The Plaintiff, TINA KATHERINE BEER, is a Businesswoman, whose
address is 4922 Martin Court, in the Municipality of West Vancouver, in the
Province of British Columbia.
The Defendant, GLAXOSMITHKLINE INC., (hereinafter referred to as
“GSK”) is an Extra-Provincial company duly registered in the Province of
British Columbia under number A0056297 and has its head office in British
Columbia at c/o Blake Cassels & Graydon LLP, 2600 Three Bentall Centre, P.O.
Box 49314, 595 Burrard Street, Vancouver, British Columbia.
GLAXOSMITHKLINE is a multi-national corporation created in
December of 2000 as a result of the merger of Glaxo Wellcome and Smithkline
Beecham. GSK and its parent organization research, design, manufacture
and market pharmaceutical products.
One of the drugs manufactured by GSK is called Paxil (genetically known
Paxil is in a class of drugs called
“selective serotonin reuptake inhibitors” or “SSRI’s” and is
widely prescribed by physicians to treat depression, anxiety disorder, obsessive
compulsive disorder, post-traumatic stress and generalized anxiety disorders.
The Plaintiff was originally prescribed Paxil in the month of April 2000
by her family physician. In the
month of August 2000, the Plaintiff attempted to discontinue use of Paxil with
her doctor’s approval. Upon
initial termination of the Paxil she experienced severe flu like symptoms
including stomach pain, severe headaches, body aches, chills, fever and bloated
stomach. In addition to which she
experienced severe dizzy spells, was photo sensitive and experienced vertigo.
Neither she, nor her doctor realized that she was suffering from Paxil
withdrawal and was inappropriately treated for a non-existent kidney infection
with antibiotics. She was then wrongly diagnosed to have either an appendix or
gallbladder problem. Eventually she
was advised to go back on the Paxil, which she did and she immediately
experienced the cessation of the above-described symptoms.
In the month of February 2001 the Plaintiff again stopped taking Paxil
and immediately experienced the return of the above-described symptoms and was
forced to go back on the Paxil.
In the month of July 2001 the Plaintiff tapered off her use of Paxil in
an attempt to wean herself of the drug over a two month period.
The Plaintiff experienced hysteria, suicidal thoughts, shaking, electric
zaps throughout her body, insomnia, nausea, headaches, high fever, chills,
diarrhea, memory loss and lack of concentration.
This is a class action on behalf of all individuals in the Province of
British Columbia who were prescribed and took the drug Paxil which at all
material times hereto has been and continues to be
manufactured, marketed and distributed by
GSK, and who experienced dependency/withdrawal reactions.
Thousands of Paxil users suffered dependency/withdrawal reactions. The pain and suffering experienced by each of these
individuals is a direct result of the Defendant’s failure to warn users of
Paxil’s addictive nature, the drug’s inducement of physical and
psychological dependency, and its infliction of dependency/withdrawal reactions
when the patient’s Paxil dosage is reduced or terminated. Paxil has caused some people who take it to experience
serious and unexpected withdrawal reactions.
These reactions are “unexpected” to the victims and even their
physicians because the manufacturer has deliberately failed to properly warn of
this. Both physician and patient
unwittingly use Paxil without knowing the drug’s addictive traits.
The Plaintiff and members of the Plaintiff Class were never informed
before starting Paxil that it was addictive, that it induced dependency, or that
it caused withdrawal reaction when dosage was reduced or terminated.
Paxil creates both physical and psychological dependency and, because GSK
has suppressed the information about the severe withdrawal reaction caused by
its drug, many patients and their physicians are fooled into thinking that the
withdrawal reactions the patients are experiencing are caused by another
condition (such as kidney infection), thus promoting further incorrect and
unnecessary medical treatment, including increased dosages of Paxil. Some of the Class Members remain on Paxil today because they
have become dependent and feel they cannot get off the drug.
GSK has known for years the distinct characteristics of Paxil which make
it prone to cause dependency/withdrawal reactions
after its use is discontinued.
The Plaintiff brings this action on behalf of herself and all others
similarly affected, as members of the proposed Class, defined as follows:
“All British Columbia residents who have suffered, are suffering, or
will suffer from dependency/withdrawal reactions following reduction or
termination of their Paxil dosage.”
The members of the proposed Class number in at least thousands.
