Fleet Phospho-Soda Class Action

Transcription

1 ONTARIO SUPERIOR COURT OF JUSTICE Fleet Phospho-Soda Class Action FLEET PHOSPHO-SODA is an over-the-counter pharmaceutical product which was often directed to be used as part of a bowel cleansing regimen, especially prior to undergoing a surgical procedure such as a colonoscopy. Class action lawsuits were initiated in Ontario, Québec and Saskatchewan alleging that C.B. Fleet Holding Company Inc., C.B. Fleet Company, Inc., and Johnson & Johnson Merck Consumer Pharmaceuticals of Canada (the "Defendants") negligently manufactured, marketed and sold FLEET PHOSPHO-SODA in Canada without properly warning of alleged risks of kidney damage. The Defendants deny the plaintiffs' allegations and deny any wrongdoing or liability. The court has not taken any position as to the truth or merits of the claims or defences asserted by either side. The allegations made by the plaintiffs have not been proven in court. If you or a family member ingested FLEET PHOSPHO SODA and developed kidney damage, you may be entitled to compensation. A Settlement Agreement has been reached and approved by the Court and the claim period has started to run. If you or someone close to you used FLEET PHOSPHO SODA, you should immediately review the full legal notice in this matter to ensure you understand your legal rights. A copy of the full legal notice can be viewed at (English and French), or can be obtained from contacting Class Counsel as listed below or by contacting the Claims Administrator. The settlement is for approximately $11,995, It is not possible at this time to estimate what level of compensation any one particular Eligible Claimant may receive. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT Submit a Claim Form Exclude Yourself (Opt-Out) Do Nothing This is the only way to request payment You will receive no payment, but will retain your right to take part in any other lawsuit against the Defendant Receive no payment and give up your right to be part of any other lawsuit against the Defendant

2 CONTENTS BASIC INFORMATION What is the lawsuit about? 2. Why is this a class action? 3. Why is there a settlement? WHO IS INCLUDED IN THE SETTLEMENT? a) How do I know if I am part of the Class or eligible for settlement benefits? b) I used Fleet Phospho-Soda prior to a colonoscopie, am I eligible? 5. What injuries are compensable? 6. What are primary, representative, and derivative Claimants? THE SETTLEMENT BENEFITS WHAT DO YOU GET? What does the Settlement provide? 8. What can I get from the Settlement? HOW TO GET A PAYMENT SUBMIT A CLAIM FORM How can I get a payment? 10. What rights am I giving up to receive payment or stay in the Class? HOW TO REQUEST EXCLUSION FROM THE CLASS How do I remove myself from the Class and Settlement? 12. If I exclude myself, what rights do I retain? THE LAWYERS REPRESENTING YOU Do I have a lawyer in this case? 14. How will the lawyers be paid? IF I DO NOTHING What happens if I take no further action at all? GETTING MORE INFORMATION Is there more information available? Page 3 Page 4 Page 6 Page 6 Page 7 Page 2

3 BASIC INFORMATION 1. WHAT IS THE LAWSUIT ABOUT? The Plaintiff alleged that C.B. Fleet Holding Company Inc., C.B. Fleet Company, Inc., and Johnson & Johnson Merck Consumer Pharmaceuticals of Canada (the "Defendants") negligently manufactured, marketed and sold FLEET PHOSPHO-SODA in Canada without properly warning of alleged risks of kidney damage. The Defendants deny the plaintiffs' allegations and deny any wrongdoing or liability. The court has not taken any position as to the truth or merits of the claims or defences asserted by either side. The allegations made by the plaintiffs have not been proven in court. 2. WHY IS THIS A CLASS ACTION? In a class action, one or more individuals, sometimes referred to as class representatives or named plaintiffs, sue on behalf of other individuals who have similar claims against the defendant. All of these individuals together make up the class or class members in the action. One court resolves the issues for the entire class, with the exception of those individuals who request exclusion from the class. 3. WHY IS THERE A SETTLEMENT? In order to avoid the high costs of a trial and provide compensation to the affected individuals, both parties agreed to a settlement. The Court did not decide in favour of Plaintiff or the Defendant. The Class Representative and Class Counsel believe that the Settlement is fair, reasonable and in the best interest of everyone who may have been affected. Page 3

4 WHO IS INCLUDED IN THE SETTLEMENT? 4. a) HOW DO I KNOW IF I AM PART OF THE CLASS OR ELIGIBLE FOR SETTLEMENT BENEFITS? Class Members are defined as: (a) All persons resident in Canada, including their estates, who purchased, used or ingested Fleet Phospho-soda; and (b) All persons who by virtue of a personal relationship to one or more of such persons described in (a) above have standing in this action pursuant to section 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, as amended (or equivalent derivative or direct claim by statute or common law in other provinces or territories). 4. b) I USED FLEET PHOSPHO-SODA PRIOR TO A COLONOSCOPY, AM I ELIGIBLE? Fleet Phospho-Soda was commonly prescribed to many persons prior to a colonoscopie. Simply having taken Fleet Phospho-Soda does not mean that a person is necessarily a class member. To be eligible, a person must have consumed over 45ml of Fleet within 24 hours prior to March 5, 2009 and suffered an injury, which is compensated under Schedules B and E of the Settlement Agreement, such as: chronic kidney disease with a GFR 59 or below, renal transplant, long term / permanent dialysis, or wrongful death. 5. WHAT INJURIES ARE COMPENSABLE? For detailed information on qualification, please see Schedules B and E of the Settlement Agreement. 6. WHAT ARE PRIMARY, REPRESENTATIVE, AND DERIVATIVE CLAIMANTS? A Primary Claimant is any resident of Canada who ingested Fleet Phospho-soda during the class period (any time prior to March 5, 2009). A Representative Claimant is any personal representative, heir, assign or trustee of a Primary Claimant. A Derivative Claimant is any resident of Canada asserting a right in this Settlement Agreement by reason of their familial relationship with the Primary Claimant, including without limitation, spouses, common-law spouses, same-sex partners, parents, or children by birth, marriage or adoption. Page 4

