 Welcome. Welcome everyone. Welcome to the last speaker series seminar for this academic year for the Health Law Institute. It gives me great pleasure and I should say that I am an associate professor in the faculty of medicine as well as a cross-courtage to the law school and the new director of the Health Law Institute. My name is Matthew Ritter for those of you who might have had a chance to meet yet. So it gives me great pleasure to introduce our final speaker in the 2016-2017 academic year Health Law Institute seminar series and that is Camille Cameron, the Dean of the Schulich School of Law. Dean Cameron brings a rich set of national and international experiences to her work at Schulich's Dean, her teaching and indeed her scholarly research. She was prior to arriving at Dalhousie the Dean of Windsor Law at the University of Windsor and a professor at the University of Melbourne in Australia and the University in Hong Kong. Her work throughout has been characterized by a commitment to civil justice using her training as a litigator and graduate studies at Cambridge University for example to engage in a variety of capacity-building projects in several post-conflict countries in Southeast Asia. While the scope of her work and her experience is global I imagine that what she's going to talk to us about today stems equally from her local experience as a litigator in private practice right here in Nova Scotia where she began her career. I think the focus on litigation and class actions as regulatory tools is timely and important particularly for those of us who regularly attend the seminar who are engaged in such an interdisciplinary interdisciplinary field as Health Law and Policy where we are perhaps as much interested in how the law is understood and created by a variety of actors outside of the law as much as what the law says on the books. So it's nice to have someone it's important to have someone perhaps talk about law in its more classic form in court in the context of litigation and that that kind of context continues to have a powerful role in shaping Health Law and Policy and improving social outcomes. So please join me in welcoming Dean Cameron. Thanks very much Matthew. I'm going to begin by saying that I have some version of a cold slash flu so you'll just excuse the a bit of croaking or sniffling. I thought it was better to come and deliver with those handicaps rather than not come at all. What I will do is present I'll go through my presentation and I think we'll save questions and discussions for the end if that suits everyone. So today's presentation is called litigation as regulation a tobacco class action case study. Now a title rarely remains intact from the time the promise is made some months earlier to the time you actually do the presentation but I've decided I'm reasonably satisfied with the title satisfied enough that I guess I won't mess with it or change it. I do however want to make a few comments about it. First the question mark is there for a reason because the question of the value of litigation to achieve regulatory aims in a public health context or in almost any other context for that matter is indeed a real question with strong arguments on all sides and how we answer the question will depend on various things one of which is how we define regulation. As I did reflect on the theme of the presentation I thought I might have substituted policy making for regulation but I think it's good as it is for now. So the second part of the title is a tobacco class action case study. Some at least of you will know that there is some significant litigation going on in Quebec now some substantial class action litigation against big tobacco. I should say here that any litigation that takes place with tobacco companies is substantial you can't call it anything else and perhaps substantial doesn't even capture it substantial because they have pockets that are deeper than deep. I will talk about that Quebec class action a little later but I'll also talk about the large amount of American tobacco litigation that preceded it. Tobacco litigation is international not national it's an international global story. The Canadian litigation is another development in the international tobacco litigation story or stated another way the Quebec class actions are unfolding in a way that has been shaped by that litigation that preceded it those three waves of American tobacco litigation. Much of the discussion and debate about the role of tobacco litigation as regulation has happened has developed in the context of that American litigation and so starting there making that a starting point really does make sense. What are some other reasons why one would choose to make this presentation or perhaps why I happen to be interested in it? Well of course first the Quebec class action it's going on in our country it draws attention to some of the issues that exist around tobacco control. That Quebec class action opens up again the broad issues regarding tobacco regulation and control and the role of litigation as a tobacco regulation strategy or as a component of such a strategy. I say again because beginning in the 1950s and running until the late 1990s there were three very intense waves of tobacco litigation in the United States and with that litigation the debate that I just referred to by academics and by public health advocates about the utility of litigation in that tobacco control story. Another reason for this particular topic is my own interest and not just in tobacco regulation and control but also in the utility and the effectiveness of adversarial litigation especially given the stunning power imbalances that can exist in adversarial litigation and the impact they can have on outcomes. Yet another reason related to the previous one is the way tobacco companies litigate. A deep pocket scorched earth take no prisoners approach to litigation. One view is that they expose the worst of the adversarial system but that's not a view to which everyone would agree with which everyone would agree. We'll come back to this if we have time. The point here is that if you're a student of the litigation process if you take interest in it you'll probably find it difficult to avoid reading thinking and talking about tobacco litigation and tobacco class actions as well as other types of tobacco litigation. While I'm listing the reasons for this presentation or why I find the topic interesting I'll mention one more. It's the Australian case of McCabe versus British American tobacco. What a gift that case was to a student of the litigation process and one who is interested in exploring the power imbalances that exist in adversarial litigation and how they play out. How the litigation process can be commandeered by deep pockets. I say a gift but of course this was not a happy story. Tobacco litigation it's never a happy story. The plaintiff in that case Roland McCabe was in her early 50s when she commenced the proceeding. This was not a class action. It was an individual claim. She had begun smoking in her early teens. I think she was around 13 or 14 when she started smoking. She was addicted and she was very sick. She died before the case finished as often happens in these cases. One of the reasons being of course the sickness of the person. Another being is that they take so very very long to go from beginning to end. As with much of tobacco litigation you'll see this when I talk about the three waves. She won a trial but the decision was overturned on appeal. Not withstanding that there was success at trial but that the trial decision was overturned on appeal and lead to appeal to the High Court of Australia was denied. High Court of Australia being there. Supreme Court of Canada, the Court of Last Resort. That case did have a significant influence on the national and international discourse about tobacco litigation, tobacco control and the