NO.
VANCOUVER REGISTRY
BETWEEN:
TIMOTHY MOORLEY
AND:
PFIZER CANADA INC. and PFIZER INC.
1. The Plaintiff, TIMOTHY MOORLEY, is a dangerous goods handler and professional boxer who resides at **, in the City of Surrey, in the Province of British Columbia.
2. The Defendant PFIZER CANADA INC. is a federal corporation with its registered head office at 17300 Trans Canada Highway, Kirkland, Quebec. This Defendant is registered extraprovincially pursuant to the provisions of the Business Corporation Act in British Columbia under number A0060723 and has its mailing and delivery address in this province at 2700 – 700 West Georgia Street, Vancouver, British Columbia. At all material times, Pfizer Canada Inc. was involved in, and/or responsible for, the sales, distribution and marketing of Celebrex in British Columbia.
3. The Defendant PFIZER INC. is a corporation incorporated pursuant to the laws of the State of Delaware, one of the states of the United States of America, with its registered head office located at 235 East 42nd Street, New York, in the State of New York.
4. At all material times Pfizer Canada Inc. was an affiliate of Pfizer Inc.
5. At all material times Pfizer Inc. was involved in, and/or responsible for, the research, development, manufacture, sales, distribution and/or marketing of Celebrex in Canada on its own or indirectly through Pfizer Canada Inc.
6. The business of each of the Defendants is inextricably interwoven with that of the other and each is the agent of the other for the purposes of the manufacture, marketing, sales and/or distribution of Celebrex in Canada.
7. In bringing this action on behalf of a class of people in British Columbia who were prescribed Celebrex, to be further defined in the motion for certification, the Plaintiff pleads and relies upon the provisions of the Class Proceedings Act, R.S.B.C. 1996. c. 50 and amendments thereto.
8. Celebrex is a nonsteroidal, anti-inflammatory drug, specifically a COX-2 inhibitor, which is prescribed to relieve pain and swelling. It is typically used to treat arthritis, acute pain, acute migraine headaches, and menstrual pain and discomfort.
9. Celebrex was first approved for marketing and sale in Canada in or about April 1999. The Defendants immediately and heavily promoted Celebrex as a better option than other drugs used for treating arthritis on the premise that it was easier on the stomach.
10. Since its introduction into the Canadian market, sales of Celebrex in Canada have been strong and account for millions of dollars of sales annually.
11. Celebrex has been associated with an increased risk of serious adverse cardiovascular complications, including but not limited to, heart attack, stroke, angina pectoris, atrial fibrillation, bradycardia, hematoma, irregular heartbeat, palpitation, premature ventricular contraction, tachycardia, venous insufficiency, cerebrovascular accident, congestive heart failure, deep venous thrombosis, pulmonary embolism, transient ischemic attack, unstable angina, and occlusion.
12. The Defendants knew or ought to have known at least as early as 2000 that there was a significant risk of serious adverse cardiovascular complications from ingesting Celebrex. The Defendants failed to apprise the Plaintiff or his physicians of that risk.
13. In April 2002 Health Canada issued conditional approval for the sale of 400 mg. doses of Celebrex.
14. In December of 2004, Health Canada revoked approval of Celebrex for certain conditions and advised that patients who were on long term 400 mg. daily doses should look for alternate medications.
15. In March of 2003, while actively training young boxers, the Plaintiff experienced muscle cramps in his calves and feet. In or about August 2003, his physician prescribed Celebrex which he consumed daily thereafter until the end of August 2004.
16. Early in 2004, the Plaintiff developed extreme weakness and pain in his right leg and foot. On or about May 17, 2004, the small toe of the Plaintiff’s right foot was amputated. During the next four months, his condition did not improve but, rather, deteriorated and he developed gangrene in his right lower leg and foot. On July 11, 2004, he underwent further surgery to remove a blood clot from his right leg and to rebuild the vein which had been damaged.
17. The conditions and events described in the preceding paragraph were caused or contributed to by the Plaintiff’s use of Celebrex.
18. The Plaintiff has not fully recovered from his injuries and it is not expected that he will make a full recovery.
19. The Defendants at all material times owed a duty of care to the Plaintiff to:
(a) ensure that Celebrex was fit for its intended or reasonably foreseeable use;
(b) conduct appropriate testing to determine whether and to what extent ingestion of Celebrex posed serious health risks, including the risk of serious adverse cardiovascular complications; and
(c) warn the Plaintiff and his physicians that ingestion of Celebrex carries the risk of serious adverse cardiovascular complications.
