Thalidomide Settlement Approved by Federal Judge

UPDATE 2: 

• In June 2021, Federal Court Justice Michael L. Phelan approved the settlement, and it is now final, according to law firm Koskie Minsky LLP.

UPDATE:

• On July 22, 2020 Four Class Members reportedly filed an appeal of the Thalidomide settlement, causing a delay in the implementation of the class action settlement.
• Per an October update by Class Counsel, the appealing Class Members are currently awaiting a green light from the Federal Court of Appeal to move forward with their appeals.

Thalidomide Settlement Appealed

According to court documents filed Sept. 4 on behalf of the appealing Class Members, representative plaintiff Bruce Wenham has failed to represent the best interest of all Class Members. They are concerned that the Thalidomide settlement does not provide Class Members the right to opt out of the deal, and that the settlement terms prevent them from being able to challenge the birthdate parameters specified in the agreement.

As a result, the appellants say that the 42 Class Members who are born outside the birthdate parameters will need to “start the process afresh and relitigate the justiciability and reasonableness of the 2019 Program criteria.” They argue that Canada’s argument that there is no harm to these 42 Class Members ignores the fact that they have spent decades living in pain without financial relief.

“It is often said that justice delayed is justice denied; the old adage rings particularly true in these circumstances,” the appellants argue.

Top Class Actions will post an update when the court reaches a decision about whether to allow the appeals to proceed. In the meantime, the settlement is on hold until the decision is announced. Click the “Follow Article” button at the top of this page to get the latest updates about the Thalidomide settlement by using your free Top Class Actions account. For the latest updates, keep checking ca.TopClassActions.com or sign up for our free newsletter.

A federal judge has approved a class action settlement that will provide compensation to Canadians who were born with birth defects after their mothers used the morning sickness drug thalidomide during pregnancy.

Thalidomide was approved in Canada in 1961 to treat morning sickness in pregnant women. Despite being approved for less than one year, the drug was reportedly available unofficially in the years before it was approved.

Thalidomide Causes Birth Defects

The morning sickness medication reportedly caused major birth defects, such as shortened and missing limbs.

In 1990, the Canadian government established a program to assist people who lived with thalidomide birth defects. Another program was established in 2015, but it was criticized because it allegedly demanded applicants to prove their eligibility by supplying detailed documentation about their mothers’ actions more than five decades earlier.

The individuals who were rejected by the 2015 program subsequently filed a thalidomide class action lawsuit. A settlement was reached in 2019 that offered more compensation to a larger pool of applicants. About 135 Canadians were eligible for payments under the previous thalidomide compensation programs. Approximately twice that number of Canadians will be eligible for compensation from this thalidomide settlement.

Thalidomide Settlement Approved, But Limited

Federal Court Justice Michael Phelan has approved the thalidomide settlement, but said in his ruling that he is disappointed that the federal government insists on limiting the period during which those who qualify for compensation were born.

According to Judge Phelan, the federal government wants to exclude payments to individuals whose mothers took thalidomide at “unauthorized” times.

“Canada’s explanation for its rigid approach, while coldly scientific, lacked the compassion for the individual which the government espoused,” Phelan wrote in his order approving the thalidomide settlement.

“Regrettably, the Court is powerless to do anything about this issue, other than to encourage a compassionate reconsideration.”

Phelan notes that he would be unable to address the concern without jeopardizing the entire settlement.

The thalidomide settlement does not guarantee that the 156 individuals covered by the class action lawsuit will be entitled to benefits, Phelan notes. However, it does provide them with a fair process to apply for compensation.

The terms of the thalidomide class action settlement set forth eligibility rules and creates an appeal process for those who are again denied compensation.

Thalidomide was allegedly touted as a “wonder” drug for morning sickness when it was approved by Canadian health regulators in 1961. However, it reportedly caused significant birth defects such as shortened or missing limbs.

In 2014, the Thalidomide Survivors Task Force led a campaign informing the public about how people suffering from thalidomide birth defects experienced deteriorating health as they grew older. The Globe and Mail also published a series of stories documenting thalidomide survivors’ stories.

In response, the federal government announced a thalidomide compensation program in 2015. However, many of those affected by thalidomide birth defects said that their mothers did not have the documentation the government required in order for them to qualify for compensation.

Thalidomide Compensation Program

The 2015 thalidomide compensation program offers eligible Canadians a lump sum payment of $250,000 plus tax-free payments for life depending on the claimant’s level of disability. The compensation program also offers payments for extraordinary medical expenses.

Plaintiff Bruce Wenham says he lacked the documentation necessary to qualify for compensation under the thalidomide program. In 2016, he asked the federal court to review the government’s refusal to grant him benefits.

He subsequently filed the class action lawsuit on behalf of himself and 167 others with thalidomide birth defects who similarly failed to qualify for benefits under the compensation program.

Bruce’s mother was allegedly prescribed thalidomide in 1957 to ease her morning sickness during her pregnancy. Bruce, who is now 63, was reportedly born with no left arm. His right arm is just six inches long and has only two fingers.

Bruce says he applied to Canada’s thalidomide compensation program when it launched in 2015. However, he lacked the documentation necessary to qualify. Applicants were reportedly required to submit copies of a doctor’s prescription, hospital birth records, pharmacy records, or a sworn statement from the physician who prescribed thalidomide.

Judge Phelan said that the Canadian government had established something similar to the “beyond a reasonable doubt” standard used in criminal law cases. Bruce said the criteria were “impossible to meet.”

The thalidomide class action settlement lowers the standard of proof to “balance of probabilities” and provides claimants with an opportunity to provide more information. The settlement also provides those whose claims are denied the opportunity to have an oral hearing.

Under the terms of the thalidomide class action settlement, only individuals who took the morning sickness drug between late 1957 and late 1967 are eligible. Forty-two Class Members are reportedly left out of the deal due to this timeframe.

Have you ever taken the morning sickness drug thalidomide? Have you or anyone you know been impacted by thalidomide? Tell us your story in the comment section below!

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