IN THE SUPREME COURT OF BRITISH COLUMBIA
STEPHEN ALAN HEAD AND DAVID BOWN
MIRALEX HEALTH CARE INC. AND HUESON PHARMACEUTICAL CORP.
Brought pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50
FURTHER AMENDED STATEMENT OF CLAIM
The Plaintiff, Stephen Alan Head ("Head"), is a resident of Richmond, British Columbia, and the Plaintiff David Bown ("Bown") is a resident of Ottawa, Ontario.
The Defendant, Miralex Health Care Inc. ("Miralex"), is incorporated in the Province of British Columbia with a registered and records office at 2100-1075 W. Georgia St. Vancouver, British Columbia.
The Defendant Hueson Pharmaceutical Corp. ("Hueson") is incorporated in the State of Washington, in the United States of America with an office at 1111 Third Ave., Suite 3400, Seattle, Washington, U.S.A.
Miralex and Hueson jointly manufacture and distribute a skin cream called Miralex Cream.
Miralex and Hueson advertised and sold Miralex Cream as a treatment for itching, scaling and red skin, conditions common to sufferers of psoriasis.
Miralex and Hueson advertised and sold Miralex Cream as a "natural" skin treatment that was free from steroids and did not have any known contraindications or side-effects.
Steroids have an addictive quality which causes the skin condition to worsen when use of a skin product containing steroids (a "Steroid Skin Product") is stopped or interrupted. To suddenly stop using a Steroid Skin Product can cause the more common form of plaque psoriasis to convert to pustular psoriasis, a serious conversion that requires hospitalization and may be life-threatening. Steroid Skin Products can also cause thinning of the skin and dilation of tiny blood vessels, resulting in permanent scarring, stretch marks, and secondary infections. Moreover, use of large amounts of Steroid Skin Products over a long period of time has been associated with high blood pressure, diabetes, hairiness, acne, osteoporosis, weakening of bones, impaired wound healing, decreased resistence to infection, muscular wasting and behavioral changes such as mania and psychosis.
The Plaintiffs suffer from psoriasis.
Beginning in or about September 1998, Head began to purchase and use Miralex Cream for the treatment of his psoriasis. Head purchased his Miralex Cream from Miralex and Hueson.
Each time Head stopped using the Miralex Cream, his condition became worse than it had been before using the Miralex Cream. This resulted in Head having to purchase more Miralex Cream.
In or about June 1999, frustrated with the cycle created by the Miralex Cream, Head stopped using Miralex Cream.
After he stopped using the Miralex Cream, Head required extensive treatment to overcome the adverse and addictive effects of the Miralex Cream.
Head purchased over $1900.00 in Miralex Cream from Miralex and Hueson.
Bown also purchased Miralex Cream from Miralex and Hueson, and has suffered continuing personal injury as a result of its usage.
In or about November 1999, Head received a letter from Miralex and Hueson advising him that Miralex Cream had been found to contain steroids.
In or about the same time, Health Canada issued a warning to consumers, the Canadian Medical Association, the Canadian Dermatological Association and the Canadian Psoriasis Foundation that Miralex Cream had been found to contain clobetasol, a steroid-containing product. Health Canada also issued a nationwide alert for detention of Miralex Cream at all border entry points.
The Plaintiffs say that it was an express or implied term of the contract of purchase and sale between himself and Miralex and Hueson that Miralex Cream not contain any steroids.
The Plaintiffs say that Miralex and Hueson breached the contract of purchase and sale by selling him a product, Miralex Cream, that did in fact contain steroids.
The Plaintiffs say says that Miralex and Hueson owed the Plaintiffs and all of their customers a duty of care.
The Plaintiffs say that Miralex and Hueson were negligent, by inter alia:
(a) selling Miralex Cream as a steroid-free product when in fact it knew or ought to have known that Miralex Cream contained steroids;
(b) failing to test Miralex Cream, either adequately or at all, for the presence of steroids and to ensure the safety of its product;
(c) failing to implement any or a proper system for the continued testing and monitoring of Miralex Cream;
(d) failing to warn the Plaintiffs and all of its customers that Miralex Cream contained or could contain steroids.
