CLASS PROCEEDING NOTICE

 

TO:     ALL PERSONS IN CANADA WHO CONSUMED THE DIET DRUGS PONDERAL (GENERIC NAME: FENFLURAMINE) AND/OR REDUX (GENERIC NAME:DEXFENFLURAMINE).

 

AND TO:       THE FAMILY MEMBERS OF PERSONS LISTED ABOVE.

 

Notice under the Ontario Class Proceedings Act, 1992

 

If you, or a family member, took the diet drugs known as Ponderal (fenfluramine) or Redux (dexfenfluramine) this notice may affect your rights. Please read this Court-ordered Class Proceeding Notice carefully.

 

A class action lawsuit is currently pending in the Ontario Superior Court of Justice, entitled Sheila Wilson v. Servier Canada Inc., et al., Court File No. 98-CV-158832.  This Notice is directed to all members of the plaintiff class.  This class is defined as:

 

(1)      All persons resident in Canada (excluding Quebec) who were prescribed and ingested the diet drugs marketed under the brand name Ponderal (generic name: fenfluramine) and/or Redux (generic name:dexfenfluramine), these being diet drugs designed, developed, fabricated, manufactured, imported, distributed, marketed, sold or otherwise placed into the stream of commerce in Canada by Servier Canada Inc. and/or Biofarma S.A.; and

 

(2)      All persons including, but not limited to, executors, administrators, personal representatives, spouses and relatives who on account of a relationship to any one or more of those persons described in the above class, have a derivative claim for damages resulting from the treatment with Ponderal and/or Redux.

 

Notice of this lawsuit is given pursuant to the Ontario Class Proceedings Act and by order of the Court to inform members of the class of the Court’s decision to certify the class, the nature of the claims, and class members’ rights with respect to this action.

 

What are Ponderal and Redux?

 

Ponderal and Redux are two drugs which were available by prescription in Canada prior to September 15, 1997.  They were sold as appetite suppressants to assist with weight loss.

 

However, on September 15, 1997, these drugs were voluntarily withdrawn from the market in Canada and the United States. Concerns were expressed that these drugs may create health risks for some people such as Valvular Heart Disease (“VHD”) and the potentially life threatening Primary Pulmonary Hypertension (“PPH”). 

 

In warning consumers not to take Ponderal or Redux, Health Canada issued an advisory on September 15, 1997 which included:

 

“Health Canada urges individuals who may have consumed these products to consult their doctor immediately for appropriate patient follow-up.

 

The first indication of the development of valvular heart disease is usually the occurrence of a new heart murmur (abnormal sound as the blood flows over a valve).  More severe symptoms of the disease include shortness of breath, loss of tolerance to physical activity and fluid retention in the legs and lungs.”

 

 

Nature of the Class Action Claims

 

The representative plaintiff in this action alleges that Ponderal and Redux are defective and cause VHD or PPH.  The relief sought for the class includes: a) damages for personal injury, b) re-imbursement for medical expenses incurred in the diagnosis and treatment of diseases related to the taking of Ponderal and Redux, and c) reimbursement to consumers on the purchase price of these drugs.

 

The defendants, Servier Canada Inc. and Biofarma S.A. deny any wrongdoing in this lawsuit.  They contend the drugs are not defective and do not create any health risks.  Defendants, further, claim that the plaintiffs’ claims are barred by various defences.

 

In certifying this matter as a class action the Court did not decide the merits of the parties’ claims or defences.  The plaintiffs will be required to prove their allegations at a trial on the merits in order to obtain the relief sought.

 

The Common Issues:

 

At present the class action will determine the following issues:

 

(1)      Whether Ponderal and/or Redux can cause Primary Pulmonary Hypertension (“PPH”), valvular heart disease or valvular regurgitation;

(2)      Whether Ponderal and/or Redux are defective or unfit for the purpose for which they were intended as designed, developed, fabricated, manufactured, sold, imported, distributed, marketed or otherwise placed into the stream of commerce in Canada by one or both of the defendants;

(3)      Whether the defendants knowingly, recklessly, or negligently breached a duty to warn or materially misrepresented any of the risks of harm from Ponderal or Redux;

(4)      Whether Biofarma is responsible in law for the acts of Servier Canada Inc. in respect of the sale and marketing of Ponderal and Redux in Canada;

(5)      Whether the defendants negligently misrepresented the safety of the drugs after having received information as to the potential of the drugs to cause serious health effects;

(6)      Whether class members are entitled to special damages for medical costs incurred in the screening, diagnosis, and treatment of diseases related to Ponderal and Redux;

(7)      Whether class members are entitled to equitable relief whereby they are reimbursed for the purchase price of Ponderal or Redux; and

(8)      Whether the class members are entitled to aggravated or punitive damages.

 

Following a determination on the common issues, further stages of litigation may be required.  Stage 2, only if necessary, will involve determining the issue of liability on an individual basis.  Stage 3, again only if necessary, will involve the assessment of damages on an individual basis.

 

Class Membership

 

How to be included in the Class

(a)        If you fall within the class definition set out above, you are automatically a class member, unless you choose to opt out of the Class.  While you do not need to do anything further at this stage to participate in this lawsuit, it is recommended that you contact class counsel to inform them of your desire to participate.  Class counsel can be reached at:

 

                        Rochon Genova

                        Barristers & Solicitors

                        121 Richmond St. West, Suite 903

                        Toronto, ON

                        M5H 2K1

                        Tel: (416) 363-1867

                        Fax: (416) 363-0263

                        www.rochongenova.com

 

Residents of British Columbia may contact:

 

                        Klein Lyons

                        Suite 1100

                        1333 West Broadway

                        Vancouver, B.C.

                        V6H 4C1

                        Tel: (604) 874-7171

                        Fax: (604) 874-7180

                        www.kleinlyons.com

 

How to be excluded from the Class

(b)       If you wish to be excluded from the class, you must fill out the “Opt Out Coupon” below, and send it to Rochon Genova, the lawyers for the Class.  The deadline for opting out is April 30, 2001.  If your written request is not received by Rochon Genova by that date you will remain a member of the Class.

 

ANY JUDGMENT OBTAINED ON THE COMMON ISSUES IN THIS ACTION, WHETHER FAVOURABLE OR NOT, WILL BIND ALL CLASS MEMBERS WHO DO NOT OPT OUT OF THIS ACTION.

 

Class Representation & Financial Consequences

 

The Court has appointed Mrs. Sheila Wilson as the representative plaintiff in this proceeding, and has further appointed the law firm of Rochon Genova as class counsel.

 

The class proceeding shall deal with certain issues common to the lawsuit.  No Class member, other than the representative plaintiff, will be liable for costs with respect to the determination of these common issues.  However, once the Court has determined the common issues, it may be necessary that the individual members of the Class participate in individual proceedings to determine issues which are not common to the Class in order to establish their claim.  If this is necessary, each member of the Class may have to bear costs of such individual proceedings and, if unsuccessful, could be liable to pay a portion of the defendants’ costs incurred with respect to such individual proceedings.

 

Class members may be entitled to receive financial compensation from the defendants if the class action is successful.

 

The representative plaintiff has entered into an agreement with her solicitors whereby fees and disbursements related to the trial of the common issues will be payable only in the event of success in the class action.  Any fees charged by the solicitors for the representative plaintiff must be approved by the Court.

 

Further Information

 

For more information, you may contact class counsel listed above.  Court papers relating to this lawsuit may be viewed at www.rochongenova.com.

 

Please do not contact the Court for information.