THE LAWYERS WEEKLY
MARCH 29 , 2013 q
5
News
Firms join up in pharma case to fight rare mass tort
GEOFF KIRBYSON
A pair of London, Ont., law firms
have banded together to take on
a pharmaceutical giant whose
products were supposed to cure
acne but ended up allegedly
causing inflammatory bowel disease and even perhaps led to
colon cancer.
Harrison Pensa and Legate &
Associates are suing drug
maker Hoffman-La Roche in a
mass tort, a rarity in Canada,
over Accutane, a drug also
known as Isotretinoin.
The lawsuit alleges HoffmanLa Roche manufactured and
marketed the drug for acne without knowing how it worked, and
that it knew it had serious side
effects. It further alleges the company took steps to conceal this
knowledge from physicians and
the public and it failed to research
side effects even while it continued to market the drug.
Accutane has been linked to
depression and other serious side
effects, but the victims who have
approached the two law firms have
inflammatory bowel disease (IBD),
said Dave Williams, co-managing
partner of Harrison Pensa.
“It’s not to say we won’t be contacted by other people, I can tell
you that we have. I’m not going to
rule out a compelling case involving other side effects but the
main focus of our case is the IBD
issue. That’s the case we’re taking
forward right now,” he said.
The London law firms launched
a website eight months ago, www.
accutanelawsuit.ca, that has generated more than 100 calls from
alleged victims, they say.
A mass tort is a large number of
lawsuits targeted at one defendant, just as one might have with a
class action. It’s rarely used in
Canada but, when it is, it’s often
in medical negligence or sexual
abuse cases.
The alleged chronology of using
Accutane is young people take it
for serious cases when nothing
else will get rid of their acne. As
they enter early adulthood, the
symptoms for IBD and other diseases develop.
“These people were not warned
they [could develop] a permanent condition like IBD as a
result of taking Accutane,” Williams said.
The drug was originally patented
as a chemotherapy medication. As
clinical trials progressed, however,
it became apparent that it was
extremely effective for treating
severe forms of acne. After product testing, it was approved by the
Food and Drug Administration in
the U.S. and released to the public
in 1982. It usually took four to six
months of taking the drug for the
acne to be cured.
Inflammatory bowel disease
These people were not
warned they [could
develop] a permanent
condition like IBD
as a result of taking
Accutane.
Dave Williams
Harrison Pensa
includes ulcerative colitis and
Crohn’s disease, which often lead
to surgery to remove the victim’s
colon. They both have been
known to increase the chance of
colon cancer and have devastating effects on a victim’s quality of
life, according to Barbara Legate,
founder of Legate & Associates.
“The surgery is done because
colitis is painful. Your choices of
food are really restricted. People
lose weight because they don’t
want to eat. They’re often put on
very powerful drugs, including
Prednisone, a side effect of which
is deterioration of the hips. They
are awful conditions that have a
lot of negative consequences with
the natural progression of disease
and its treatment,” she said.
One of the plaintiffs in the mass
tort is Jennifer Twamley, 33, who
suffers from ulcerative colitis.
Accutane was prescribed to her as
a 17-year-old in 1996 to control her
acne. Even though she’s a television producer in Toronto now,
her career and lifestyle have been
drastically curtailed. She has
undergone two surgeries, including one to remove her colon.
“It’s been devastating. Having
a chronic illness is isolating,”
she said.
Twamley was not only healthy
when Accutane was prescribed for
her, she was a competitive figure
skater. Within three years of getting her six-month prescription,
she was diagnosed with the disease. Prior to the diagnosis, she
had contemplated going to law
school but because the disease
controls her day, she wasn’t able to
make such a commitment.
“She can make appointments
for the next day but if she has a
flare-up, she can’t go to those
appointments,” Legate says.
Hoffman-La Roche declined to
participate in an interview but it
did release a statement, acknowledging that it has been named as
a defendant in numerous individual and purported class
actions throughout Canada
involving allegations that using
Accutane resulted in IBD and
other injuries.
