From Dysfonction érectile- Tobacco Info No. 10 - August 2012
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Quebec’s $27B lawsuit opens floodgates of tobacco industry documents

The Blais and Létourneau lawsuits against Big Tobacco were launched in 1998

By Geoffrey Lansdell

A $27 billion class action lawsuit against the tobacco industry opened on March 12 at the Quebec Superior Court in Montreal. It is the first class action in Canada against the tobacco industry to go to trial and the largest lawsuit in Canadian history.

Justice Brian Riordan is presiding over the case, which is an amalgamation of two major class actions against Canada’s three tobacco industry giants: Imperial Tobacco Canada (ITC); Rothmans, Benson & Hedges; and JTI-Macdonald.

The first case was filed on September 10, 1998, by the law firm Trudel & Johnston, with Cécilia Létourneau as case representative. Their claim against the tobacco industry is an addiction class action suit on behalf of Quebec smokers considered clinically addicted to nicotine — estimated to be 1.78 million people. The Létourneau case seeks $5,000 in compensatory damages and an additional $5,000 in punitive damages for each smoker. Overall, the case is seeking $17.8 billion.

The second case, filed on November 19, 1998, is a cancer and emphysema class action in which the plaintiffs — the Quebec Council on Tobacco and Health and Jean-Yves Blais — are seeking $100,000 in compensatory damages and $5,000 in punitive damages for each smoker and ex-smoker in Quebec who has suffered from cancer of the lung, larynx, or throat, or emphysema. Overall, the Blais case is seeking $9.45 billion in damages for the estimated 90,000 people afflicted by these smoking-related diseases.

The library of internal industry documents the trial is bringing to light is of central importance to this precedent-setting court case. As each ITC witness stands trial, the plaintiffs’ lawyers enter multiple documents into evidence that politicians and the public have never seen before. To date, more than 800 documents have been filed.

Collectively, the secret documents reveal how long the industry has known about the addictiveness and health risks of their products and the various ways they have lied to the public, concealed their own scientific studies proving the carcinogenic and addictive nature of cigarettes, created ‘light’ and ‘mild’ cigarettes that were no less harmful than regular cigarettes, and crafted a denialist rhetoric designed to confuse the public and minimize government regulation.

“The documents are key elements for de-normalizing the industry and showing the public who they really are,” says François Damphousse, director of the Quebec office of the Non-Smokers’ Rights Association. “They have been working outside the law by stating publicly their products are safe, while these documents prove they knew their products were addictive and carcinogenic; and the fact that these documents reaffirm what tobacco control groups have been saying for years should raise an alarm for legislators who are responsible for protecting the public.”

Where things get really interesting — and potentially messy — is that the plaintiff’s side of the courtroom includes attorneys from the Federal Government of Canada. In both class actions, the federal government has been named a defendant in warranty, which is similar to being a third-party defendant in provinces outside Quebec.

In essence, this means that if the tobacco industry is found guilty, they will turn around and point the finger at the government in order to recover money in damages awarded to the plaintiffs on the grounds that the government knew just as much about the health risks of smoking, and did just as little as the industry to protect consumers.

The federal government’s role

When the tobacco companies filed Actions in Warranty against the federal government in 2008, the government negotiated a role in which they would assist the plaintiffs. In return, the plaintiffs agreed to release the government “from any and all manner of claims by the class members.”

But on September 21, 2011, Justice Riordan ruled that this agreement was not in the interests of the class members due to the financial magnitude of the case. Because the lawsuit is worth $27 billion, a guilty verdict has the potential to bankrupt the three tobacco companies. If that happens and the government is no longer a defendant in warranty, the claimants would have no recourse to seek claims from the government.

According to Cynthia Callard, who is writing a daily blog about the trial, the potential outcome of bankrupting the tobacco industry in Canada begs a vital socio-political question.

“What do we do if we have a bankrupt tobacco industry? Do we just say, ‘OK folks, another company can come and settle in?’ Or do we say ‘OK, now’s the opportunity to do things differently?’ Nobody’s really talking about it yet because it’s four or five years down the road, but this case already is a game changer; we just don’t know the extent to which it will change the landscape.”

As for the trial itself, the government has played a very minor role to this point. The plaintiffs have been calling the witnesses, and will continue to do so until February 2013. So far, the witnesses have primarily been former Imperial Tobacco employees, including Michel Descôteaux (director of Public Affairs and spokesperson during the 1980s and 1990s); Roger Ackman (Imperial Tobacco’s top in-house lawyer from 1972 to 1999); Jean-Louis Mercier (president during the 1980s); and Anthony Kalhok (vice-president of marketing from the mid 1960s to the mid 1980s).

The tobacco industry’s secret documents

While the evidence continues to roll in, we have already learned from Roger Ackman’s testimony that he contributed to the destruction of internal documents in 1992. In response to plaintiff lawyer Bruce Johnston’s question about whether he was aware of a prohibition on counsel against aiding in the suppression of evidence, Ackman replied, “No, sir.”

Unfortunately for Imperial Tobacco, originals of the destroyed documents have been recovered and entered into evidence.

In a letter written by Imperial’s former head of Marketing Research and Development Bob Bexon as part of “Project Viking,” which took place in 1986 and 1987, Bexon admits the only thing keeping tobacco companies in business is the addictiveness of cigarettes.

“The only remaining ‘benefit’ of cigarette smoking is the psychological assist it provides in terms of stress reduction,” Bexon writes in the confidential memo. “If our product was not addictive we would not sell a cigarette next week in spite of these positive psychological attributes.”

Bexon’s ten-page, hand-written memo was sent as an update to senior management on “Project Viking,” which served to evaluate smokers’ health concerns.

“The crux of the problem is personal health,” Bexon writes. “Social unacceptability, passive smoking effects, price, aroma, after effects are all distant seconds to the key smoker’s concern that they are damaging their health — contributing to their own death.”

“Death is not the entire problem,” Bexon continues. “The key health issue is lung cancer. Fear of cancer as much as fear of mortality with its public perception of slow lingering painful etc. (sic) is a real problem.”

This document, acknowledging as it does that smoking is both addictive and causes lung cancer, strikes a major blow to Imperial Tobacco.

All three tobacco companies on trial had publicly denied that smoking was addictive and dangerous until June 9, 2000, when Imperial Tobacco and JTI-Macdonald shocked a Senate Committee that proposed raising taxes on cigarettes by agreeing to the tax hike and admitting the products they manufacture are addictive and carcinogenic.

For the first time, Bexon’s letter has provided lawyers, politicians, and the public with explicit proof that Imperial Tobacco knew the truth about their products for well over a decade before coming clean.

The question remains: How long has Big Tobacco been lying about its knowledge of the harms caused by cigarettes?

Less than three months into a complex trial that will last at least two years before a verdict is rendered, there are still hundreds of internal documents to come and dozens of witnesses from all three tobacco companies scheduled to take the stand.