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PLAINTIFFS’ ORIGINAL CLASS ACTION PETITION
Come now plaintiffs, JOSEPH COUNTER and THERESA COUNTER, individually and on behalf of those similarly situated, and file this their Original Petition for damages, and would respectfully show the court as follows:
DISCOVERY
1. Plaintiffs request that discovery in this case be conducted under Discovery Level 2 of Texas Rule of Civil Procedure 190.
JURISDICTION AND VENUE
2. Plaintiffs individually seek relief that is within the jurisdictional limits of this court, but which claims will not, in any event, exceed $75,000, including reimbursement damages, attorneys’ fees, or any other element of damages sought by Plaintiffs.
3. Venue is proper in this county pursuant to Tex. Civ. Prac. & R. Code 15.002(3).
4. Jurisdiction is proper in the State of Texas because, at all relevant times, Defendants have done substantial and continuous business in the State of Texas. They have made contracts to be performed in whole or in part in Texas, and Defendants’ products have been manufactured, tested, sold, offered for sale, supplied or placed in the stream of commerce in Texas.
PARTIES
A. Plaintiffs (and Those Similarly Situated)
5. Plaintiffs Joseph and Teresa Counter are parents of a minor child, Joseph Alexander Counter ("Jac"). During the period from October 1996 through October 1998, the Plaintiffs purchased, and Jac was injected with, multiple childhood vaccinations manufactured by the Defendants, which vaccinations, unbeknownst to the Plaintiffs, contained the dangerous and highly toxic mercury-based preservative, thimerosal. The Plaintiffs reside in the State of Texas, and appear individually and also on behalf of those individuals similarly situated throughout the United States.
B. Defendants
6. Defendant Abbott Laboratories, Inc. is a foreign corporation doing business in the State of Texas, with its principal office in the State of Texas at 13898 Burnett Road, Austin, Texas 78758, Travis County. Abbott Laboratories, Inc. may be served through its registered agent in the State of Texas, C.T. Corporation, 350 North St. Paul Street, Dallas, Texas 75201.
7. Defendant American Home Products Corporation, doing business as Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories, is a foreign corporation doing business in the State of Texas. American Home Products Corporation may be served through its registered agent in the State of Texas, Prentice-Hall, 800 Brazos, Austin, Texas 78701.
8. Defendant Aventis Pasteur Inc., individually and as successor in interest to Connaught Laboratories, Inc., Pasteur Merieux and Pasteur Merieux Connaught, is a foreign corporation doing business in the State of Texas. Aventis Pasteur Inc. may be served through its registered agent in the State of Texas, C.T. Corporation, 350 North St. Paul Street, Dallas, Texas 75201.
9. Defendant Baxter International, Inc., individually and as successor in interest to North American Vaccine, Inc., is a foreign corporation doing business in the State of Texas. Baxter International, Inc. may be served through its President, Harry M. Jansen Kraemer, Jr., at One Baxter Pkwy, Deerfield, Illinois 60015.
10. Defendant Bioport Corporation is a foreign corporation doing business in the State of Texas. Bioport Corporation may be served through its President, Robert G. Kramer, at 3500 N. Martin Luther King, Jr. Blvd., Lansing, Michigan 48906.
11. Defendant GlaxoSmithKline, individually and as successor in interest to SmithKline Beacham Corp, is a foreign corporation doing business in the State of Texas. GlaxoSmithKline may be served through its President, Jean-Pierre Garnier, at One Franklin Plaza, 200 N. 16th Street, Philadelphia, Pennsylvania 19102.
12. Defendant King Pharmaceuticals, Inc., doing business as Parkdale Pharmaceuticals, Inc., is a foreign corporation doing business in the State of Texas. King Pharmaceuticals, Inc. may be served through its Executive Vice President, Kyle P. Macione, 501 Fifth Street, Bristol, Tennessee 37620.
13. Defendant Medeva Pharmaceuticals is a foreign corporation doing business in the State of Texas. Medeva Pharmaceuticals may be served through its registered agent in the State of Texas, C.T. Corporation, 350 North St. Paul Street, Dallas, Texas 75201.