“Roche takes any and all information about our products seriously. While our sympathies
remain with the plaintiffs over
their IBD, the Company believes
that there is no reliable scientific
evidence that Accutane causes this
disease, and that Roche acted
appropriately in providing information to the medical, scientific
and
regulatory
communities. Roche feels strongly that the
warnings in place when these
plaintiffs took Accutane appropriately described the potential risks
of the Health Canada-approved
medicine and Roche will continue
to vigorously defend these cases,”
the company said.
Legate said it’s particularly sad
that many of the victims took
Accutane when they were kids
because they hated having acne
and didn’t want to be teased or
judged negatively by their friends
and classmates.
“Imagine how powerful the draw
is that it offers the miracle that it
will go away. They won’t think
about the long term,” she said.
And how quickly would parents
agree that their kids should be
given such a drug if they were
told it had been possibly associated with a number of serious
illnesses, including some that can
lead to colon cancer?
“I don’t know a parent that
would expose their child to Crohn’s
disease, or colitis and the attendant risk of colon cancer,” she said.
Twamley is seeking pecuniary
general damages of $5 million,
non-pecuniary general damages of
$750,000, punitive, exemplary and
aggravated damages of $500,000,
special damages of $500,000 and
other damages for her and her parents exceeding $1 million.
Four years ago, Hoffman-La
Roche decided to pull Accutane
from the U.S. market after a
number of juries awarded millions of dollars in damages to
former Accutane users over IBD
claims. It is still available in CanFallout, Page 27
Paul M. Iacono, Q.C.
Hon. Harvey Spiegel, Q.C.
Helen L. Walt
Charles A. Harnick, Q.C.
Douglas F. Cutbush
Margaret K. Rees
Tony Baker
Peter R. Braund
Richard D. McLean, Q.C.
John Beaucage
Cindy Winer-HIIUH\0XVVRQ
To arrange a mediation, arbitration or appraisal,
please call our ADR Coordinator or book online.
(416) 866-2400
130 Adelaide Street West, Suite 701
Toronto, Ontario, M5H 2K4
Fax: (416) 866-2403 | Web: www.yorkstreet.ca
THE LAWYERS WEEKLY
MARCH 29 , 2013 q
27
News
Fallout: Side effects of acne drug at heart of case
Continued from page 5
ada and the U.S., but it is no
longer manufactured by Hoffman-La Roche. It is made by a
number of generic companies
and is known by a variety of
brand names, including Sotret,
Clarus, Amnesteen and Claravis.
Thus far, lawsuits outside of
Canada have focused on the correlations between Accutane and
birth defects, depression and suicide, ulcerative colitis and
Crohn’s disease.
Since it was introduced more
than 30 years ago, it has been
reportedly prescribed to more
than 16 million people worldwide. Several thousand personal
injury lawsuits have been filed
with many more still pending. To
date, the company has paid out
more than $53-million to resolve
the cases.
Williams said the success of these
lawsuits against the drug maker in
the U.S. are “of interest” to him but
he doesn’t take it as a harbinger of
success in any other case.
“It’s a scientific debate, we
know that, and we’re prepared
to have it. The reality is, we have
to prove the case that exists
here and we intend to do that.
It’s a different milieu in Canada.
The fact there have been very
significant jury verdicts against
Roche has to be influential in
Legate
our thinking,” he said.
Williams of Harrison Pensa said
it’s not uncommon for two law
Less: Fee cut to $5 million from $16.9 million
Continued from page 1
awarded in this case given the
work the solicitors actually did
would call into question the
integrity of the profession.”
Justice Goepel’s ruling came in
an appeal by client Kirsten MideWilson from an October, 2011
decision of the registrar of the
Supreme Court of British Columbia in Hungerford Tomyn Lawrenson and Nichols v. Wilson
[2011] B.C.J. No. 2019.
The case revolves around a will
executed in 1994 by Jack Cewe,
who owned and operated a successful paving and construction
company. Under the will, his
estate would pass to his wife (who
died in 2005), then to his only
child (Mide-Wilson’s mother,
who died in 2007), then to his
grandchildren, Mide-Wilson and
her brother (who died in 1998).