The Plaintiffs say says that the activities set out in paragraphs 4, 5, 6, 9 and 13 constitute a contract of sale of goods as defined in the Sale of Goods Act, R.S.B.C. 1996, c. 410.
The Plaintiffs say that Miralex and Hueson were in breach of implied warranties arising under s. 18 of the Sale of Goods Act, specifically, that Miralex Cream was reasonably fit for the purpose for which it was intended and that Miralex Cream was of merchantable quality.
The Plaintiffs say that the activities set out in paragraphs 4, 5, 6, 9 and 13 constitute a consumer transaction pursuant to the Trade Practice Act, R.S.B.C. 1996, c.457.
The Plaintiffs say that the acts of Miralex and Hueson specified in paragraphs 5, 6 and 19 were deceptive or unconscionable acts or practices pursuant to the Trade Practice Act.
The Plaintiffs say that as a result of the deceptive or unconscionable acts or practices of Miralex and Hueson, the Plaintiffs have sustained loss or damage.
The Plaintiffs say that for the purpose of promoting, directly or indirectly, the supply or use of Miralex Cream, Miralex and Hueson expressly or impliedly represented to the Plaintiffs and all of its customers that Miralex Cream was a steroid-free product. This representation was untrue and misleading in a material respect.
The Plaintiffs say that these activities constitute a breach of the Competition Act, R.S.C. c.C- 34, s.52.
The Plaintiffs say that they have suffered loss and damage as a result of these breaches of the Competition Act. The Plaintiffs pleads and relies on s.36 of the Competition Act.
The Plaintiffs seek to represent the following class of persons:
All persons who purchased or received Miralex cream distributed by either Defendant who used the cream on their person and are alleged to have suffered injury and/or to be entitled to return of amounts paid for the cream. (the "Class").
In relation to class members resident in jurisdictions other than British Columbia, the Plaintiffs also plead and rely on the Sale of Goods Act and Trade Practice Act or equivalent legislation in force in their respective jurisdictions.
As a result of the breach of contract, negligence, breach of the Sale of Goods Act, breach of the Trade Practice Act, and breach of the Competition Act, the Plaintiffs and the Class have suffered and will continue to suffer loss. Such loss and damage was foreseeable by the Defendants.
Particulars of the loss and damage suffered by the Plaintiffs and the Class which were caused by or contributed to by the aforementioned acts of the Defendants include:
The Defendants' acts outlined above can be variously described as harsh, vindictive, reprehensible, malicious, high handed, arbitrary, and deserving of condemnation and punishment and the Plaintiffs therefore seek punitive damages against the Defendants.
Pursuant to s. 22 of the Trade Practice Act, the Plaintiffs and the Class claim for restitution of all of the funds acquired by Miralex because of its deceptive or unconscionable acts or practices, as well as punitive and exemplary damages.
The Plaintiffs claim, on their own behalf, and on behalf of the Class:
PLACE OF TRIAL: Vancouver, British Columbia
Dated at Vancouver, British Columbia, this 6th day of February, 2001.
Solicitors for the Plaintiffs
Solicitors for the Plaintiffs
This Further Amended Statement of Claim is filed and delivered by HANSON WIRSIG whose place of business and address for delivery is 111 - 15225 104th Avenue, Surrey, B.C. V3R 6Y8 [Tel: (604) 583- 2200 Fax: (604) 504-7452], V3R 6Y8 and BRANCH MACMASTER whose place of business and address for delivery is Suite 1410 - 777 Hornby Street, Vancouver, British Columbia, V6Z 1S4. [Tel: (604) 654-2999 Fax: (604) 684-3429], Solicitors for the Plaintiffs.