AMO Canada Lawsuit: Interview with Lawyer Joel Rochon

Toronto, ONT"Several weeks ago we [Rochon Geneva LLP] were approached by a young woman who suffered blindness in one eye subsequent to using AMO contact lens solution recall," says Joel Rochon.

"Since then, we have been contacted by a number of people, mainly with serious cases involving partial blindness in line with cornea transplants," he says. "It is our sense that AMO is a very serious case because of the potentially devastating injuries from the use of this product."

Allegedly, Advanced Medical Optics of Santa Ana, Calif., makers of the AMO contact lens solution, knew its product was contaminated with Acanthamoeba keratitis two years ago but did nothing to protect its customers. "It is this very behaviour which a class proceeding seeks to modify," says Rochon. He is also closely monitoring the Health Canada website.

Acanthamoeba keratitis (AK) is caused by a parasite, can be difficult to detect and is hard to treat. This outbreak occurred not long after an outbreak of fusarium keratitis (caused by a fungus) was linked to ReNu With MoistureLoc, made by Bausch & Lomb.

"We already knew about the AMO recall prior to this woman (a school teacher) contacting us and we had also worked on the ReNu case," adds Rochon. "My firm had done some background research with respect to the Renu product—we were already familiar with these types of eye infections, so with the AMO case we hit the ground running. We were able to pull together a class action lawsuit with the benefit of our earlier research and familiarity with this area of practice.

The Recall
"A recall is only as effective as the notice and because a product like AMO is so widely distributed, it is important that notice of the recall reach all potential consumers, otherwise people will continue to use it.

In Canada, the recall was picked up by the news media. As a lay person, I would suggest that there are tens of thousands of people still using this product. This is inherent with any product recall, particularly when it is not through a prescription.

In the U.S., the FDA reported that AMO had only 12% of the market but this product accounted for 60% of AK infections. There is no reason to doubt that a parallel situation has produced itself in Canada.

AMO Lawsuit
"Currently, we are now in the process of assembling our materials for certification. The certified material should be completed within the next few weeks. Following delivery of that, we will be setting a schedule before the judge assigned to case-manage the class action here in Toronto.

Since we initiated the class proceeding, the statute of limitations does not apply. The limitation period has been pulled so class members are protected by this lawsuit in terms of limitation periods continuing to run.

Drug and Defective Product Class Action Lawsuits in Canada
"Here in Canada the process is to seek certification prior to discovery, whereas in the U.S. discovery is permitted prior to certification. In Canada we have a strong precedent for the courts dealing with drugs and defective device cases; historically, our courts have essentially held that defective products cases are well suited for certification treatment in Canada. For example, two large drug cases -- Fen-Phen and Cerzone -- were settled in favor of the plaintiffs.

Possible Outcome
"My thought is that, if the defendant (Advanced Medical Optics] is serious about doing the right thing, the company will attempt to work with counsel in our judicial system to put in place the process that is sanctioned by the court in order to deal with this serious piece of litigation.

What You Can Do
"At this early stage in the process, it would be helpful to the entire litigation if plaintiffs make themselves known to lawyers handling this case. It would help us to inform the court as to the seriousness of the infection process and to further inform the court as to the magnitude of the problem across the country.

Fist, seek appropriate medical treatment. Keep any AMO bottles and receipts of purchase. Ideally, keep some of the contents in the bottle-- it is important as evidence to show that you were using the product. If you can obtain pharmaceutical records, great. We will obtain your medical records and handle everything from here."

Joel Rochon
ROCHON|GENOVA LLP
Tel: 416-363-1867
Email: jrochon@rochongenova.com
www.rochongenova.com