riordan's Ruling, which can be downloaded here 

Justice Riordan found the companies breached four Quebec laws in both cases.  "They committed four separate faults, including under the general duty not to cause injury to another person, under the duty of a manufacturer to inform its customers of the risks and dangers of its products, under the Quebec Charter of Human Rights and Freedoms and under the Quebec Consumer Protection Act."

He ruled that the smoking of members of the Blais and Létourneau cases was "caused by a fault of the companies," although those who started smoking after certain dates (1976 for lung disease and 1992 for addiction) had to bear 20% partial responsibility.  

In the Blais lung-disease case:

* Justice Riordan awarded $6.86 billion in moral damages to the almost 100,000 Quebec smokers whose serious illness makes them eligible to be members of this class. Once interest and other charges are added, the total could be $15.5 billion.

*Those who have lung or throat cancer will receive $100,000 if they started smoking before 1976 and $80,000 if they started smoking after 1976. Those with emphysema will receive $30,000 if they started smoking before 1976 and $24,000 if after. Once interest is considered, these amounts could be doubled or more.

* To be eligible for payment, a smoker with one of the covered diseases must have smoked for 12 pack  years and be diagnosed before March 12, 2012.

* The payments are divided as follows: Imperial Tobacco 67%, Rothmans, Benson and Hedges 20% and JTI-Macdonald 13%.  The companies must post an initial $1 billion within the next 60 days, even if they appeal his decision. (Usually the loser can wait until they have exhausted appeals before having to make any payment).

* The judge assigns punitive damages based on one year's income to each company. Imperial Tobacco receives an additional 50% penalty in recognition of some of its actions (like the destruction of scientific documents). JTI-Macdonald has to pay an additional 25% in punitive damages in recognition of its attempts to make itself creditor-proof by entering into a peculiar debt-relationship with its multinational owner.

* Punitive damages are reduced in the Blais case to $30,000 per company (one dollar for each Canadian killed by smoking in a year). Justice Riordan cits the large amount of other damages as reason for this adjustment.

In the Létourneau (addiction) case:

* Justice Riordan does not award a collective recovery for addicted smokers, saying that the circumstances of each smoker are too different to make a blanket assessment of damages for each person. "The inevitable and significant differences among the hundreds of thousands of Létourneau Class Members with respect to the nature and degree of the moral damages claimed make it impossible to establish with sufficient accuracy the total amount of the claims of the Class. That part of the Létourneau action must be dismissed."  He said that conducting individual assessments would be too expensive for the value of the award. 

* Punitive damages in the Létourneau case are set at $130 million. ($72.5 million to Imperial Tobacco, $46 million to Rothmans, Benson and Hedges, and $12,5 million to JTI-Macdonald.)


The ruling requires the companies to pay the plaintiffs' costs, including all costs related to expert witnesses.

There will be more hearings. The judge leaves to future discussion how the payments will be disbursed, including deciding how the money remaining from the $130 million punitive damage award after lawyers' fees have been assessed will be spent.

By coincidence, today was the day that the merger of the firms that began the two distinct lawsuits in 1998 was formalized. Potential rivals when the actions began in 1998, the team is now united under the banner Trudel Johnston & Lespérance).

Tomorrow, some flavourful extracts from Justice Riordan's decision.