conduct of tobacco companies. This is a theme we will return to. That not withstanding a negative outcome for a plaintiff in a tobacco litigation case at the appellate level, that case might still have some regulatory and policy utility or significance. Those of you, some of you I know will have read the Lynn Mayther article and we'll talk about some of the things she says but that's the point she makes. That if we're just going to assess the efficacy of tobacco litigation by looking at appellate decisions and whether there's a win or a loss, we're missing a significant part of the contribution that tobacco litigation can make to the overall control of tobacco. In the Australian case, one of the aspects I was most interested in and I wrote about had to do with a tobacco company policy which they called a document retention policy. The purpose of that document retention policy was to have a systematic way of destroying documents. The name therefore was quite interesting. I focused in some of my writing on the ethics of the lawyers who had become involved in advising the company on that document retention policy which of course the title was a misnomer. Mayther observes that as damaging evidence against the tobacco industry grew, the industry increasing relied on lawyers. There came a time when the industry's research documents were all being funneled through their lawyers to attract solicitor client privilege. So there's some introductory comments. I'll now move on and I'll proceed as follows. First of all, I'll give just a brief explanation of class actions, what they are especially for the non-lawyers in the room. Then I'll describe the three US waves of litigation. I'm going to then look at and analyze the debates as those waves of litigation were unfolding and afterwards about the efficacy of the litigation as a tobacco control strategy. I'll then briefly explain the Quebec class action litigation and consider it in the context of that previous landscape that we've just developed. And time permitting, I'll make some preliminary general comments about the connections between the nature of a regulatory state, what kind of a regulatory state we're talking about because there are different types and the role that litigation might or should play as a regulatory tool in that state. All right. So first of all, a little bit about class actions. This is just going to be sort of class actions one on one. Most of us, I think all of us are customers of a bank. Imagine now that everyone in this room has had inappropriate or unjustified charges imposed by their banks. I mean, that could never happen, of course, but just imagine that it might have happened. I'm really asking you to stretch your imaginations. So imagine that yours is $235. That's what it amounts to and yours is $147 and yours is $23. And someone up here has a small company. So theirs is bigger. There's $3,470. Everyone in this room has had those charges. Who among us will sue? Will the person with the $23 charge commence a proceeding against her bank or the person with the $147 charge? What about the person with the $3,000 charge? Or all of the other people in the community because if we in the room have this issue, then of course you know that in the broader community there are more people with the very same issue. The answer is no. Why wouldn't you? Because it is economically inefficient. The cost of litigation would far exceed the amount of any one of these claims. Unless you are fabulously wealthy and have a lot of time on your hands, you will not bother suing. You might just lump it. Take your lumps. Yeah, they did it. That's banks. Or you might exit, as they say in the literature. Yeah, leave that bank and go to another one. There's various things you might do, but it's very unlikely that you will sue. You might switch to some other type of dispute resolution. But if we can all proceed in one action as a class of people with similar claims, things change. Why? Because now the group proceeding is much more economically viable. The damages to be received will indeed be much greater than the cost of litigation. Thus there is an incentive for lawyers to assume the risk. And one of the things that sometimes I think is lost about class actions. Very often we hear about the greedy lawyers who are getting huge amount of money, and sometimes that happens. But if you look at how class action regimes have developed in jurisdictions from start to grow, if it weren't for risk taking lawyers, taking a chance and growing the legislation and growing the regime, it would not be nearly as effective as it is. Now depending on which side of the class action you're on, you might think that's a good thing or a bad thing. So just a few characteristics of the typical common law class action. I'm generalizing a bit here just to give you the picture. First of all there has to be a class with similar claims. For example all those bank customers who between this date and this date had penalty charges levied when those charges were not permitted by law to be levied, or something like that. You have to define your class. And that is a vital early step in a class action. Then you need to have a representative lead plaintive. Even though there might be 20,000 people in the class, the case will appear, for example, if I'm the lead, plaintive as Cameron versus the ex-bank of whatever. In most common law jurisdictions, but not all, the case has to be certified, which means at some early stage, after you've taken some preliminary steps, the court basically gives its approval, its imprimatur, that this case can proceed as a class action. Then assuming it is certified it will either settle or go to trial. Note that in civil litigation most cases settle, but as we will see today this is not so in tobacco litigation. And in the tobacco litigation story, as it unfolded in the U.S., the tobacco industry had a strictly no settlement policy. In most jurisdictions, certification has become a hard fought battleground, because the concern of defendants is that once certified the chances of success then increase considerably. So certification really has become a battleground. One other issue is the class action regime in question opt in or opt out. In most common law jurisdictions it is opt out. What does this mean? That once the class is defined you are in it if you have suffered the loss described in the claim just by virtue of the fact that you have suffered that loss. You would have to take the explicit step of opting out not to be in that class. Using our banking example, if we define a class amongst ourselves and we commence proceedings, and in the next room there are a group of people who have suffered similar losses, they are in the class. And what's the rationale for that? It's access to justice and its efficiency and it's also deterrence. And just as an interesting aside, when I've taught classes that have a combination of students from common law and civil law jurisdictions, and I say to them imagine that you're designing a class action regime for a particular country should it be opt in or opt out. Most of the time the students from civil law countries say it must be opt in. They're focusing on an individual autonomy approach, whereas in the common law class action regimes we've given more weight to access to justice and deterrence and trying to collect as many as we can in the particular class action. There are plenty of other provisions, for example, about notice and so on, and that notice has been controversial because at least in the early days the notice requirements that courts were imposing on parties were in the hundreds of thousands or even millions of dollars, which would of course make the regime less accessible. And one final feature, all members of the class are bound by the judgment unless they have opted out. So that gives you a very brief description of what a class action is in the common law