[Intl-tobacco] Canada: Class-action lawsuit against cigarette companies thrown out of court

[rob@essential.org]

February 5, 2004

Class-action lawsuit against cigarette companies thrown out of court

Tara Brautigam
Canadian Press

http://www.940news.com/news/news.cfm?dir=national&file=n0205107A&n=1

Toronto - A mammoth class-action lawsuit against Canada's three major
tobacco companies was thrown out of court Thursday, because it would have
taken "1,000 years of litigation" to resolve, a judge said. After nine
years of legal wrangling, Superior Court Justice Warren Winkler ruled that
the multimillion-dollar suit, which could have become the largest lawsuit in
Canadian history if allowed, was too broad and did not meet the requirements
for certification.

"In essence, the plaintiffs seek certification of an amorphous group of
people comprised of individuals of different ages, covering different
decades, who knew different things concerning the risks inherent in smoking
and who began to smoke for different reasons," Winkler wrote in a 22-page
decision. "The only apparent common element in this action is that all of
the proposed class members allegedly smoked cigarettes at one time or
another."

Winkler added that even if Rothmans, Benson & Hedges, Imperial Tobacco
Canada and JTI-Macdonald were to fight only some of the claims made against
them, "simple mathematics indicate that such a process would require the
equivalent of 1,000 years of litigation." Tobacco industry representatives
and defence lawyers lauded the decision, saying the tobacco industry is
already regulated heavily. "We manufacture a legal product. We're very,
very regulated," said John Wildgust, spokesman for JTI-Macdonald. "I'm very
pleased with the result," added Lyndon Barnes, who represented Imperial
Tobacco Canada.

David Caputo, Luna Roth, Lori Cawardine and Russell Hyduk launched the
lawsuit in 1995, but numerous procedural delays prevented it from going
ahead. Hyduk died last year but his estate trustee continued with the case.
The four smokers alleged the tobacco companies conspired to hide the health
risks of smoking and the addictive nature of tobacco in order to boost
cigarette sales.

Up until 1972, the companies gave no warnings to consumers about the
likelihood of cigarettes causing cancer and other life-threatening diseases,
the plaintiffs said. They were seeking $1 million each in damages, as well
as funding for nicotine addiction rehabilitation centres. If approved,
every past and present smoker in Ontario would have been automatically
included in the suit.

"This is a major setback for public health," said Garfield Mahood, executive
director for the Non-Smokers' Rights Association. "With this decision
there's the distinct possibility this industry may never be held responsible
for corporate misconduct."

But lawyers for the tobacco companies argued that despite the reams of
paperwork submitted, the plaintiffs didn't file enough evidence of a
conspiracy to warrant certifying the suit. And during the proceedings last
month, defence lawyers criticized the plaintiffs' case for lumping all
smokers together, and hinted any actions against the tobacco industry would
be more suitable on an individual basis.

"You cannot make a one-size fits all rule for anyone, whether they've been a
two-pack-a-day smoker, or they're an occasional smoker, or they quit 20
years in ago," Christina Dona, spokeswoman for Imperial Tobacco Canada, said
from Montreal. Dona said Winkler's decision follows a global trend of
dismissing massive class-action suits against the tobacco industry,
particularly in the United States, due to their unwieldy nature. "It
creates too much pressure on the court system. . . . Whether it's smoking or
consuming alcohol or fattening food, each individual case merits attention."

The certification hearing last month was a colossal endeavour, involving
dozens of lawyers, clerks and assistants toiling for more than one week,
surrounded by boxes of files head-high. Lawyers on both sides were buried
beneath reams of paperwork, while nearby assistants tapped incessantly on
laptops. Winkler, who presided over the multibillion-dollar Bre-X stock
fraud scandal in 1998 and is among the most experienced judges in class
actions, said that even individual suits against the tobacco industry would
be unmanageable and too costly for most. "An individual attempting to
pursue litigation would likely find his or her resources taxed beyond
sustainable limits," he wrote.

But Rob Cunningham, a lawyer for the Canadian Cancer Society, said Winkler's
ruling may mean a flurry of lawsuits that would take up even more court
time. "It's going to take even longer if there's no class action. Every
smoker who's suffered cancer or heart disease or emphysema, every death -
the total trial time would be far longer if there's no class-action."

In their statement of defence, the companies maintained that the evidence
against them was largely opinion-based and that health risks associated with
smoking have been well-publicized for half a century in Canada. The
companies also accused the plaintiffs of using the courts to stage the
equivalent of a public inquiry into the tobacco industry. Andreas Seibert,
a lawyer for the plaintiffs, said they will be appealing the decision.