the McTear Case: A couple of Pages from my Analysis.

I have reached a point (the end of Sir Richard Doll’s evidence) where it is convenient for me to stop and rest my brain for a little while. I have decided to publish a couple of pages of what I have written.

I hope that people will understand that, at this point, the last thing that I want is a lot of comments! I am about half way through, with many of the trickiest sections still to come (the Judge’s comments on the expert witnesses evidence in particular). I need to spend my time ploughing on. Having said that, a little encouragement is always welcome, and, of course, any comments are welcome, provided that they are general discussion. I cannot answer any questions until I have done.

Note especially that I have entered the ‘Part’ and ‘Paragraph’ from which my comments and quotes originate. So persons can look at the actual text of the document if they so wish. Here is the URL for ‘THE OPINION OF LORD NIMMO SMITH’ once again:

http://www.scotcourts.gov.uk/opinions/2005CSOH69.html

It is easy to find any particular passage by reference to the contents page which appears at the beginning.

A SPECIAL NOTE: THERE IS ALWAYS THE POSSIBILITY THAT SOMEONE COULD ACCUSE ME OF LIBEL. IT IS HARD TO SEE HOW, BECAUSE ALMOST ALL MY ANALYSIS IS IN THE FORM OF QUOTES FROM THE ORIGINAL TEXT. HOWEVER, ANY COMMENTS THAT I PERSONALLY MAKE ARE ‘IN GOOD FAITH’, AND IN NO WAY INTENDED TO BE INJURIOUS.

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It is not easy to find a precise statement about the history of this case, and it is not very important anyway, but I have searched briefly and found what I think is enough information.

 In 1992, Mr McTear was diagnosed with squamous cell carcinoma. This tumour was situated around the place where the bronchial tube (windpipe) divides, one tube going into the left lung and the other into the right. It was inoperable. The word ‘squamous’ means ‘scalelike’, as in ‘fishscales’ or the scales of snakeskin. That is, they are flatish cells. They are particularly prevalent in the ‘epithelium’ of the bronchial tubes. The epithelium is a sort of ‘skin’ which lines the inner surfaces of organs of the body, in a similar way that your skin covers the outside of your body.

 At the time, ASH was advertising for smokers with lung cancer to contact them with a view to suing Tobacco Companies. I have since discovered that 300 people contacted ASH. Mr McTear was one.  

 The preliminaries for bringing an action began straight away, but Mr McTear was becoming weaker and so he gave evidence (presumably at his home) in the form of a deposition. The deposition covered such matters as when he started smoking, what type of cigarette he smoked, when he changed to roll-ups, what roll-up tobacco he used, when he tried to stop smoking and how often, and so on.

 In 1993, Mr McTear died, and so his wife, Margaret McTear continued the action. Death is such a strange thing – a few weks before he died, Mr McTear went on holiday with his wife to Malta for a fortnight. Death is such a strange thing.

Another peculiar thing, in the circumstances, was that Mrs McTear refused to permit a post mortem on the grounds that Mr Mctear did not want it to happen. Very odd in the circumstances.

 In 2001, Lord McCluskey agreed that there was enough ‘good reason’ to allow the action by Mrs McTear against Imperial Tobacco to proceed.

 I am not sure when exactly the action started. There are a lot of preliminaries to be addressed before the action actually goes to court. Both sides have to prepare their cases and produce documents and reveal their arguments to the other side. Witnesses need to be prepared and expert witnesses engaged. As far as I can see from this document, the real court action started in 2003, but spread over into 2004 somewhat. The critical event for this summary was:

 31^st May 2005: Opinion of Lord Nimmo Smith:

In the cause of:

Mrs Margaret McTear (persuer):

Against:

Imperial Tobacco Limited (defenders).

 

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 We must remember that THE OPINION was not a transcript of the whole trial. Lord Nimmo writes down in the Opinion those matters which were important in his decision-making process. However, he quotes huge chunks of verbatim statements from the witnesses, so, to that extent, it is almost a transcript.

 I have pondered what might be the best way to bring things together because some of the Judge’s comments on witnesses’ statements appear right at the end. Although the vast majority of the Judge’s comments will have to stay where they are (because they inter-relate), I have decided that this summary will be easier to read and understand if I bring forward some ‘later revelations’ (to show where a line of questioning is leading, for example).

 Where it seems appropriate, I have indicated the ‘Part and Paragraph’ in brackets alongside the quote or segment. Thus, (5.123) indicates part 5, paragraph 123. I have had to be very selective, otherwise this piece would be almost as long as the original.

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 (THROUGHOUT WHAT FOLLOWS, I SHALL USE THE WORD ‘McTEAR’ TO INDICATE ‘COUNSEL FOR….’ AND SUCH, AND ‘ITL’ TO INDICATE ‘COUNCIL FOR IMPERIAL TOBACCO’ AND SUCH.)

 PART 1.  PRELIMINARIES.