As a result, the Class is so numerous that joinder in a single action is
impracticable. However, each Class
member should be readily identifiable from information and records available to
Individual members of the proposed Class do not have a significant
interest in individually controlling the prosecution of separate actions, and
individualized litigation would also present the potential for varying,
inconsistent, or contrary judgements and would magnify the delay and expense to
all parties to the court system resulting from multiple trials of the same
factual issues. The cost to pursue
individual action would effectively deny individuals access to the court.
There is a well defined list of common questions of law and fact. These
common legal and factual questions do not vary from one Class member to another,
and may be determined without reference to the individual circumstances of Class
members. These include, but are not
limited to, the following:
Whether GSK properly and adequately warned the
Plaintiff and proposed Class members that Paxil can
cause dependency/withdrawal reactions.
Whether GSK properly and adequately warned physicians in British Columbia
that Paxil can cause dependency/withdrawal reactions.
Whether GSK over-promoted its drug Paxil to such an extent that any
warnings it may have given regarding dependency/withdrawal reactions were
Whether GSK wrongly asserted in its advertising material that Paxil was
non-addictive and not habit forming.
Whether the drug Paxil is addictive and does cause dependency/withdrawal
The claim of the Plaintiff is typical of the Class. The Plaintiff and the
proposed Class members were uninformed of the hazards in reducing or terminating
their Paxil dosage. The Plaintiff
says, and the fact is, that she and the members of the proposed Class
experienced one or more of the following dependency/withdrawal reactions upon
cessation or reduction of their Paxil dosage:
Jolting electric “zaps”.
Memory and concentration difficulties.
Ataxia, and/or myalgia.
Each patient victim and potential Class member on the cessation of Paxil
became very ill without realizing the cause of their distress.
Severe physical and psychological anguish developed and persisted.
Typically, the patient went to see his/her physician, who, ignorant of
Paxil’s withdrawal inducing traits, started down an erroneous path to diagnose
the problem. This included
suggesting unnecessary tests and diagnoses, including “relapse”, which in
the physicians’ mind warranted an increase of Paxil dosage – thus
compounding the problem. The
physician, in many instances, was the last person to acknowledge that Paxil
withdrawal was in fact the culprit behind the patient’s suffering.
As a result, the patient’s pain and suffering and resulting
disabilities were prolonged, often lasting weeks, even months.
Some patients, after a lengthy regime of gradually tapering down their
Paxil dosage, were successful in completely weaning themselves off the drug.
Some patients remain on Paxil today because they are “hooked” on the
drug and feel they cannot get off of it. The
only difference among Class members is the amount of damage sustained, which can
be readily determined, and does not bar class certification.
The Plaintiff will fully and adequately protect the interests of the
proposed Class, and have retained class counsel who are experienced and
qualified in prosecuting class action complex litigation.
Neither the Plaintiff nor her solicitors have interests which are
contrary to, or conflicting with those of the proposed Class.
GSK knowingly and deliberately promoted the use of Paxil as a
non-addictive drug to physicians and the general public when it knew, or ought
to have known, that patients would become addicted to the use of Paxil and that
the cessation of Paxil use would cause the patient to experience severe
dependency/withdrawal reactions as
In reliance on the misrepresentation of GSK the Plaintiff and Class
Members were induced to purchase and use Paxil.
If the Plaintiff and Class Members had known the true facts and the facts
concealed by GSK, the Plaintiff and Class Members would not have used Paxil.
The reliance of the Plaintiff and Class Members upon GSK’s
misrepresentations was justified because such misrepresentations were made and
conducted by GSK who was in a position in which it knew or ought to have known
the true facts.
The Plaintiff and Class Members say that GSK’s misrepresentations as to
the addictive nature of Paxil are unlawful and deceptive trade practices. Specifically, the Plaintiff and the Class Members say that
GSK is in violation of Section 52 (1) of the Competition Act and that
thereby the Plaintiff and the Class Members are entitled to damages.
GSK’s failure to provide physicians and the public with sufficient and
adequate notice of the addictive nature of Paxil was negligent.
GSK actively deceived the Plaintiff and potential Class members by
representations in written labeling, oral communications and television
advertising suggesting that Paxil is not addictive, that it does not cause
physical or psychological dependency, and that it would not cause
dependency/withdrawal reactions if dosage was reduced or terminated.