14. Defendant Merck & Co., Inc. is a foreign corporation doing business in the State of Texas. Merck & Co., Inc. may be served through its registered agent in the State of Texas, C.T. Corporation, 350 North St. Paul Street, Dallas, Texas 75201.
CLASS DEFINITION
15. Plaintiffs bring this action on behalf of themselves and a class of persons similarly situated who have purchased, for their child’s benefit, any childhood immunization vaccination containing the mercury-based preservative thimerosal.
16. This class specifically excludes claims for personal injury and any "vaccine related injury" as that term is defined by 42 U.S.C. 300aa-33(5), whether now known or unknown.
EXEMPLAR FACTUAL ALLEGATIONS
17. Mercury has been known to be one of the most toxic substances on earth for more than 100 years, and has been proven to cause neurological damage even at very low doses. Newborn children are more susceptible to mercury’s effect as it interferes with the developmental processes of the infant brain.
18. Certain vaccines routinely administered to children, which vaccines were designed, manufactured, sold, and/or distributed by all Defendants, contained at all relevant times a mercury-based preservative called thimerosal.
19. By following an immunization schedule during the first 18 months of life, Plaintiffs’ child, Jac Counter, was exposed, and American infants on average have been exposed, to 237.5 mcg (micrograms) of mercury from the thimerosal in Defendants’ vaccines. This exposure has resulted in a mercury body burden in the average 18 month-old child that exceeds federal exposure guidelines by a factor of 30-plus times the permissible limit.
20. In the 1980’s the Food and Drug Administration ("FDA") issued a regulation requiring the removal of thimerosal from all over-the-counter products due to safety concerns. On December 14, 1998, the FDA published a notice in the Federal Register requesting that vaccine manufactures provide data on mercury content in their vaccines. The FDA’s Center for Biologics Evaluation and Research ("CBER") has confirmed that mercury has been present in over 30 vaccines marketed in the U.S. during the past five years.
21. In June of 1999, the FDA confirmed that: "Infants who receive thimerosal-containing vaccines at several visits may be exposed to more mercury than recommended by federal safety guidelines for total mercury exposure."
22. The vaccines that contained thimerosal were manufactured and/or marketed and/or sold by the Defendants without adequate testing, without any adequate warnings and despite the ready availability of a substitute preservative.
23. All Defendants are responsible for the manufacture and/or distribution and/or marketing and/or sale of thimerosal-containing vaccines since approximately 1983. The vaccines were promoted by all Defendants at all relevant times without any reference to the toxic hazards and potential public health ramifications resulting from being laden with the mercury-containing thimerosal preservative.
24. All Defendants continuously and deliberately or negligently misrepresented to doctors and to the consuming public the efficacy of these products because of their failure, in all instances, to advise doctors or consumers that the usage of the thimerosal-containing vaccines, used in their ordinary fashion, could result in mercury poisoning as a result of the underlying toxicity of the unidentified mercury contained within the product.
FIRST CAUSE OF ACTION-FRAUDULENT MISREPRESENTATION
25. Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
26. All Defendants intentionally failed to inform the consuming public of the mercury content of Defendants’ thimerosal-containing vaccines and the potential associated health hazards faced by children receiving those vaccinations, such as Plaintiffs’ child, Jac Counter.
27. All Defendants knew and intended that the mercury-containing vaccine products would be purchased by consumers, such as the Plaintiffs, without any knowledge as to the potential health hazards associated with the use of the products.
28. When Plaintiffs purchased the Defendants’ mercury-containing vaccinations for Plaintiffs’ son Jac, Plaintiffs did not know of the substantial danger of using said products because such dangers are not readily recognizable by such persons.
29. If Plaintiffs had known that the Defendants’ vaccinations contained the potentially toxic and dangerous mercury-based preservative, thimerosal, Plaintiffs would not have purchased those products.
