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Topic: Liability

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Quebec Class Action Appeal [Canada] [March 01, 2019]

Quebec residents filed two separate class action lawsuits against the Canadian tobacco companies of British American Tobacco ("BAT"), Philip Morris International ("PMI"), and Japan Tobacco International ("JTI") ("tobacco companies"). The first class involved Quebec residents who had lung cancer, throat cancer, or emphysema. The second class involved Quebec residents addicted to nicotine. The court found that the tobacco companies caused injury, failed to inform customers of the risks and dangers of its products, and violated Quebec law.

On March 1, 2019, the Quebec Court of Appeals ("the Court") unanimously upheld the lower Quebec Superior Court decision and found that the tobacco companies intentionally misled consumers about the dangers associated with their products for more than 50 years. The Court upheld the lower court's decision, but made technical corrections, that the appellants pay moral damages to members of the Blais action, as well as punitive damages to both classes, with interest and the additional indemnity provided by law. The appellants’ liability was based on private law of general application (Civil Code of Lower Canada and Civil Code of Quebec ), the Tobacco-related Damages and Health Care Costs Recovery Act, the Charter of Human Rights and Freedoms and the Consumer Protection Act.

All three tobacco companies have indicated that they will likely appeal the decision to the Supreme Court of Canada.

For the earlier decision, see: JTI, et al. v. Letourneau, et al., No 500-06-000076-980 and No 500-06-000070-983, (Quebec 2015).

Dutch Youth Smoking Prevention Foundation, Van Veen, Breed v. PMI, BAT, JTI, IT [Netherlands] [December 06, 2018]

Anne Marie van Veen and Lia Breed, two patients who suffer from lung cancer and respiratory disease, and the Dutch Youth Smoking Prevention Foundation filed a complaint in 2016 with the Dutch public prosecutor’s office against tobacco makers Philip Morris International Inc., British American Tobacco Plc, Japan Tobacco International and Imperial Tobacco Beneluin. The complaint alleged that the tobacco manufacturers are, in short, guilty of attempted manslaughter and/or murder, attempted severe and premeditated assault and/or attempted premeditated harm to health with intent.  It also alleged that tobacco companies used deliberately misleading laboratory tests to gauge levels of tar, nicotine and carbon monoxide. The complaint described that the tobacco companies were liable because of “the large-scale, decades-long and ongoing production and sale of addictive tobacco products in the Netherlands.” The Dutch public prosecutor’s office declined to pursue a case against tobacco makers finding that "[a] successful prosecution of the tobacco manufacturers -- one resulting in a conviction -- is not possible within the current regulations and parameters."

The Appellate Court upheld the Dutch public prosecutor's decision. The Appellate Court found that "the cigarettes of the tobacco producers are made and tested according to stringent Dutch and European laws and regulations. As long as the tobacco producers comply with these European and national rules, the Member States (and therefore also the Netherlands) must not prohibit the trade in cigarettes according to the same European rules. The (European) regulator can only decide overriding measures against tobacco producers."

Imperial Tobacco Canada v. Attorney General of Quebec [Canada] [September 28, 2015]

Tobacco companies challenged the constitutionality of the Tobacco-Related Damages and Health Care Costs Recovery Act, which allows the government to sue tobacco manufacturers to recover the health care costs for individuals with tobacco-related illnesses. The Appeals Court of Quebec upheld the constitutionality of the law and dismissed the tobacco company’s appeal. The court relied, in part, on a decision from British Columbia upholding a similar law. The court found that the Quebec law did not violate the independence of the judiciary nor did it violate the tobacco companies' right to a fair trial.

Quebec Class Action [Canada] [May 27, 2015]

Two class action lawsuits were filed in Canada in 1998 against major tobacco companies; the cases were later combined. One class (Blais) involved Quebec residents with lung cancer, throat cancer, or emphysema. The other class (Letourneau) involved Quebec residents addicted to nicotine. After a lengthy trial, the court found that the tobacco companies caused injury, failed to inform customers of the risks and dangers of its products, and violated Quebec law.

