Successful Tobacco Litigation in Quebec: Why Hold Cigarettes to a Higher Standard Than Pharmaceutical Products?

• Author: Tijana Potkonjak
• Pages: 97-122

97

SUCCESSFUL TOBACCO

LITIGATION IN QUEBEC:

WHY HOLD CIGARETTES TO

A HIGHER STANDARD THAN

PHAR M ACEUTICAL PRODUCTS?

Tijana Potkonjak

Abstract: This paper outlines how the judgment in Létourneau

c JTI Macdonald Corp, 2015 QCCS 2382, can be applied to a

class action again st Pf‌izer, the manufacturer of the smoking

cessation drug Champix. In Létourneau, three tobacco com-

panies were liable for fail ing to warn consumers of the health

and addictive risks of cigarettes. Pf‌izer launched Champix in

Canada in 20 07 and, by 2010, had updated its product mono-

graph four times. The fourth iteration included a black box

warning about adverse psychiatric side effects. Three prin-

ciples unders coring Létourneau are especially useful for a

Champix clas s action: the recognition of nicotine addiction

as a legitimate il lness; the enhanced standard of c are owed to

sufferers; and a f‌lexible interpretation of breach of standard

of care and causation, which i s possible without loosening

evidentiar y rules of the common law tradition. Using Lara

Khoury’s “f‌lex ible procedural and substantive approach,”

class members c an adduce sociological evidence to prove that,

from 2007 to 2010, Pf‌izer knew about psychiatric side effects

and thus breached its duty to warn. Plaintiffs c an use the

“material contr ibution to risk” test from Clements to est ablish

general causation and the “but for” test to establish specif‌ic

causation. Plaintiffs with a history of mental illness can then

surpass t he “ordinary fortitude” requirement from Mu stapha

that would otherwi se bar recovery. This paper concludes that

98 The Cana dian Cla ss Action Rev iew

the common law is well-suited to hold Pf‌i zer accountable for

marketing an un safe product to the same group of consumers

for which Létourneau created an enhanced standard of care.