The Ontario Superior Court has approved a $14.75 million class-action settlement over claims that manufacturers and marketers of certain antipsychotic drugs failed to adequately warn users that their use could increase the risk of compulsive behaviors, including compulsive gambling and hypersexuality.
In Kirsch v. Bristol Myers Squibb, 2024 ONSC 7191, released on Dec. 23, Justice Edward Morgan found that the settlement was in the best interests of the class despite an objection from a class member who claimed that she would be undercompensated under the agreement.
“I am convinced that after eight years of difficult litigation and two years of negotiation, the class overall has gotten the most it could get for the class overall. Any one class member might ultimately get more by litigating on their own, but I am not inclined to impose that risk on the entire class,” the judge wrote.
The class action, which was commenced in 2016, concerned the antipsychotic drugs Abilify and Abilify Maintena. The representative plaintiffs, Matthew Kirsh and Gayle Kirsh, contended that in some people the two products caused various compulsive behaviours, including compulsive gambling, hypersexuality, compulsive shopping and binge eating.
The claim alleged that the defendant pharmaceutical companies, Bristol-Myers Squibb, Otsuka Pharmaceuticals and Lundbeck, failed to conduct adequate pre- and post-marketing research and testing and failed to warn class members of the risks of compulsive behaviour that accompany use of the pharmaceuticals.
In September 2024, the parties reached a settlement agreement that provides for the creation of a $14.75 million settlement fund to be used to compensate class members who suffered adverse reactions to the medications, as well as certain family class members.
It also provided for $386,750 to be paid to settle the claims of public health insurers.
Under the agreement, class members will be entitled to compensation under one of the categories of psychological harm, residual catastrophic injury and financial loss. Compensation for psychological harm and residual catastrophic injury ranges from $3,246 to $85,000 per person.
The residual catastrophic injury category includes HIV infection and other incurable sexually transmitted infections caused by hypersexuality, along with attempted suicide and hospitalization caused by compulsive behaviours.
The specific amount of compensation that each class member will receive may be adjusted upward or downward based on the number of claims submitted to the claims administrator.
One class member who objected to the settlement, Siobhan Snyder, claimed that her behavioural changes while taking the relevant medication led to her becoming pregnant and giving birth to a daughter. She submitted that this has imposed a heavy cost burden on her and her parents, who had to forego their retirement to assist her in caring for their grandchild.
She argued that she was being undercompensated in light of the fact that the defendants are extremely profitable companies.
Justice Morgan noted that while he was not in a position to undertake an actual assessment of Snyder’s case on the motion for approval, her circumstance suggested that she may have a strong claim for compensation for the ‘wrongful birth’ of her child.
He further observed that Snyder had been informed that she still had until the end of the day of the hearing to opt out of the settlement and commence her own individual action.
“It may be that Ms. Snyder, and perhaps others in equivalent circumstances, are indeed undercompensated by the settlement proposal. But there are trade-offs to a class action, one of which is that she and the other class members have not had to litigate this case on their own,” the judge wrote.
The judge observed that while any one class member might ultimately get more by litigating on their own, he was not inclined to impose that risk on the entire class.
After considering factors including litigation risk, future expenses, recommendation of experienced counsel and the settlement terms, the judge concluded that the settlement package was reasonable.
The court also approved class counsel fees of $4.43 million plus disbursements and applicable taxes, noting that the fees reflected that class counsel have worked on behalf of the class for eight years without being paid.
The court also approved an honoraria of $10,000 to five representative plaintiffs.
“After over eight years of hard-fought litigation and appeals in this class action, the settlement agreement provides compensation and finality for extremely vulnerable class members who have experienced serious and, in certain cases, irreparable harm from engaging in compulsive behaviours,” said class counsel Sarah Fiddes of Rochon Genova LLP.
Joel Rochon and Golnaz Nayerahmadi of Rochon Genova LLP also acted as class counsel.
Counsel for the defendants were Randy Sutton of Norton Rose Fulbright, Gordon McKee and Robin Linley of Blake, Cassels & Graydon LLP and Frank McLaughlin of McCarthy Tétrault. They were not immediately available for comment.
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