systems. Okay, why have such mechanisms? Well, one is efficiency, better to have one proceeding with one judge than to try similar claims in dozens of courts, with dozens of different judges. Another is access to justice. I've mentioned that all of our little claims, you know the $23 claim or the $2,000 claim, they wouldn't be pursued individually, but now that we have grouped together we can pursue them and so that vindicates even those small claims. It might not be significant to the person with a $23 claim, but more so for the person with a $5,000 claim or a $10,000 claim. Then the other more controversial one is deterrence and behavior modification. Now in our bank action that I've opined about here, we want to get the banks to stop levying inappropriate charges. Get this company to stop misstating things in its perspectives. Get this automobile manufacturer to stop installing faulty airbags and so on. This might be the most controversial of the various justifications offered because some find it hard to see a causal connection. If we look at the legislative and law reform comments and work that preceded the introduction of class action legislation or rules across common law jurisdictions, the deterrence and behavior modification aims are identified more often than not as a rationale. But in some jurisdictions they have explicitly decided not to, right? Because they thought it would be more politically acceptable if they leave that aside. And again that has to do with this regulation, litigation, you know, divide and the proper role that people think courts have and how far you might be willing to concede that a court can actually, through litigation, have a regulatory role. In Australia for example with a class action regime that those of you who have looked at Canadian regimes would recognize many similar features in the legislative debates that led up to the enactment of the class action regime there seemed to be a clear intent to avoid saying those words deterrence and behavior modification. But of course after the fact everyone concedes that they do have this behavior and deterrence and behavior modification role. Okay so that's class actions. It gives you a sense of what they look like. Let's now look at the three waves of U.S. litigation. And these are as I said the very early but a very substantial chapter in the tobacco litigation story. And it certainly is a story, some have even suggested some morality tale. I don't know if that's so or not but I can see why they might suggest it. So let's look at the first wave. It happened in the 1950s. Information was slowly coming to light suggesting that smoking might be dangerous. That was the 1950s. The tobacco industry put a robust public relations approach in place to counter this potentially damaging information. Individual tort lawsuits began and generally these were not successful. And by that I mean plaintiffs lost and the tobacco industry defendants won. In this first wave of tobacco litigation we had not yet had the advantage of whistleblower revelations, surgeon general reports, and evidence of industry cover-ups. That came later. The industry was able to succeed primarily by arguing that there was no scientific proof that smoking caused cancer. It is an understatement to describe the tobacco industry as a formidable litigation opponent. Various metaphors have been used. I referred to some of them earlier. Deep pockets, scorched earth, and so on. Putting aside for a moment the disdain one might have for their tactics it is hard not to marvel at their effectiveness in litigation especially in these first waves of litigation. And they were able to export the machinery they had developed to fight cases to other jurisdictions. In Australia for example one could see unfolding in some of the litigation there that I've mentioned the tactics that had been used and perfected in earlier US tobacco litigation. They were at the time the quintessential repeat player to use Galanter's descriptor. Galanter wrote an article called Why the Haves Come Out Ahead and he looked at resource among other things resource and balances that can exist in litigation. Money, experience, expertise, and so on. And how it affects outcomes. There are a few famous quotes from the these early waves of US tobacco litigation that describe the tobacco industry's philosophy. One is a case is never lost if it is not tried. That was one approach they took and so what does that mean? You know basically drag it out as long as you can and by the way our system and our civil procedure rules do make it possible to do just that. If you delay, delay, delay that means money, money, money and if you've got deep pockets that works for you. Another famous quote was this and I'm quoting exactly here which is my way of saying excuse the language it's not mine it's in a direct quote. This was a tobacco company executive. To paraphrase general Patton the way we won these cases was not by spending all of our money but by making the other son of a bitch spend all of his. That was one of their approaches. In this first wave of tobacco litigation cases in the US the economic stakes were high for tobacco companies theirs was reportedly at that time a 50 billion dollar per year industry they had seen what happened in the asbestos industry and if any of you have looked at or know about the asbestos litigation that unfolded in the US one of the things that happened there is that eventually the asbestos company started to settle individual suits and eventually they became bankrupt and so the tobacco industry was very aware of what had happened and did not want the same thing to happen in tobacco litigation hence there one reason why they wouldn't settle so that was the first wave in which the tobacco company basically won all of its cases then we have the second wave which came in the 1980s now a lot had happened between say 1960 and 1980 to change the game a little bit between the end of the first wave and the beginning of the second wave there had been a great deal of asbestos litigation as I just mentioned that's another big story for another time for now we can note that a much more experienced plaintiff tort bar now existed okay back to my comment about repeat players one of the things that make you a repeat player in litigation it's resources one of those resources is expertise right how good are you at this and one thing that came out of the asbestos litigation was that a mass injury private tort bar lawyers developed so that they were able then to transfer some of that learning and that expertise in this second wave of tobacco litigation to the tobacco cases so there was that furthermore there was also now more evidence including a surgeon general's report of a link between smoking and cancer but notwithstanding this the industry still prevailed in the litigation they were still able to succeed first of all by prolonging things procedurely and on individual causation issues in other words you know calling we were still dealing mostly with individual tort cases and requiring each individual to prove that the reason they had this illness was because of the cigarettes and it was still hard to do and their narrative was to blame the victim that's what they did and it worked and by the way juries did too okay because these trials were jury trials and juries were still not inclined to do anything other than say if you're stupid enough to smoke then you know you get what you deserve Richard Daner to leading us tobacco control advocate made this comment about juries in this second way a few us litigation in his view jurors need to be convinced to relax their impulse to blame the victims of tobacco induced disease a dominant notion even among smokers is that anyone stupid enough to smoke deserves what he gets ignored in this reasoning is that most smokers became addicted as teenagers and that most have tried unsuccessfully to quit and for