Tuesday, 22 November 2016

QCA 2: The burden of proving every individual's case

The second day of the Appeal Court hearing on the Montreal tobacco trials opened with a much reduced sense of occasion than was evident yesterday.

It was a smaller audience that obediently stood at 9:30 to allow the five Justices to take their seats (and it would become smaller again before the end of the day). Even then, there were more present to watch Justice Riordan's decision be challenged than there had ever been in his court while he was developing it.

Medical Causation

Guy Pratte picked up where he had left off yesterday and began to layer more reasons why a determination that tobacco companies were responsible when smokers got certain cancers or lung disease was not consistent with legal reasoning in Quebec.

He spent most of the morning working to establish that there was insufficient and substandard evidence to conclude that those who smoked for 12 pack years or more AND who became ill with one of the debilitating or fatal diseases in the Blais class were entitled to the conclusion that it was cigarette smoking that caused their disease.

Guy Pratte
There was much that was familiar in what he said - and not only because it reasonably closely followed the written arguments (pages 58-92) that had been filed with the court almost a year ago.

The familiarity came also from repeated delivery: the arguments forwarded by Mr. Pratte today are virtually identical to those he used in a failed attempt to persuade Justice Riordan two years ago (see blog of October 23, 2014), in addition to the many times he raised them during the trial.

Indeed, his slice-and-dice critique of the simple pack-year test devised by  the plaintiffs' expert epidemiologist, Jack Siemiatycki, has not varied much since its first exposure so long ago. Nor has his insistent faith in the superior skills of Laurentius Marais, whom Mr. Pratte had hired to kick the stuffing out of the Siemiatycki method.

Mr. Marais looked on today as his efforts were detailed to the judges, and was doubtless pleased to have the court told that "Justice Riordan was wrong to dismiss Dr. Marais' evidence." 

There were some key differences in the story told today about  Mr. Marais contribution and my own memory of events and notes. Mr. Pratte made it sound as though Mr. Marais had provided Justice Riordan with constructive options to establish a statistical proof of causation. Justice Riordan responded to most of these in his ruling, identifying eight reasons to reject evidence. Today Mr. Pratte put a lot of weight on the plaintiffs' not having cross examined him on the methods he used to develop additional confidence intervals on the Siematycki data.

There were some new elements in Mr. Pratte's attack on the Siemiatycki method, including those which characterized Justice Riordan's use of them as judicial errors. The pack-year approach adopted by Justice Riordan, even with the additional margin of extending the threshold from 5 to 12 pack years, was not legally reliable, he claimed. "The scale you use to measure who has passed the balance of probabilities cannot in itself be measured on the balance of probabilities." ... "He fundamentally misunderstands the reliability that is critical if you develop the scale. ... He will never be able to tell who in the class has met the balance of probability. At best it will be probably probable." 

Mr. Pratte also tried to limit the way in which Quebec's special law for certain tobacco lawsuits (the Tobacco-related Damages and Health Care Costs Recovery Act) could be applied to the case. Statistical proof for medical causation might be acceptable under s. 15 of that law, he accepted, but it most certainly could not be used to justify presumptions to establish conduct causation.

For most of this exposition, Mr. Pratte was allowed to present his views with few questions or interventions from the bench. They teased him about being boring, and he good-naturedly played into it. In fairness, there are very few audiences that would find a criticism of epidemiological methods to be anything but dull. 

It was when he turned to the issue of addiction, however, that there was more of a spark about the construction of his arguments that drew criticism. Justice Kasirer took exception to the way addiction was not addressed head-on, and was couched instead in language of "hard to quit" and "dependence". "How is this different than the argument presented for decades [by the companies] that addiction is a good word for heroin, but not for tobacco?"  

Collective Recovery 

Mahmud Jamal 
Towards the end of the morning, Mr. Pratte changed places with Mahmud Jamal, a relatively new face at the head of the Imperial Tobacco team. (This is his second appearance in court on this case that I know of). 

