Thursday, 23 October 2014

Day 246: General findings of fault, maybe. Specific injuries unproven.

Today Mr. Guy Pratte completed his four-day presentation of the final arguments for his client, JTI-Macdonald. It was a fast-paced day.

His focus today was on the methods that had been used to count the number of smokers whose disease could be attributed to tobacco use,  proposals to identify smokers who are addicted. And, in case all of his arguments over the week had not hit home and Justice Riordan did not dismiss the claims against his company, he also challenged the plaintiffs' proposals for the amount that should be paid, and how it should be disbursed.

"You can't reduce all individuals to one single number"

From a public health perspective, the approach taken by the plaintiffs to assess the number of smokers whose lung cancer and other diseases are related to smoking is fairly straightforward. They asked epidemiologist Jack Siemiatcyki to calculate the number of cigarettes that would have to be smoked before it was more likely than not that tobacco was the cause of any individual's disease. The cut-off point he calculated of 36,500 cigarettes, or 5 pack years, was subsequently built into the revised class definition.

From the way Mr. Pratte presented it, this approach is not standard from a legal point of view -- although he acknowledges that the Quebec government passed a law which specifically allowed for statistical methods to be applied in this case and its own suit. (The companies are trying to defeat this law through a constitutional challenge. So far, they haven't been successful.)

Mr. Pratte has hammered home the many legal reasons he thinks this approach is flawed -- chief among which seems to be that it lets the plaintiffs sidestep the job of showing the connection between any individual's disease and any actions of the company.  "It's true that statistics and epidemiology have been used in courts before - but never has it been deployed in courts to establish specific causation."

He repeated his concern that people, like himself, who had quit smoking more than 30 years earlier had a much lower risk profile, but would still be considered eligible for damages if they came down with lung cancer.

He reiterated the long list of criticisms that were levelled by himself (in cross-examination) and by the defendant companies' statistical experts, Mssrs. Mundt and Marais. (He made no reference to the other defence statistician, Mr. Price.)  

The result, he said, was that Mr. Siemiatycki's results were not reliable enough to hang a decision on. "If one proposes a method which fails the measures that statistics has evolved to ensure reliability, it can't be used by this court - regardless of what section 15 says." 

He took care to distinguish between his criticism of Mr. Siemiatycki's conclusions and his respect for Mr. Siemiatycki,

No way around individual trials

He explained to Justice Riordan why these problems could not be fixed by setting a higher critical amount, or by averaging an award across a population.

"You can't just move the dial." Increasing the threshold of years smoked would mean that some people would improperly be left out of the class. (Justice Riordan smiled as he asked him whether this was something he needed to worry about, and used it as an occasion to remind Mr. Pratte that the companies had refused to provide their own estimation of how much Quebec disease resulted from smoking.)

Mr. Pratte said that although lung cancer might be responsible for 80% of disease, the Supreme Court would consider it wrong to give each lung cancer victim 80% of a damage award. By the number of times he referred to it, a ruling about the slander of immigrant taxi-drivers by a right-wing radio host (Bou Malhab) is a key plank in Mr. Pratte's defence.

Anyone can quit. 
The plaintiffs proposal for nicotine addiction to be defined by daily smoking over a period of time was also accepted by Justice Riordan as a way to define eligibility for the Létourneau addiction class.

The class definition arrived at does not require a medical diagnosis of addiction, but it does require that someone be a smoker on at least three occasions separated by a decade. (Have smoked before 1994, be a daily smoker on September 1998 and be a smoker on February 2005). The plaintiffs calculate that about 900,000 of Quebec's 1.6 million smokers would be qualify (i.e. 52%).

Mr. Pratte rejected this or any other self-assessment tool as a way of measuring addiction. "It cannot be that addiction or dependence is ascertained simply by self-reports of 'I can't quit or by a mechanical 3 or 4 year rule," he objected.

Instead, he proposes that the measure of addiction be established through individual assessments under the DSM tools for tobacco use disorder. It was this approach, he said, that was used in clinical settings by the psychiatrists who had testified (both Dr. Negrete and Dr. Bourget).

It was not true, he said, that anyone who was addicted to cigarettes was not able to quit. He cited Health Canada's advice to smokers that "with the right combination of practice, determination and support, you will be able to stop smoking for good" as support for his view that it came down to a question of willpower. "There is a huge voluntary element in that."

The Quantum? Not much.

During the short afternoon session, Mr. Pratte turned to the issues of how much money might be assessed against the companies should Justice Riordan arrive at this point in a judgement.

While the plaintiffs have calculated the compensation on a per-capita basis, they are asking for it to be levied against the companies as a lump sum -- a collective recovery of damages assessed on an aggregate basis.

Given his insistence that the impact of his company would vary among different individuals, it was not surprising that Mr. Pratte opposes collective recovery. "The damages sought against JTIM are wildly exaggerated for a host of reasons, principally that there is no way for you to arrive at a number of total class members in either class about which you can be sufficiently certain that it is accurate."

The Conclusion: "It just won't write"

Mr. Pratte's prefaced his closing comments by referring to the Chief Justice of Canada's Supreme Court, who said that sometimes decisions got changed during the process of writing a ruling. The judges were "leaning a particular way and when they sit down to write the reasons, they found that it 'it just won't write.'"

He said that even if the judge wanted to find the companies guilty, he would not find a lawful way to do so.  "I don't know which way you are leaning, but based on the law you cannot get to the result [the plaintiffs] are urging on you." 

He identified the roadblocks to such a decision: the absence of a risk/utility doctrine in Quebec, the failure "to connect any fault to a harm on a class member", the historical context in which actions would have to be judged.

He recommended that Justice Riordan follow the path of the Florida Appeal court when it broke-apart the Engle class action into individual trials. "You could make general findings" about the dangerous or addictive nature of cigarettes, or about specific faults at specific times. These "could be used in individual trials by those who could prove injury."

This, he said was "the farthest you could go by respecting the law and the facts here."

Exhausting? Yes. Convincing? ....

As Mr. Pratte finished, Justice Riordan acknowledged the physical and mental energy that would have been required to stand for four days and summarize 1,000 pages of argument. "You must be exhausted."  

If so, Mr. Pratte did not show it. His stamina is to be envied - I was only an onlooker, and my brain was fried.

The finishing line just got closer

I have been wondering this week how Imperial Tobacco could fill the 8 days it had scheduled without risking irritating repetitions of what has been said by the other two companies.

Ms. Suzanne Côté rose at the end of the day to say that the company would need only half the time originally scheduled. The details of the abridged schedule are to be worked out.

The trial will resume on November 12th, when the final arguments for Imperial Tobacco will be presented. 

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