Plaintiff Daniel C. Charest smokes a cigarette outside the Montreal courthouse, Monday, March 12, 2012, on the opening day of a massive lawsuit against the tobacco industry.Graham Hughes/The Canadian Press
The federal health department's lack of knowledge related to the dangers of tobacco smoking – as late as 1988 – helped persuade a Quebec judge the tobacco industry knew the public was not fully informed. The judge's $15.6-billion award this week to one million cigarette smokers and their heirs in a class-action lawsuit against three tobacco companies suggests the challenges ahead for the industry in similar cases from smokers and provincial governments already in preliminary stages across the country.
What was the key issue in the lawsuit?
Whether the tobacco companies trivialized or denied the risks and dangers of smoking and conspired to impede smokers from learning the true risks.
Weren't the smokers in the Quebec class-action lawsuit aware of the dangers of smoking?
The period covered by the lawsuit began in 1950 and stretched to 1998. Knowledge of smoking's dangers was far from universal, especially early on, according to the testimony of polling expert Christian Bourque. A survey called the Canadian Tobacco Market at a Glance found that, when asked if "smoking is dangerous for anyone," 48 per cent said yes in 1971, and 79 per cent said yes in 1991.
What did the tobacco companies argue in their defence?
Three experts hired by the tobacco companies said the dangers to health were part of Quebeckers' common knowledge in the 1950s or 1960s. The source of the public's awareness is irrelevant, the companies said. What matters is that people know the risks. The duty to warn does not mean a duty to persuade.
What did the court find?
The companies "very well knew" the public had not been sufficiently warned. In 1958, a Rothmans tobacco executive publicly admitted the dangers of smoking, and said privately the companies were in a "rat race of deceit." Later, Rothmans adopted a policy of silence. Superior Court Justice Brian Riordan cited an internal tobacco-industry memo on a 1977 meeting between Health Canada and the companies. "They were actually looking to us for help and guidance as to where they should go next," a tobacco executive wrote. "They want to be seen to be doing the right thing. ... However, it appears they simply do not have the funds to tackle the problem in a proper scientific manner." The judge commented: "It is telling. . . that Health Canada did not see the need to impose starker warnings until 1988." One company asserted into the 1990s that there was "scientific controversy."
How did the judge set the damages?
The court awarded "moral" damages (for harm caused by wrongful conduct) and "punitive" damages (to set an example), but not compensation for lost income due to illness. Moral damages for those with lung and throat cancer were $100,000 per person; for those with emphysema, $30,000. Nearly 100,000 people in the lawsuit had one of those diseases, so the total came to $6.8-billion. With interest, plus $800-million in punitive damages, some of it payable to nearly one million addicted smokers who did not develop a serious disease, the total reached $15.6-billion. Imperial Tobacco had to pay more than Rothmans, Benson & Hedges and JTI-Macdonald partly because of "bad-faith efforts to block court discovery of research reports" by sending them to outside counsel, who eventually destroyed them, the judge said.
Why did the judge award punitive damages?
To send a message: "The companies earned billions of dollars at the expense of the lungs, the throats and the general well-being of their customers. If the companies are allowed to walk away unscathed now, what would be the message to other industries that today or tomorrow find themselves in a similar moral conflict?"
What does the ruling mean for future lawsuits?
"There's a tremendous amount of testimony and cross-examination that's useful to give a road map in other cases," Rob Cunningham, a spokesman for the Canadian Cancer Society, said in an interview. Every provincial government is suing the tobacco industry, including foreign-based parent companies, which have deeper pockets. Ontario's suit is for $50-billion, and Quebec's is $60-billion. Several class-actions are not yet certified in other provinces. A manufacturer's duty to warn of health risks is similar under Quebec's civil code and the common law followed in the rest of Canada, Justice Riordan said in his ruling.
Sean Fine