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

This paper outlines how the judgment in Létourneau c JTI Macdonald Corp, 2015 QCCS 2382, can be applied to a class action against Pfizer, the manufacturer of the smoking cessation drug Champix. In Létourneau, three tobacco companies were liable for failing to warn consumers of the health and addictive risks of cigarettes. Pfizer launched Champix in Canada in 2007 and, by 2010, had updated its product monograph
four times. The fourth iteration included a black box warning about adverse psychiatric side effects. Three principles
underscoring Létourneau are especially useful for a Champix class action: the recognition of nicotine addiction as a legitimate illness; the enhanced standard of care owed to sufferers; and a flexible interpretation of breach of standard of care and causation, which is possible without loosening evidentiary rules of the common law tradition. Using Lara Khoury’s “flexible procedural and substantive approach,” class members can adduce sociological evidence to prove that, from 2007 to 2010, Pfizer knew about psychiatric side effects and thus breached its duty to warn. Plaintiffs can use the “material contribution to risk” test from Clements to establish general causation and the “but for” test to establish specific causation. Plaintiffs with a history of mental illness can then surpass the “ordinary fortitude” requirement from Mustapha that would otherwise bar recovery. This paper concludes that the common law is well-suited to hold Pfizer accountable for marketing an unsafe product to the same group of consumers for which Létourneau created an enhanced standard of care.