those of you who are familiar with some of the tobacco regulation industries that governments and advocates have dealt with a big one is trying to control advertising directed at young people I don't know some of you in the room might be old enough to remember Joe camel a cartoon character that was used to advertise cigarettes and some research was was done indicating that a very high percentage of kids actually were quite familiar with the cartoon character which of course was was the aim but certainly one of the one of the strategies of the tobacco industry was to advertise to and appeal to young people and to get them started young Daner back to the quote I just made Daner also speculated somewhat presciently I think that increasing public awareness of the addictiveness of tobacco use can be expected to reduce the prejudice against smokers and as the narrative shifted in that direction that is what happened he and he said detailed evidence of unsavory tobacco industry behavior may redirect some public animosity towards the industry he was right on these counts that is exactly what happened and things were probably already in transition in 1988 by the end of the second wave when he made those comments the second hand smoke cases also had this effect they were starting around this time and they were shifting the narrative of blame the first one be I think being a case brought by flight attendants the narrative switched from you are hurting yourself and you're responsible for that to you are hurting me so you as the narrative switched in these ways it made things harder for the tobacco industry so as I said before the tobacco industry had watched very closely what happened with asbestos litigation the asbestos industry had opted for the settlement route to avoid litigation which also led to an avalanche of individual suits which led to bankruptcy this probably steeled the resolve of the tobacco industry to fight all individual suits and not to settle any individual claims there was one success one individual case in the second wave it was the Cipollone case and I'm going to just read you one excerpt it's just she says it better than I can this is from Lynn May there's article just to give you a sense so she says between the 1950s and 1995 smokers and the families of deceased smokers filed more than 700 product liability lawsuits against the tobacco industry for the damages caused by smoking but in only one lawsuit Cipollone versus Liget Group did a jury in 1988 rule for the plaintiff and award damages that verdict was then overturned by the Third Circuit Court of Appeals after defeat at the Third Circuit level the Cipollone family then appealed to the U.S. Supreme Court the Supreme Court in a complex and splintered ruling reversed at the Third Circuit decision and remanded the case sent it back to the trial level at that point however neither the family nor the law firm could afford to continue the litigation thus the tobacco industry had preserved its long time boast of never paying a dime to any smoker who suited the Cipollone lawyer Mark Edel was experienced with as best as litigation and had the support of other plaintiff lawyers as part of an anti-smoking litigation group but they were totally outmatched in the case the Cipollone lawsuit involved more than 100 motions now that's amazing if you think of so what a motion is is some contested issue that arises a trial within a trial in a sense and that's contested that takes time that takes preparation and of course it costs money imagine a hundred that is massive just kaching kaching I mean the money that this would cost is quite something 100 motions most of which were argued IE contested several key pre-trial appeals a four month jury trial two petitions for certiori to the Supreme Court one of which was granted with argument and then reargument before the court again the estimated total plaintiff expenses including out-of-pocket attorney in paralegal time in trial and appeals were three million it would be a lot more now for that same time in contrast the defense the tobacco industry spent more than 25 times that figure the three largest cigarette manufacturers spent at least 75 million on their defense of one case Cipollone with figures like these for a suit against tobacco that gain not a cent for the plaintiffs it is not hard to see why legal experts such as raven and Schwartz would disparage the possibility of tort law as a vehicle for policy change I'm not as cynical as those people he's just referred to but you can see what the what the challenges are so that that's a good example that was the only out of those roughly 700 cases that was the successful one and in that if they'd had the resources to continue there was a chance that they could at the state level have brought successful litigation it might have been the chink in the armor or the foot in the door but they just didn't have the resources to continue okay so that really gets us then to the end of the second wave wave 3 the third wave was different from the first two it included individual claims but it also included class action and state claims to recover Medicaid costs related to state expenses incurred in dealing with the negative health effects of smoking these state claims were a new component not present in the first two waves there was also and by the way I think they were one of that's that was probably the turning point in this story those state claims there was also a lot more info information available now some of it from whistleblowers I don't know if anyone has seen the insider with them Russell Crowe but that's based on dr. Jeffrey Wiggins who worked a research director for one of the three large industries and he he became a whistleblower and and in fact gave evidence in might have given evidence in the Quebec case I'm not sure but he became a witness in some of the tobacco litigation and in addition to what we got from whistleblowers because of all that litigation that had been happening although it had not been successful a lot of information had been revealed in the discovery process in that litigation so in civil litigation there is a process called discovery where parties have to exchange documents and as the documents were ordered to be disclosed by judges and became public we learned more and more about what the tobacco companies had been up to collusion and so on the causation and contributory negligence arguments used by the industry in the earlier waves of cases brought by individuals were irrelevant in cases in which the states were plaintiffs that's one of the reasons why I say I think that state leg litigation was a turning point these state Medicaid cases were based on epidemiological evidence not on the conduct of any individual smoker remember that in the earlier ways the cases were primarily individual tort claims brought by single plaintiffs but Alderman and Daynard observed that the state attorneys general had some financing from their states and contingency fee support from private attorneys and unlike individuals the states were fault-free plaintiffs against which the industry could not employ assumption of risk or contributory negligence defenses the state initiated litigation ended in the master settlement agreement with all states eventually signing agreements with the industry the industry agreed to pay about 240 billion dollars and to make certain other concessions regarding things like advertising and promotion and depending on who you talk to that was successful or not some of some tobacco control public health people in the tobacco space think that in fact they should have done better they should have got more strict terms in the master settlement agreement others look at it and say we got something we got a lot more than we ever got before and we got we finally got the tobacco industry to basically concede defeat and settle so it depends on on your view here I happen