20. The Defendants negligently breached their duty of care.
21. The Plaintiff states that his damages were caused by the negligence of the Defendants. Such negligence includes but is not limited to the following:
(a) the Defendants failed to ensure that Celebrex was not dangerous to recipients during the course of its use and that the drug was fit for its intended or reasonably foreseeable use;
(b) the Defendants failed to adequately test Celebrex in a manner that would fully disclose the magnitude of the risks associated with its use, including but not limited to the risk of serious adverse cardiovascular complications;
(c) the Defendants failed to give Health Canada complete and accurate information;
(d) the Defendants failed to conduct any or any adequate follow-up studies on the efficacy and safety of Celebrex;
(e) the Defendants failed to provide the Plaintiff and his physicians with any adequate warning of the risks associated with ingesting Celebrex, including but not limited to the risk of serious adverse cardiovascular complications;
(f) the Defendants failed to provide the Plaintiff and his physicians with any or any adequate information and warnings respecting the correct usage of Celebrex;
(g) the Defendants failed to provide any or any adequate updated and current information to the Plaintiff and his physicians respecting the risks and efficacy of Celebrex as it came available from time to time;
(h) the Defendants failed to provide warnings of the potential hazards of ingesting Celebrex on package labels;
(i) The Defendants failed to provide warnings of the risks associated with Celebrex, including the risk of serious adverse cardiovascular complications, on the customer information pamphlets in Canada;
(j) the Defendants failed to warn the Plaintiff and his physicians about the need for comprehensive regular medical monitoring to ensure early discovery of potentially fatal adverse cardiovascular complications from the use of Celebrex;
(k) the Defendants, after becoming aware of problems with Celebrex as early as 2000, failed to issue adequate warnings, timely recall the drug, publicize the problem and otherwise act properly and in a timely manner to alert the public, including warning the Plaintiff and his physicians of the drug’s inherent dangers, including but not limited to the danger of serious adverse cardiovascular complications;
(l) the Defendants failed to establish any adequate procedures to educate their sales representatives and prescribing physicians respecting the correct usage of Celebrex and the risks associated with the drug;
(m) the Defendants represented that Celebrex was safe and fit for its intended purpose and of merchantable quality when they knew or ought to have known that these representations were false;
(n) the Defendants misrepresented the state of research, opinion and medical literature pertaining to the purported benefits of Celebrex and its associated risks, including the risk of serious adverse cardiovascular complications;
(o) the misrepresentations made by the Defendants were unreasonable in the face of the risks that were known or ought to have been known to the Defendants;
(p) the Defendants failed to timely cease the manufacture and/or distribution of Celebrex when they knew or ought to have known that this drug caused or could cause serious adverse cardiovascular complications;
(q) the Defendants actively encouraged and/or affirmatively failed to take effective steps to discourage aggressive dispensation of Celebrex;
(r) the Defendants breached other duties of care to the Plaintiff and the class of Plaintiffs, details of which breaches are known only to the Defendants.
22. The risks associated with the ingestion of Celebrex, including the risk of serious adverse cardiovascular complications, were in the exclusive knowledge and control of the Defendants. The extent of the risks was not known and could not have been known to the Plaintiff. The likelihood that the Plaintiff has or will sustain an adverse cardiovascular complication would not have occurred but for the negligence of the Defendants in failing to ensure that Celebrex was safe for use or, in the alternative, for failing to provide an adequate warning of the risks associated with Celebrex to the Plaintiff and to the Plaintiff’s physicians.
23. In its sales brochures, advertisements and other forms of representations to the public, the Defendants made statements that had the capability, tendency or effect of deceiving or misleading consumers which constituted deceptive and unconscionable acts and the Plaintiff pleads and relies upon the provisions of the British Columbia Business Practices and Consumer Protection Act, SBC 2004.
24. As a result of the conduct of the Defendants as hereinbefore set out, the Plaintiff and other proposed class members have, and will continue to incur, medical expenses, home care expenses, loss of income, loss of opportunity, pain and suffering, and an inability to enjoy their lives.
25. The conduct of the Defendants as hereinbefore set out showed reckless disregard for the well being of the public, the Plaintiff and members of the potential class. The Defendants’ negligence was callous and arrogant and offends the ordinary community standards of moral and decent conduct. The actions, omissions, or both, of the Defendants involved such want of care as could only have resulted from actual conscious indifference to the rights, safety or welfare of the Plaintiff and all other members of the proposed class and the Plaintiff on his own behalf and on behalf of all proposed class members hereby claims for aggravated and punitive damages.
WHEREFORE the Plaintiff claims on his own behalf and on behalf of members of the proposed class as follows:
(a) General damages;
(b) Aggravated damages;
(c) Punitive damages;
(d) Special damages;
(e) Costs;
(f) Interest pursuant to the Court Order Interest Act, and
(g) Such further and other relief as to this Honourable Court may seem just.
PLACE OF TRIAL: VANCOUVER, BRITISH COLUMBIA.
DATED at the City of North Vancouver, in the Province of British Columbia, this 24th day of January, 2005.
Kenneth J. Baxter
Solicitor for the Plaintiff
THIS STATEMENT OF CLAIM is filed by KENNETH J. BAXTER, of the law firm of POYNER BAXTER, Barristers & Solicitors, whose place of business and address for delivery is: Lonsdale Quay Plaza, #408 – 145 Chadwick Court, North Vancouver, B.C. V7M 3K1 – Telephone: 604-988-6321 – Fax: 604-988-3632