5 THE SETTLEMENT BENEFITS WHAT DO YOU GET? 7. WHAT DOES THE SETTLEMENT PROVIDE? The Defendants, while not admitting liability, will pay a sum of approximately $11,995, to settle the claims of all Class Members. The size of compensation payable to Eligible Claimants will be based on the total number of approved claims and the severity of injuries. Provincial Health Insurers will share a fund of $1,800, which shall be in full satisfaction of medical services provided or to be provided to Eligible Primary Claimants. 8. WHAT CAN I GET FROM THE SETTLEMENT? A more detailed breakdown of the benefits and eligibility criteria as well as additional details about the Settlement are contained in the Settlement Agreement at HOW TO GET A PAYMENT SUBMIT A CLAIM FORM 9. HOW DO I RECEIVE PAYMENT? To receive compensation, you must complete and submit a Claim Form. You can submit a Claim Form by mail or by visiting The attached Claim Form and Claim Form Instructions describe what documentation you must provide to prove your claim and receive payment. Please read the instructions carefully, fill out the Claim Form, and submit it online, or mail it postmarked no later than September 22, 2011 to the address on the form. 10. WHAT RIGHTS AM I GIVING UP TO RECEIVE PAYMENT OR STAY IN THE CLASS? Unless you request exclusion from the Class, you will be part of the Class, and that means that you can t sue, continue to sue, or be part of any other lawsuit against the Defendants about the legal issues in this case. It also means that all of the Court s orders will apply to you and legally bind you. If you sign the claim form, you will agree to the Release of Claims attached to the claim form, which describes exactly the legal claims that you are giving up if you get settlement benefits. HOW TO REQUEST EXCLUSION FROM THE CLASS 11. HOW DO I REMOVE MYSELF FROM THE CLASS AND SETTLEMENT? If you don t want to be legally bound by the settlement, you must request exclusion, or opt out, by July 25, If you do not opt out by this deadline, you won t be able to start a lawsuit against the Defendants on your own about the legal claims in this case. If you would like to opt out, please fill out the attached Opt Out Form and return it the address provided.

6 Class Members wishing to request exclusion, or opt out of the Class, must do so by July 25, Any individuals who do not opt-out are barred from commencing an action against the Defendant at a later time concerning the legal claims in this case. 12. IF I EXCLUDE MYSELF, WHAT RIGHTS DO I RETAIN? If you opt out, you will not receive any benefits from the Settlement, however you will retain your right start a lawsuit against the Defendants on your own about the legal claims in this case. 13. DO I HAVE A LAWYER IN THIS CASE? THE LAWYERS REPRESENTING YOU Class Members are represented by the law firm of Siskinds LLP. The firm is located at 680 Waterloo Street, London, Ontario N6A 3V8. If you have specific questions for Class Counsel, they can be reached by telephone at (800) x7782. Information about the firm is also available at You will not be charged for the services of Class Counsel. However, if you wish to be represented by your own counsel, you may hire a lawyer at your own expense. 14. HOW WILL THE LAWYERS BE PAID? Once the Claims Deadline has passed, Class Counsel will seek court approval of legal fees not to exceed 25% of the total settlement benefits plus disbursements and applicable taxes. Class Counsel were retained on a contingent basis. Class Counsel were responsible for funding all disbursements incurred in pursuing this litigation. Claimants are not responsible for any legal fees incurred to date. Claimants may, but are not obliged to retain their own lawyers to assist them in making individual claims under the Settlement Agreement but they may not find it necessary to do so. Submitting a claim under the Settlement Agreement is considerably less complex and less expensive than pursuing an individual lawsuit. In the event that Claimants feel they require the assistance of a lawyer in making their claim, they will be responsible to pay the legal fees of any lawyer they retain to prepare their claim. IF I DO NOTHING 15. WHAT HAPPENS IF I TAKE NO FURTHER ACTION AT ALL? If you do nothing, you will not receive compensation from this Settlement. In addition, unless you exclude yourself, you won t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Defendants about the legal issues in this case. Page 6

7 GETTING MORE INFORMATION 16. IS THERE MORE INFORMATION AVAILABLE? For more information, visit or contact the Administrator at the address listed below. NPT RicePoint Class Action Services P.O. Box 3355 London, Ontario N6A 4K3 Toll Free: (866) Page 7