to think that it really was a turning point and something did come from it there were some specific regulatory changes that happened quite apart from the more implicit advantages in a regulatory sense from you know the revealing of the information and so on and in the litigation so the tobacco industry's strategy had been never to settle and to fight every case but this time they had settled and they'd they'd paid a lot of money I did know one parallel here something that's been happening in the climate change space I'm certainly not a climate change expert by any means but I this did catch my eye some litigation going on in New York under legislation called the Morgan Act against ExxonMobil and it is a bit of a switch in the usual approach to litigation the investigation differentiates itself from previous climate change litigation by attempting to hold companies responsible for their contributions to climate change using laws unrelated to climate change I thought that was interesting because again we see the narrative switching right yeah taking a different tack having a different theory of the case what's the theory of the case in this New York litigation the failure of these companies to disclose risks related to climate change in their security and exchange commission disclosure so going in a completely different direction sort of like getting al Capone for tax evasion rather than any of the other things that that he was known to have done so I thought that was an interesting parallel if you're thinking of using litigation effectively as an advocate to really bring about change think about what you know first of all what kind of litigation you're doing but secondly what's the theory of your case and you know what's the most effective way to bring about some change so the mass the master settlement agreement was a success when considered in the light of the failure of previous tobacco litigation but amongst public health advocates and experts there are mixed views about its efficacy as I said previously and there are many who see the MSA in regulatory terms as a failure the money paid was less than earlier draft agreements had required it was still a lot 240 billion but there had been some earlier discussions which had the tobacco industry paying something in the 350 billion range so people saw that as a failure the so the money paid was less than had previously been suggested and the concessions obtained from the industry were also thought by some to be much weaker than required for real public health benefits furthermore as time went on after the master settlement agreement it appeared that the money obtained by the states in the settlement was being used for various reasons not all of which had to do with tobacco control and one example was that one of the states tried to commoditize the value of its master settlement agreement contribution to pay off some debts that nothing to do with right tobacco control so that's that's too bad but but there were some states that did actually use the money for various tobacco control related public health issues while state litigation to recover Medicaid costs and the master settlement agreement were the main event in the third wave of litigation there were also a number of individual and class action cases in some of which the plaintiffs were successful but most of which were overturned on appeal litigation successes and failures are one thing here I mean the actual outcomes of cases but there might also be success in the sense of achieving some positive policy health outcomes with litigation independent of the actual outcome of the case Danard observed in 1988 that a major defect in the use of litigation as a cancer control strategy was that the tobacco industry was winning all of its cases in his view litigation would become an effective strategy once the plaintiffs had recorded a few wins Mayther takes a similar approach I think in her article theorizing about trial courts lawyers policymaking and tobacco litigation she analyzes the efficacy of litigation but she focuses on the entire process and not just on outcome right and I find this quite useful because a lot of the critics of the value of litigation as a tobacco control strategy look at are looking at appellate outcomes right they're going to what the Supreme Court said or what the appellate court said and saying well it's a it's a loss so therefore it's not useful Mayther takes a much more holistic organic approach to things she analyzes the efficacy of litigation by focusing on the entire process she suggests that lawyers judges unions because unions got involved also in litigation to try to recruit their costs state attorneys general individual plaintiffs and many positive trial court decisions had an effective policymaking role and in her view to understand how policymaking about tobacco became so conflictual from 94 to 98 that's when the states were were bringing their litigation and you know led up to the master settlement agreement and why the industry offered to settle cases and submit to government regulation we need to look at trial lawyers jury verdicts and judge decisions topics that were virtually ignored in political science and in the analyses that were happening in this space in previous decades so may there endorses an approach that instead of focusing on appellate outcomes and instead of focusing only on supreme court decisions focuses instead on processes and the various actors in these processes and on the ways laws and judicial decisions can build social movements compel policy changes and develop legal consciousness so she calls hers a bottom-up and inside-out approach rather than a top-down and outside-in approach she says to explain how litigation and trial courts have affected tobacco policy I rely on a broad definition of policymaking as including a series of different stages from problem definition and agenda setting to rule establishment to implement implementation rather than only seeing policies as made at the point of rule and act mint she argues that while the Cipollone case the one I told you about that went all the way to the Supreme Court was a man did bet but by then they'd run out of month plaintiffs had run out of money the Cipollone plaintiff lawyers had to give up because they had so they had no money left the opening created by the Supreme Court of the United States in their judgment and there was an opening there that made the possibility of state success at the state level a live one might just have been what was needed to send a message to the plaintiff bar that there is a risk here worth taking and I want to stop there again I said this earlier but we can't underestimate the contribution that risk-taking lawyers have played here okay eventually what happened I think the tobacco industry was able to shift the narrative again sometime in the late 80s to greedy lawyers and once they did that I think the the landscape changed a bit but if if you look at what some of these lawyers did to make it possible to bring cases you have to I think you have to admire them and in fact going back to the Australia legislation I was there living and working and teaching in Australia and doing research on these issues when the legislation was fairly new and so I got to watch it develop and the real reason it developed well is because there were one or two gutsy plaintiff lawyers who put it all on the line and what they put up with in order to have that first or that second success was really quite something remarkable including extreme personal financial risk but it grew the it grew the legislation and finally got it to the point where it was able to achieve some of its intended aims like class actions or not they exist for a purpose and you know risk-taking lawyers in situations like this where a lot of courage and risk or risk-taking are needed really do make a difference for the good and I say here enter