30. With such knowledge, Defendants intentionally opted to manufacturer, label, distribute, offer for sale, supply, sell, market, warrant, re-brand, manufacture for others, package and advertise said vaccine products without attempting to warn or protect Plaintiffs from the risk of injury resulting from exposure to the mercury contained in the vaccines. Instead, Defendants intentionally failed to reveal their knowledge of said risks, thus impliedly representing to Plaintiffs and members of the general public that the mercury-containing products were safe for all reasonably foreseeable uses, and thereby wrongfully inducing Plaintiffs to purchase their mercury-containing vaccine products.
31. Long before Plaintiffs’ child was exposed to Defendants’ vaccines, said Defendants were aware that parents of infant children, such as the Plaintiffs, would purchase their mercury-containing products, but would have no knowledge or information indicating that such products could cause injury. Defendants further knew that such persons as Plaintiffs would assume when purchasing the mercury-containing vaccines, and in fact did assume, that exposure to the mercury-containing vaccines was safe, when in fact, said exposure was extremely hazardous to human health, and particularly the health of infants.
32. With such knowledge, Defendants intentionally opted to manufacturer, label, distribute, offer for sale, supply, sell, market, warrant, re-brand, manufacture for others, package and advertise said products without attempting to warn or protect Plaintiffs from the risk of injury resulting from exposure to the mercury contained in the vaccines. Instead, Defendants intentionally failed to reveal their knowledge of said risks, thus impliedly representing to Plaintiffs and members of the general public that the mercury-containing products were safe for all reasonably foreseeable uses, and thereby wrongfully inducing Plaintiffs to purchase their mercury-containing vaccine products.
33. Plaintiffs relied upon Defendants’ intentional misrepresentations and lack of warnings regarding the vaccines and their mercury-containing ingredients. As a direct, foreseeable and proximate result thereof, Plaintiffs have been injured as alleged herein.
SECOND CAUSE OF ACTION-NEGLIGENT MISREPRESENTATION
34. Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
35. All Defendants negligently failed to inform the consuming public of the mercury content of Defendants’ thimerosal-containing vaccines and the potential associated health hazards faced by children receiving those vaccinations, such as Plaintiffs’ child, Jac Counter.
36. All Defendants knew or should have known that the mercury-containing vaccine products would be purchased by consumers, such as the Plaintiffs, without any knowledge as to the potential health hazards associated with the use of the products.
37. When Plaintiffs purchased the Defendants’ mercury-containing vaccinations for Plaintiffs’ son Jac, Plaintiffs did not know of the substantial danger of using said products because such dangers are not readily recognizable by such persons.
38. If Plaintiffs had known that the Defendants’ vaccinations contained the highly toxic and dangerous mercury-based preservative, thimerosal, Plaintiffs would not have purchased those products.
39. With such knowledge, Defendants negligently opted to manufacturer, label, distribute, offer for sale, supply, sell, market, warrant, re-brand, manufacture for others, package and advertise said vaccine products without attempting to warn or protect Plaintiffs from the risk of injury resulting from exposure to the mercury contained in the vaccines. Instead, Defendants negligently failed to reveal their knowledge of said risks, thus impliedly representing to Plaintiffs and members of the general public that the mercury-containing products were safe for all reasonably foreseeable uses, and thereby wrongfully inducing Plaintiffs to purchase their mercury-containing vaccine products.
40. Long before Plaintiffs’ child was exposed to Defendants’ vaccines, said Defendants were aware that parents of infant children, such the Plaintiffs, would purchase their mercury-containing products, but would have no knowledge or information indicating that such vaccine products could cause injury. Defendants further knew or should have known that such persons as Plaintiffs would assume when purchasing the vaccines, and in fact did assume, that exposure to the mercury-containing vaccines was safe, when in fact, said exposure was extremely hazardous to human health, and particularly the health of infants.
41. With such knowledge, Defendants negligently opted to manufacturer, label, distribute, offer for sale, supply, sell, market, warrant, re-brand, manufacture for others, package and advertise said vaccine products without attempting to warn or protect Plaintiffs from the risk of injury resulting from exposure to the mercury contained in the vaccines. Instead, Defendants negligently failed to reveal their knowledge of said risks, thus impliedly representing to Plaintiffs and members of the general public that the mercury-containing products were safe for all reasonably foreseeable uses, and thereby wrongfully inducing Plaintiffs to purchase their mercury-containing vaccine products.