Mr. Jamal's upper-class British accent seems to enhance his listenable way of presenting his case. To these ears, even decades after cultural decolonization, it seems also to lend him an air of authority. He certainly seemed to have the rapt attention of the bench as he elaborated on his reasons that collective recovery was a not justifiable conclusion to this case.

The administrative difference between collective and individual recovery is kindly explained by a Quebec lawfirm specializing in class actions:

When the evidence brought to court allows to do so, the final ruling orders collective recovery, in other words the court orders the defendant to pay an amount covering all the damages incurred by all the class members. The members are then asked to submit their claims to an administrator, who gives them the share of the total to which they are entitled.

Yet it is sometimes impossible to produce evidence that can be used to determine with sufficient accuracy the total amount of members' claims. In that case, individual claims have to be used. Thus each class member is asked to produce their claim and establish the value of the damages by a preponderance of evidence. The individual claims process can therefore entail a multitude of small court trials in which class members appear, one by one, to establish their right to be compensated.
Yet collective recovery is the rule, and the individual claims process the exception.

Mr. Jamal had a list of "principles" and "specific legal errors" which he felt justified the striking down of any decision to award a collective recovery for smoker suffering from disease - "any one of which is sufficient to set aside the award." 

At the core of all of them was the risk that his client would have to pay more under collective recovery than they would under individual recovery. He raised concerns about "people who are fully aware of the risks" being compensated, the absence of evidence of the number of people who smoked as a result of an alleged fault, the increased penalty on the companies that arises from a lack of accuracy of the number of claimants, the differences between the circumstances of those who have smoked and who are ill. If the "vast majority" is considered to be aware of January 1st, then surely a majority would have known in the preceding weeks, and yet they would all be considered under this judgment to be members of the class.

Collective recovery would rob the defendants of their right to defend against claims by those who were not properly entitled. Only by individual assessment could this be made.

Justice Riordan increased the threshold of eligibility and therefore reduced the number of people who would otherwise be compensated if the standard of more likely than not (50% probabiliyt) had been applied. Mr. Jamal said that scaling back their liability in this way did not overcome their legal entitlement to not have to pay to anyone whose individual case might not succeed. 

Justice Hilton has asked a few questions over the past two days that signal his interest in whether the Quebec class actions should go the way of the Florida Engle case and its progeny. This afternoon he asked Mr. Jamal whether the collective recovery might be "transformable" into individual claims. Mr Jamal did not back down from the primary position that the whole case should be dismissed, but allowed that "it was open to the court to salvage some findings of fact and to develop a way for individual proceedings."

Justice Kasirer later picked up this theme, asking for further description of how Mr. Jamal thought individual claims could work, and wondering about the effect of mini trials on the goal of increasing access to justice. "Would it not risk undoing the benefits of class actions by creating a second stage that will render the first stage useless?"

(No-one has yet addressed the 'scorched earth' approach to litigation adopted by tobacco companies which have prevented and prevent individual trials from being economically viable, nor the cost to the court system of running 100,000 cases).
The absence of class witnesses

The plaintiffs have been given a constant drubbing over the past two days (as they did in the closing arguments) about the absence of any members of the classes on the witness list.  Today, a taste of the same medicine was offered to Mr. Jamal from the bench.

After suggesting that testimony by individual class members would have illustrated the unreasonableness of collective recovery, he was asked why his team had not called such witnesses, as they had originally planned to do.

(It was in the very closing days of the trial that the list of 60 witnesses was pulled from the list, a decision which was referenced in the "abuse of process" claim that the plaintiffs were not permitted to argue at the end of the trial. See page 567 and later in their Notes and Authorities).

Justice Kasirer asked him if it  would "not have been prudent [to call these witnesses in order] to shake the confidence of the judge in the uniformity of the group – to say 'look at the differences.'' 
It's not up to defendant to disprove a case that has not been made, Mr. Jamal responded. "These sorts of strategic choices are made."

Tomorrow Mr. Jamal will turn his focus to what he described as a "witches brew" of faults against varying Quebec statutes for which his clients were found liable.

This post has been back-dated to provide consistency in indexing