the entrepreneurial lawyer some people think entrepreneurial is a dirty word but in this context in the context I'm using it I don't think it is all right let's see so let's talk about the impacts of the three waves I'm just got about five more minutes here and then we're going to open it up again I'm going to adopt Lynn Mayer's analysis her bottom-up inside-out approach she summarizes the impact of tobacco litigation and especially the third wave as having both constituted and caused change in tobacco policy-making in her words the litigation and rulings redefined the tobacco problem so problem definition switching the narrative is essential named it as worthy of legal attention IE you know to appeal to some risk-taking lawyers created new players attorneys general right because of the state litigation we now had attorneys general who come with resources and power and private lawyers and conglomerates of trial lawyers because one of the ways the trial lawyers in the US were able to actually take some of these cases was to basically form teams get over their usual competitive inclinations with one another to form teams and actually pooled resources and so that in a sense back to the lanterns repeat player it made them a bit of a repeat player whereas an individual lawyer might not have been so I wouldn't do all of that just a few of the things that come out of this wave disclosure of damaging information even in the unsuccessful litigation lots of information was disclosed that told us about the industry and what had been up to lots of media attention which was increasingly adverse reframing of the narrative I've told you about that how the narrative was reframed from to fit from traditional in individualized tort litigation principles of responsibility assumption of risk contributory negligence to the language of fraud deceit and addictive addiction now there are others who present a less optimistic picture than than may there who say okay litigation has a role but it's complimentary it's not quite as central as may there says okay so just I'll say a few words about the Quebec class action and by the way I should say for those of you don't know we got going on in Canada now that same state attorney general litigation every problem I think every province now in Canada has a claim to recover health care costs related to tobacco I'm surprised it's not getting more attention I was chatting recently with a former politician who had an act of role in federal tobacco legislation and bringing him about and so on in the 90s and he was making a similar comment and saying they should really be pushing this and I suppose if they were thinking that this really is an effective way to bring about change they might be so it's not getting much attention started in BC with the health care costs recovery act the tobacco industry challenged it went all the way to the Supreme Court Supreme Court upheld it and then other provinces followed suit so now we've got basically a nationwide litigation similar to those American Medicaid cases but now we've also got in Quebec two class actions okay one brought by a group of people who actually are suffering from cancer and other smoking related illnesses and one brought by people who although not suffering from illnesses are addicted that's the two classes that have been defined the plaintiffs claims state that tobacco manufacturers fail to warn consumers about the dangers of their products to consumers health and that they implement policies to publicly deny the harmful effects that they deliberately manipulated their products to maintain addiction and that they were very much involved in generating scientific controversy and spreading misinformation the actions commenced in 1998 and were authorized certified in 2005 so it took seven seven years never good at math seven years just to get to certification over 16 years of proceedings and 253 days of hearings 76 witnesses took the stand and over 30,000 documents were tabled as evidence fact witnesses included current and past tobacco company executives federal public servants a former federal minister of health there were eight expert witnesses for the plaintiffs and 16 for the defendants justice Reordon and his predecessors rendered more than 100 there's that magic number to get 100 interlocutory judgments okay you can see why it would take 16 years with 100 contested motions and more than 40 of those were appealed by the defendants none successfully it sounds like the tobacco the US tobacco story the decision was released in May 27th 2015 in favor of the plaintiffs in a 276 page judgment Justice Brian Reordon of the Quebec Superior Court found the tobacco companies libel he made an order for damages in the amount of 15 billion dollars all three tobacco companies have appealed the decision was heard in at the end of 2016 so it would be very interesting to see what happens with that one one final special feature of the Quebec class action regime which is shared by Ontario but no other Canadian jurisdictions there is a public fund that you can apply to to get support for your class action it's called a phone f o n d s of the fund and if you are successful then what does that do that really removes a lot of the risk right because without that who's funding the class action basically the lawyer is funding the class action the lawyer is taking all the risk usually it's done on a contingency basis which means okay if you win you get a nice payoff if you lose you get nothing right and plus you've incurred a lot of expenses in time in other ways so if the fund accepts a request for funding it can pay lawyer fees expert fees fees advertising in the newspapers to give notice that's a big part of it court costs and other expenses necessary okay so Ontario has that as well in Australia when the law reform document was done recommending a class action regime they also recommended that the only way it could really be successful and achieve its purposes is if it had that sort of public fund attached to it but that was not one of the outcomes the the litigation the legislation was enacted but no such fund was okay so I'm just going to look through my notes here I'm not going to tell you anymore about the Quebec class actions I'll just make one concluding comment and then that's it at the outset I said I would make some preliminary general comments time permitting about the connections between the nature of a regulatory state and the role that litigation might or should play as a regulatory tool I think I refer here to some of the work of Maria Glover who has said that private regulation through litigation is integral to the structure of the modern administrative state private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime much less are they fundamentally at odds with it so in this way she's closer to the view of May there and probably would think that some of the other critiques have misunderstood things now one of the questions is though what kind of administrative state do you have and one of the arguments Glover is making is that the tendency in the US is to do ex post as opposed to ex anti-regulation okay to basically prefer regulation after something bad happens as opposed to focus on regulation to keep something bad from happening and hence in Glover's theory that this is why private attorneys general which has it is the name given to some private lawyers who take on some of this litigation why there's such a space created for them because in a sense there is a gap because of ineffective regulation you might buy that theory or not but that's her view now just a comment from justice burger I think as cheap justice burger recognized the aggregation of individual claims he's talking now about class actions in the context of a class-wide suit is the an evolutionary response to the existence of injuries on remedied by the regulatory action of government now that's