GSK used false and misleading techniques to hide the linkage between
dependency/withdrawal reactions on one hand, and Paxil on the other.
After censoring the word “withdrawal” from company files and
instructing its agents similarly, GSK began to dilute the medical vocabulary by
using misleading medical terms to substitute for withdrawal such as
GSK over promoted Paxil in order to increase its sales at the expense of
revealing the truth about the addictive/dependency nature of Paxil.
GSK deliberately and falsely conveyed to all healthcare providers in
British Columbia that Paxil side effects were only “mild” when in fact GSK
knew many of the drug’s withdrawal side effects were severe.
As a result of GSK’s acts and omissions it has deceived the medical
community, including the Plaintiff’s physicians, into believing Paxil does not
have addictive qualities and does not cause dependency/withdrawal reactions
which GSK knows it in fact does.
The said representations were made by GSK when it knew those
representations to be false, or in the alternative, willfully and wantonly and
recklessly disregarded whether the representations were true.
These representations were made by GSK with the intention of deceiving
the public in general and the medical community and to induce the medical
community to recommend and prescribe Paxil and to induce
the public to take it.
GSK impliedly warranted that Paxil was of merchantable quality and safe
and fit for its intended and foreseeable uses.
GSK breached this implied warranty because Paxil was not, and is not, of
merchantable quality or safe for its intended use.
The Plaintiff and Class Members plead and rely upon the Sale of Goods
Act R.S.B.C. 1996, s. 18.
At the time the aforesaid representations were made by GSK and at the
time the Plaintiff ingested Paxil, both the Plaintiff and her prescribing
physician were unaware of the falsity of the said representations and reasonably
relied upon the GSK’s assertions, promulgated through its aggressive sales
force to the medical community that the drug was safe.
In reliance upon the said representations the Plaintiff’s physician did
prescribe Paxil and the Plaintiff was induced to, and did take Paxil.
Had the Plaintiff known of the actual dangers of Paxil through her
physician or otherwise, she would not have ingested Paxil.
GSK’s motive of deliberately failing to advise physicians and the
public of the adverse effects that can lead to withdrawal problems was for
financial gain and its fear that, if properly labeled, Paxil would lose its
share of the SSRI market through the efforts of competing manufacturers who
would adversely compare GSK’s drug to their own.
GSK’s goal, at the expense of those who took its drug Paxil, was for
Paxil to become the dominant SSRI on the market.
As a result of the conduct described above GSK has been unjustly enriched
by receipt of millions of dollars from the sale and prescription of Paxil, sold
in large part as a result of the acts and omissions described above.
At all material times the conduct of GSK as set forth above, was
malicious, deliberate and oppressive towards the Plaintiff and the public
generally, and the said GSK, conducted itself in a willful, wanton and reckless
manner as set forth above. Despite
its specific knowledge as set forth above, GSK deliberately recommended,
manufactured, produced, marketed, sold, distributed, merchandized, packaged,
promoted and advertised the dangerous and defective drug Paxil.
As a result of GSK’s deceitful conduct and representations and due to
Paxil’s addictive quality, inducement of physical and psychological
dependency, and inducement of dependency/withdrawal reactions, the Plaintiff and
Class members unexpectedly suffered prolonged physical and mental harm. As
a further consequence of taking the drug Paxil
the Plaintiff and the Class Members have
and will continue to incur medical expenses, care expenses, losses
of capital assets, loss of income, loss of ability to perform housework, loss of
opportunity, pain and suffering and inability to enjoy their lives.
THE PLAINTIFF AND THE MEMBERS OF THE PROPOSED CLASS CLAIM AGAINST THE DEFENDANT:
Court Order Interest pursuant to the Court Order Interest Act;
Such further other relief as to this Honourable Court may seem meet;
PLACE OF TRIAL: VANCOUVER,
DATED at the City of North Vancouver, Province of British Columbia, this day
of April, 2002.
Solicitor for the Plaintiff
THIS STATEMENT OF CLAIM is filed by KENNETH J.
BAXTER ESQ., Poyner Baxter, Barristers & Solicitors, whose address for
delivery is Lonsdale Quay Plaza, #408 145 Chadwick Court, North Vancouver, B.C.
V7M 3K1 (Telephone: 604-988-6321