 There isn’t an awful lot that we need to concern ourselves with in this Part, but I will quote this:

 (1.5) The pursuer [Mrs McTear] can succeed in this case only if she proves all of the following:

(1) that cigarette smoking can cause lung cancer;

(2) that cigarette smoking caused Mr McTear’s lung cancer;

(3) that Mr McTear smoked cigarettes manufactured by ITL [Imperial Tobacco] for long enough and in sufficient quantity for his smoking of their products to have caused or materially contributed to the development of his lung cancer;

(4) that Mr McTear smoked cigarettes manufactured by ITL because ITL were in breach of a duty of care owed by them to him; and

(5) that such breach caused or materially contributed to Mr McTear’s lung cancer, either by making at least a material contribution to the exposure which caused his lung cancer or by materially increasing the risk of his contracting lung cancer.

But, there is one other consideration, and that is that if ITL rely upon the legal maxim volenti non fit iniuria (meaning that Mr McTear smoked ‘voluntarily’ and thus cannot claim ‘injury’), they must themselves prove that assertion.

I think that it might be as well dispose of the last para right way. At the very end of his Opinion, Judge Nimmo says this:

(9.13) On my interpretation of the law relating to the maxim ‘volenti non fit iniuria’, and in the circumstances of this case, I would not have been disposed to sustain the fourth plea-in-law for ITL, if the pursuer had otherwise succeeded on the foregoing issues (paras.[7.204] to [7.208]).    

Which means that, had Mrs McTear succeeded in proving that ITL ‘caused’ Mr McTear’s lung cancer, Judge Nimmo would not have accepted that ‘Mr McTear contributed to his own problems’, in which case ITL would have been liable.

(I trust that people can now see the value of jumping backwards and forwards! Much is simplified and we can disregard many legal arguments about the “volenti…” maxim)

Nimmo goes on to say that ‘public health matters concerning smoking are not involved and that only evidence before him matters.

McTear had been refused legal aid. The reason for this (among others no doubt) was that ASH had made statements which suggested that the case was being brought ‘for the benefit of others’, besides McTear:

(1.20)”we just need one breakthrough, we just need one victory. [...] We just have to win one case to win everything”.

(1.25) The judge agreed that ITL had greater resources than McTear, but this was to be expected. However, he would not allow ITL to unreasonably drag the case out.

There then follows a long list of legal and non-legal documents referred to in the case.

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PART 2 THE PARTIES’ POSITIONS ON THE MAIN FACTUAL ISSUES.

McTear’s position.

McTear claimed: that Government and WHO agreed that smoking ‘causes’ lung cancer; that Mr McTear’s lung cancer was caused by smoking; that, in 1964, when he started smoking, he did not know that smoking was dangerous; that, when he did become aware, he was addicted and could not stop smoking.

McTear suggested that the case was a straightforward one since Donoghue v Stevenson 1932 had established the principle of ‘product liability’. But the judge said:

(2.4) As will be seen, this approach has not found favour with me; though no doubt, if it had, I might have spared myself, and the reader, many hundreds of the pages which follow.

Here is something that I did not know. It seems that ‘tobacco products’ were specifically excluded from the Consumer Protection Act 1987. This came out when the judge asked McTear why no action had been brought against Tobacco Companies before, if it was so straightforward. McTear said: “They [TCs] were a very well-funded industry who were able to fight off attacks. This was how they had obtained the exemption for tobacco under section 10 of the Consumer Protection Act 1987.”

ITL’s position.

(2.7) ITL held that: smoking had not been proved to cause lung cancer; that smoking was a habit and not an addiction; that, in 1964, the possible dangers of smoking were well known among the public; that it was well known that the habit was difficult to break.

In the next section, McTear claimed that ITL had, more or less, admitted the harm of cigarette smoking in letters to the Health Committee of the Commons. ITL said that it had not agreed ‘more or less’ as was illustrated in this quote from a letter to the Heath Committee:

(2.13) “This is why, whatever our views on these complex issues [tobacco and health], Imperial does not challenge the public health message. It has not done so for almost forty years and intends, in the future, to continue its policy of not challenging the public health message that smoking causes these diseases.”

(2.14)  Prof Sir Richard Doll, Mr Gareth Davies (CEO of ITL). Prof James Friend and Prof Gerad Hastings gave oral evidence at a meeting of the Health Committee in 2000. This event was brought up during the present action as putative evidence that ITL had admitted that smoking caused various diseases. Although this section is quite long and detailed, I think that we can miss it out. Essentially, for various reasons, Doll said that ITL admitted it, but Davies said that ITL had only agreed that smoking might cause diseases, but ITL did not know. ITL did not contest the public health messages.

(2.62) ITL then had the chance to tell the Judge about what it did when the suspicion arose of a connection between lung cancer and smoking. Researchers had attempted to cause lung cancer in animals from tobacco smoke, without success. It was right, therefore, for ITL to ‘withhold judgement’ as to whether or not tobacco smoke caused lung cancer.

We are doing quite well – better than I expected. We are about one sixth of the way through the Judgement.

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So there we are then – a couple of pages. Lots more to come. In a strange sort of way, it becomes a bit like Alice in Wonderland. There are lots of ‘Cheshire Cats’ and ‘when I say “Yes” I mean “No”, and stuff. It is all remarkably interesting.

For the life of me, I cannot understand for a moment why tobacco companies have not been screaming the house down about this case.