As a result, Mide-Wilson would
become the primary beneficiary
after Cewe died in 2008.
However, after the death of his
daughter (the client’s mother), the
businessman executed several
instruments in 2007 and 2008
leaving the bulk of his estate to his
long-time financial adviser and his
long-time companion.
Mide-Wilson retained Hungerford under a contingency fee agreement (CFA) to bring an action to
set aside the instruments. Under
the CFA, if the action were resolved
before Dec. 9, 2009, the solicitors
would be entitled to 20 per cent of
any settlement. If the action
resolved after that, or at a trial, the
solicitors were entitled to a higher
percentage of the recovery.
Before the CFA was signed,
Mide-Wilson had told the solicitors the company had a value in
excess of $100 million.
On July 30, 2009, the litigation
was settled. The financial adviser
and the businessman’s companion accepted $8 million and the
In order to maintain
the integrity of the
legal profession, a legal
account must have
some relationship to
the actual work carried
out. To allow the fees
awarded in this case
given the work the
solicitors actually
did would call into
question the integrity
of the profession.
Justice Richard Goepel
B.C. Supreme Court
balance of the estate, valued at
$84.9 million, was transferred to
Mide-Wilson.
On March 25, 2011, Hungerford issued a bill for $16.9 million. The client then applied
under B.C.’s Legal Profession Act
to have the CFA examined. The
lawyers in turn applied to have
their bill reviewed.
After a 19-day hearing, the court
registrar cut the bill back to $9
million. Mide-Wilson appealed
and the fee was again dropped, to
$5 million, by Justice Goepel.
The judge said there’s a point
when the differential between
work done and fees payable
under a contingency agreement
must be adjusted to maintain the
integrity of the profession.
“In such circumstances, the
terms of the contract must be
sacrificed to insure that the client
pays no more than a proper fee,”
he said.
“An error in quantum can be so
gross as to indicate an error in
principle. I find that has occurred
in this case,” Goepel ruled. “There
must be a relationship between
the legal services actually provided and the ultimate fee.”
The case also broached the
issue of fee caps.
Law Society of B.C. and Canadian Federation of Law Societies past president John Hunter,
who was called an expert witness, suggested that Law Society
rules requiring a lawyer to charge
reasonable fees put a cap on the
fees that the solicitors could
charge regardless of the terms of
the contingency fee agreement.
“He opined that if the contingency fee agreement was cancelled, a proper fee would be in
the $2.5-million range,” Justice
Goepel said.
Lawyer Darrel Roberts also
testified but opposed a cap on
solicitors’ recovery.
He said the case was one where
the client had the ability to pay
fees but chose to finance the litigation with a CFA, putting the risk
on the solicitors.
He suggested the ultimate fee
shouldn’t be under $1 million
less than the $16.9 million that
had been called for under the
agreement. To do otherwise,
Roberts said, would encourage
litigants to abandon agreements
through the courts, a situation he
said was not the object of Legal
Profession Act provisions for
legal fee reviews.
Justice Goepel said the solicitors provided a valuable service
to the client and deserved to be
“handsomely paid.”
“That payment, however, must
reflect the services they actually
provided and cannot be for an
amount that does not maintain
the integrity of the profession,”
he said.
firms to work as one in sophisticated litigation cases where there
is a substantial volume of potential claims and a defendant that
has a lot of resources. “We’re
banding together because we have
different and compatible skills.
Two law firms acting as a single
cohesive team is a way to try to
even out the playing field a little
on the resource side.”
Legate agreed. She said it made
sense for her boutique firm to
join forces with a full-service
firm, combining her team’s personal injury experience and focus
with Harrison Pensa’s history
with large lawsuits and deeppocketed defendants.
These are early days in the case,
however. Williams says both
firms have had communications
from a lot of people who are
working through their individual
assessments. At some point in the
coming weeks or months, both
sides will start exchanging documents and get into the examination for discovery.
“Then we’ll get on with other
things and then a trial, if it’s not
resolved. These things tend to
happen over years, regrettably, not
over weeks or months,” he said.
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