written in an American context right so one of the questions I would ask as a Canadian is what kind of a regulatory state do we have and if I were then to ask and answer that question I would do my analysis of the role of litigation under that umbrella and I think the analysis would be a little bit different one of the things I thought about as I was preparing for this presentation is what has happened in Canada from a legislative and regulatory perspective let's say over the past 25 years and what does it tell me about whether we are better at least in the tobacco regulation space at ex ante before the fact regulation as opposed to afterwards and my conclusion is that that we are actually and in fact just in the past in the past couple of months I'd be interested to talk to anyone in the room who knows about this Health Canada has put out a consultation document seizing the opportunity the future of tobacco control in Canada the last time they did this was in 2012 and as I read this document I and think about it in the context of Glover's regulatory state comments I am led to conclude although it's tentative at this point I need to think about it a bit more that we are actually doing a better job in the ex ante stage of thinking about how effectively to regulate tobacco control and that that would then I think have an analysis on the role we think litigation should play so I think that's enough I'll stop there and I guess I've left you with a question but that's okay so I'm happy to take any comments or questions I guess there's a cut I think maybe there's two questions there and I'll sort of take the second one first one thing I'd like to do is actually make litigation itself more effective right if you know should these cases take 16 or 17 years from beginning to end I don't think they should regardless of the place we think they occupy we're probably all going to conclude or many of us that they do occupy some place in our in our system for various reasons not all of which would have regulatory purposes and so that's one part of it I would try to I think about that and one of the difficulties of course is goes to the heart of what our adversarial system is and how it works and how it doesn't work that's one problem related to that I think is the role of judges which even though we've gotten better at the concept of a judge's case manager I think we've got a long way to go so that's the second part of your question and it's how to make I'm not I'm supposed to be over here aren't they told me not to wander too far it's it's and I said I promise I won't and there I did it on the first question is how to make litigation more effective and then I don't have I have less of an insight into the first part of your question and I think if I've understood correctly that it goes to the comment I was making about what's the what's the nature of our regulatory state and it was interesting I've done a read I haven't done a word search but in this document I just mentioned the word litigation isn't mentioned once in it right the government document that you know seizing the opportunity yet the next sort of five-year plan and they use language in here like calls to action and so on and so I think it would probably be the kind of ex ante before the fact regulation that's reflected in this document right I think that's good and advocacy the the role of advocacy groups and taking these issues seriously and and feeding into them so that's some of the I don't know if that answers your question but I didn't expect yeah yeah I mean what BC so what BC and then all the other provinces they're doing they they figured out they saw the Medicaid state attorneys general legislative litigation in the US and figured out that this was a pretty good idea and I think I think it is so this is why I like Mather's analysis because may there some people say litigation is a complementary tool right whatever word you use but what I like about Mather's analysis is that she understands that it's not just one thing right it's litigation it's regulation it's advocacy yes and I was thinking a lot about legislation that to my knowledge we don't have in Canada like the false claims act in the United States that not only goes some way to protecting whistleblowers but rewards them for so doing so and that's conceived in the regulatory theory literature as a public private regulatory tool that you sort of have these private whistleblowers that assist the state in prosecuting the deception of the government and the evil return and so I wondered if you have any reflections on whether those kinds of legal tools might be useful in a context like Canada you may be less so in tobacco where we sort of already know a lot about the harms but you know an area that's near and dear to my heart around pharmaceuticals where what's actually going on the people with the knowledge encouraging them to come forward isn't easy. Do you have any reflections on those kinds of legal tools as part of this broader sort of set of tools for regulation at large? Yeah I don't know if you look at if you read a little bit about the life of Jeffrey Wigand who was the director of research with I think was Brown and Williamson doing what he did was not a heat I mean it had a real impact on his personal life and his professional life so the more protection you can give for people in that role the better. I'm not sure if the American legislation you've referred to was in place when he came forward you know he lost his job he based his personal life fell apart he was bankrupt you know it's it's it's hard so anything anything to encourage whistleblowers to come forward is vital and it is because look at the impact one of the biggest positive developments in this morality tale this tobacco story is the revealing of information right through discovery and through whistleblowers and so that really that and the master settlement agreement were in my view the things that really did shift things and and adjust readjust the balance of power and so that indicates that protection for whistleblowers that is a very good legislative strategy would be to make sure that that exists again back to the point it's not just one thing right thank you I found that very interesting and I appreciated it I wondered about the fund that you mentioned that you can apply to in Ontario and Quebec and I would be interested in your further comments on it obviously it has made class actions more amenable in those two comments and now I understand more generally than tobacco but I'd be interested in your comments on whether for instance every province should have this are we able to ride off of the presence of the funds in Ontario in Ontario or Quebec or should we in Nova Scotia for instance have our own to encourage class action I lean toward yes in answer to that question and I go back to again looking at some of the law reform work that was done leading up to many of these class action regimes and systems and the number of times that the recommendation was made that to really make this efficacious you need to have one of these you need to have this public support and I think you do because one of the things we learn from the US tobacco litigation story is just how hard it is when you don't right so one way to make it affordable and this is what Ontario does is that in exchange for getting the benefit of it you agree to give a percentage of any outcome back to the fund right so you can grow the fund that way so it's not entirely state supported so I would also support that kind of a provision what one of the things that has grown up in Australia some of you will know about this but it's third party litigation funding where companies who are in the business of funding litigation for profit step in and that's what's happened in Australia so in Australia lawyers aren't allowed to charge contingency fees it's a cost shifting jurisdiction which means loser