42. Plaintiffs relied upon Defendants’ negligent misrepresentations and lack of warnings regarding said vaccines mercury-containing ingredients. As a direct, foreseeable and proximate result thereof, Plaintiffs have been injured as alleged herein.
THIRD CAUSE OF ACTION-BREACH OF IMPLIED WARRANTY
43. Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs as though fully set forth herein.
44. Plaintiffs allege that the Defendants impliedly warranted their mercury-containing vaccine products to be safe for their intended use, but such products in actual fact created an unreasonable risk of bodily harm to exposed infants such as Jac Counter.
45. Plaintiffs relied upon Defendants’ implied warranty regarding said vaccines mercury-containing ingredients. As a direct, foreseeable and proximate result thereof, Plaintiffs have been injured as alleged herein.
CLASS ACTION ALLEGATIONS
46. Plaintiffs bring this case as a class action pursuant to Texas Rules of Civil Procedure 42(a), 42(b)(1)(A), and 42(b)(4). The prerequisites for class certification are satisfied for the following reasons:
47. The class is so numerous that joinder of all members is impracticable. Upon information and belief, tens of millions of parents in the United States have purchased mercury-containing vaccines on their children’s behalf with no knowledge of the high degree of risk of injury associated with the mercury-containing product. The class thus easily numbers in the millions.
48. There are numerous questions of law and fact common to the class. These include but are not limited to:
*whether defendants’ representations and material omissions have been false, intentionally or negligently made;
*whether defendants intended plaintiffs and others similarly situated to rely upon these false representations and material omissions;
*whether plaintiffs and others similarly situated in fact did rely on these false representations and material omissions;
*whether the defendants’ impliedly warranted against the potential harms of the mercury contained in their vaccine products, and the lack of knowledge of parents and the general public on these subjects.
49. There is no reason for each of these questions to be litigated in numerous separate suits. Instead, they should be resolved in one proceeding.
50. The claims of Plaintiffs are typical of the claims of the entire class. There is no antagonism between Plaintiffs and the other members of the class, and they assert the same claims that other class members could and would assert.
51. Plaintiffs will fairly and adequately protect the interest of the class. They have retained counsel who are experienced in consumer litigation, and who have substantial experience in class action litigation. These counsel will vigorously and zealously represent the class.
52. The common questions of law and fact set forth above predominate over any questions that affect individual class members. This class action is therefore superior to any other method available for the fair and efficient adjudication of this controversy; indeed, no other such method is available. Moreover, to Plaintiffs’ knowledge, there is no other litigation concerning this controversy at present.
53. Plaintiffs therefore seek certification of a class consisting of all persons in the United States and its territories who have purchased mercury-containing pediatric vaccines on behalf of their children.
PRAYER FOR RELIEF WHEREFORE, premises considered, Plaintiffs pray for relief and judgment against Defendants, jointly and severally, as follows:
As a result of the acts and omissions detailed above, Plaintiffs and others similarly situated have been damaged and are entitled to certain legal remedies. Plaintiffs therefore pray for the following recovery to be awarded to them and all class members upon the certification of the class described above, including but not limited to:
1. Refund of all monies paid by Plaintiffs or on Plaintiffs’ behalf to purchase Defendants’ mercury-containing pediatric vaccines;
2. For Plaintiffs’ reasonable attorneys’ fees and costs;
3. For pre-judgment and post-judgment interest as provided by law;
4. For costs of suit incurred herein; and
5. For such other and further relief, at law or equity, as this Court deems equitable, just and proper, but in event do Plaintiffs individually seek to recover damages in excess of $75,000.00 for any and all claims asserted by them in this case, including reimbursement damages, attorneys’ fees, or any other element of damages.
Plaintiffs demand a trial by jury of all issues in this action.
