In some cases, taking the drug has resulted in compulsive behaviour.
“ABILIFY was introduced to the Canadian market in September 2009. It is approved for use in the treatment of schizophrenia, manic episodes associated with bipolar disorder, and as an adjunctive treatment for major depressive disorder,” explained Justice Edward Morgan in Kirsch v. Bristol Myers Squibb, 2024 ONSC 7191. “ABILIFY MAINTENA is approved for use in the treatment of schizophrenia and as a maintenance therapy following remission of bipolar disorder.”
The settlement was for all individuals who were prescribed and took the drug Abilify before Feb. 23, 2017 or received injections of Abilify Maintena between Feb. 6, 2014 and Dec. 16, 2016, their family members and estates.
The individuals in the class were said to have “experienced compulsive behaviours and impulse control disorders, namely compulsive gambling, hypersexuality, compulsive shopping/spending and binge-eating.”
Defendants in the case were the pharmaceutical companies responsible “for the development, market approval, research, testing, manufacture and distribution of ABILIFY® and ABILIFY MAINTENA® in Canada.” The suit alleged that the companies did not conduct adequate pre- and post-marketing research and testing and also failed to warn class members of the risks associated with compulsive behaviour that may occur after taking the medication.
The settlement provides that $14,750,000 will be used to pay compensation for approved claims, $368,750 will be used to satisfy claims of public health insurers and the costs of notice and administration. Class counsel legal fees amounted to $5,350,697, along with disbursements and taxes. Claims administrator MNP Ltd. was appointed.
Many compensation categories were created for psychological harm, residual catastrophic injury and financial loss. For the first two categories, compensation would range from $3,246 to $85,000 per person, subject to any adjustments. The residual catastrophic injury category includes HIV infection and other incurable STIs that were caused by hypersexuality, as well as attempted suicide and hospitalization caused by compulsive behaviours.
For psychological harm, subcategories of mild, moderate and severe were created, based on the duration of use, length of time compulsive behaviours were experienced or their severity, and the presence of serious consequences of those behaviors, which could include divorce, bankruptcy, re-mortgaging of a property and/or criminal prosecution for fraud and theft.
“The Courts have not made any determination of the merits of the claims,” said class counsel Rochon Genova LLP in a statement. “The Settlement is a compromise of disputed claims and is not an admission of liability or wrongdoing of the Defendants.”
“It is fair to say that the litigation has been hard fought,” said Justice Morgan in the decision. “The certification motion argued in March 2020 was accompanied by a motion to stay the action on the basis of there having already been a national class action authorized in Quebec. The stay motion was dismissed simultaneously with certification being granted, followed by lengthy appeal processes for both decisions.”
Class members must submit a completed claim form by Nov. 12. The firm noted that not all class members will be eligible for compensation. The class was also represented by Consumer Law Group.
If you have information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Anosha Khan at anosha.khan@lexisnexis.ca or 905-415-5838.