pays winner and there is no fund and so some very enterprising people formed companies to basically fund litigation so in a sense the Australian equivalent of the fund are the private companies you go to and you apply and you say will you fund this litigation I don't like that model as much although I think it's better than nothing because again it means the difference sometimes between the cases being brought and not being brought and there are some of these private third-party funders funding some cases in Canada now but less so because of the fact that lawyers can charge contingency fees and that we have in Quebec and Ontario the funds but long answer short answer is I lean towards saying yes some version of the fund I think is a good idea if you really want to give these class action this class action legislation feeling scope so so are you thinking is it possible that we might find ourselves in a space where lawsuits against marijuana producers are being considered is that what you're thinking among other things I guess I'm also wondering if potentially since there is some resistance from the public health sphere around the legalization of marijuana if they can borrow from some of the experience that previous public health advocates have gained from the tobacco sphere or it will be completely new territory it won't be completely new territory now they can borrow because you you saw it happening from as best as to tobacco and then you see it happening from tobacco to gun control right if you look at these you can see that one is building on the other and learning from the other so there would be a lot to learn what I haven't thought about it's an interesting question and I guess I just don't know enough yet about the impacts of marijuana what I haven't thought about is how that might play out in a litigation way but that I think that's we're a long way from that yet aren't we yeah but but there definitely is something to learn no question about it yeah I guess the main learning the main learning the reason it was so important in tobacco litigation is between we're talking about mass harm right as best as tobacco gun control these are situations of mass harm and so that's why I think one was useful as a learning tool for the other so it depends on what the harms are in the marijuana space you know it's position in relation to mass harm so I think the blood litigation in the past or essential schools long time you know coming to the settlement and prison litigation now so often you know government is also over to what extent that plays a role in the willingness of government say to you know these sorts of funds that we've been talking about and what might make the difference between you know a government like Ontario that's open to that to encouraging class actions such a mechanism and one that is going to fall because that might actually have more vulnerability as opposed to the story we're telling you know encouraging government regulatory we don't want to empower somebody to sue us yeah so if I think about some of the work some of the discussion in the Quebec so much of this is political right and so much of this really does depend on what's the political climate and who's in control at the time that this is being debated and that's been commented on in the Quebec situation and also if I think in Australia there I think there was a more conservative political climate then and so not only did they say no to the fund but they even wouldn't acknowledge deterrence and behavior modification as right so so much of it depends on that it's a good question the trick is to get it at the outset you're right as as the litigate as the legislation is new much harder to get it once the legislation has been in place for a while so I'm not sure I don't have a few but how you might how you might lobby them and I think it would be I'm not even sure on my list of things that I would take on where I think I might have some chance of success that would be lower down the list because it's I think it would be different yeah yeah yeah in a province that doesn't already have it yeah somebody said to me recently it was interesting someone who's done some class action litigation about the Quebec class action legislation the it seems the approach in Quebec is on the by the courts justified to us why this shouldn't proceed as a class action rather than justify to us why it should write that there's a very different approach but it wasn't always the case if if you look at if you look at any jurisdiction that's taken on a class action it's very unfamiliar right you're switching from one lawyer one person to a whole amorphous group of people who aren't even before the court and it's it's unfamiliar and so judges generally took a very conservative approach to interpreting it and that happened in Quebec too but jurors prudentially in Quebec there was a switch and they took a much more liberal approach but back to your question yeah I don't know I don't have an easy answer for that one and that would be really if you took that on lobbying the government try to put that sort of fund in place that would be a huge project a little bit so I did I do some time ago recall chatting with there was some tobacco litigation going on in the Netherlands and I was chatting with some lawyers about it and found out that they do not have in in litigation in that country our concept of discovery so there was really no exchange of documents and I thought to myself how on earth do you even have a chance if you can't get documents now in the tobacco the good news is isn't the tobacco litigation story because is international a lot of the documents are already out there anyway as a result of the litigation that happened in the States so there has been some there increasingly European countries are taking on some version of a class action different from the common law version but they have it but there hasn't nearly been the amount of tobacco litigation there that there has been in the US and it might have something to do I don't know I'm guessing now this idea of the nature of the regulatory state I'm just guessing now I'd have to look into this but it might have something to do with the fact that perhaps they're better at ex ante regulation regulation state regulation I don't know that's that's possible and yeah yeah it's true and people who've compared the nature of regulatory states do observe that many European countries do more ex ante regulation but but yeah they do yeah they do smoke a lot more and if looking at this document for example this Canadian document and the calls to action and the aims when they compare themselves to countries who set ambitious aims the there's only one European country in the list it's Finland and the rest are New Zealand you know Australia and so on Hey before I ask you to help me in thanking Dean Cameron for today's talk I wanted to just thank all of you for coming as well as other members of the Health Law Institute most notably Professor Sheila Wildman for sort of curating this this year's set of speakers but thank you in the audience we have sort of to use the Lanter's term a roster of repeat players but also folks at a very diverse crowd and come in and come out new folks coming to each seminar and part of what really makes the seminar such a delight to attend is not just the speakers but all of you who come and engage so thank you very much for coming we're looking forward to having a new seminar series starting next September we're working on putting together an interest in speakers for next year again and after reminding you of that I'd just like to ask you to join me in thanking Dean Cameron for reminding us of the power of litigation as much as its tradeoffs are alive and well as well but I think she's given us a lot to think about in terms of sort of the broad view of regulation in different areas of health so please thank you Dean Cameron