In the Blais case, the court awarded moral damages (e.g., for pain and suffering) of $15.5 billion, to be paid jointly by the three tobacco companies. In the Letourneau case, although the court found that the tobacco companies were at fault, it did not award moral damages because there was not enough evidence to determine the total amount of the class members’ claims. In both cases the court awarded punitive damages, which it calculated based on one year of before-tax profits for each tobacco company. In Blais, the court reduced this award to the symbolic amount of $30,000 for each defendant, representing one dollar for each death the tobacco industry causes in Canada each year. In Letourneau, the court awarded punitive damages of $131 million. The tobacco companies must make an initial deposit on the judgment of $1 billion while the appeal is pending.

Philip Morris USA v. Russo [United States] [April 02, 2015]

This lawsuit was filed by an individual alleging that smoking caused her to develop chronic obstructive pulmonary disease (COPD). The lawsuit arises from a 1994 class-action lawsuit on behalf of Florida smokers against major tobacco companies (Engle v. Liggett Group, Inc.). In this decision, the court affirmed an earlier ruling allowing the plaintiff’s fraud claims to continue. The court found that the fraud claims were filed within the appropriate amount of time because the earlier class action lawsuit in Engle had proven that the major tobacco companies fraudulently concealed information about the health risks of smoking. 

Hess v. Philip Morris USA [United States] [April 02, 2015]

This lawsuit was filed by the family of an individual who died from a smoking-related illness; it arises from a 1994 class-action lawsuit on behalf of Florida smokers against major tobacco companies (Engle v. Liggett Group, Inc.). In this decision, the court allowed the plaintiff’s fraud claim against Philip Morris to continue. The court found that the earlier class action lawsuit in Engle had proven that the major tobacco companies fraudulently concealed information about the health risks of smoking within the time frame necessary for determining the fraud claim. The court found that it was not necessary to also show that the smoker relied on those fraudulent claims during the relevant period for such claims to move forward.  

Coppinger v. Gray [United States] [March 02, 2015]

A homeowner sued his neighbor for exposure to secondhand smoke drifting into his house. The court granted a preliminary injunction ordering the neighbor not to smoke any substances, including tobacco and marijuana, on the premises. Additionally, the neighbor must ensure that no guests smoke and must ask anyone who violates the order prohibiting smoking to leave the property. The order was to stay in place until it was revoked or until the court reached a final decision in the case. Ultimately, the case was dismissed after the party who initiated the suit dropped its claim.

Maclean and District Bowling Club Co-operative v. Green [Australia] [August 14, 2014]

The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.

The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.

In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.

Caronia et al. v. Philip Morris USA, Inc. [United States] [December 17, 2013]

Plaintiffs, current and/or former smokers with histories of 20 pack-years or more and who aren’t yet sick, brought a class action suit against Philip Morris USA requesting a court-supervised medical monitoring program funded by the tobacco manufacturer to assist in the early detection of lung cancer. Plaintiffs’ claims based on negligence, strict liability, and breach of implied warranty were previously dismissed.  The state’s highest court held that there is no independent equitable cause of action for medical monitoring under New York state law.  The court cited the well-established rule that a plaintiff must sustain a physical injury before he or she is able to recover “reasonably anticipated” consequential damages.  The court reasoned that it is “speculative, at best, whether asymptomatic plaintiffs will ever contract a disease.”  The threat of future harm alone is insufficient to impose tort liability in this context. 

The court also cited several policy reasons behind its decision, including the potential for a flood of frivolous claims and the difficulty in implementing and administering a medical surveillance program. 

Walker v. R. J. Reynolds Tobacco Company [United States] [October 31, 2013]

An appeals court upheld judgments in favor of two smokers who sued R.J. Reynolds Tobacco Company (RJR) for injuries caused by smoking. The court found that RJR had not been deprived of its right to due process when two juries awarded money damages to the survivors of two smokers. The appeals court found that RJR had a full and fair opportunity to be heard in an earlier class action lawsuit against major tobacco companies (Engle v. Liggett Group, Inc.) and that it was permissible to apply the findings from this class-action regarding tobacco companies’ liability in later lawsuits. Therefore, the court ruled that individuals in later lawsuits need only prove causation and damages specific to their case. They do not have to retry the issue of whether tobacco companies are liable on issues such as misrepresenting the health effects of smoking and producing a defective product.