Hendra Vaccine Class Action Update
There have been recent positive developments in Federal Court class action damages claim against Zoetis Australia Pty Limited (“Zoetis”). The developments include the dismissal of Zoetis’ security for costs application and the Court granting leave for filing of further amended pleadings.
Zoetis security for costs application
On 21 June 2018 Zoetis filed an application seeking orders for security for costs. If the application had been successful, the court would not have permitted the class action to proceed until the amount set by the Court, as security for the respondent’s costs had been paid by the Lead Applicant Rachael Abbott and group members.
The application proceeded to a hearing on 14 March 2019. LHD vigorously, and ultimately successfully, contested the application.
In a judgment entered on 4 April 2019 Judge Lee dismissed Zoetis’s application.
In the interim period, Zoetis has filed an application for leave Judge Lee’s decision.
The application for leave to appeal will be heard by the full bench of the Federal Court in the last week of August 2019. The leave application will be vigorously opposed by LHD.
Further amended pleadings
Following the directions on 4 June 2019 the pleadings have now been set and Zoetis must now respond to the allegations by filing a Defence.
The next step is for the parties to attend court in September to have the matter listed for a hearing on some of the issues related to the HeV vaccine and its effects.
The opt-out notice process
Once a class action has been commenced the Court assumes that everyone who is eligible to be a member of the class is included unless they elect or “opt” out of the process.
Under the Opt-Out Notice Process, the Court will order LHD to contact all horse owners who have had their horses inoculated with the HeV inoculation and advise the owners of their eligibility to join the class action as a group member.
Any horse owner whose horse has suffered a negative reaction to the HEV inoculation is eligible to participate in the action as a group member.
As part of this process LHD will be required to send a letter or notice to all potential members of the class advising them of the action and their right to opt out.
We anticipate that the Opt-Out Notices will be sent to all group members in late 2019 or early 2020. On receipt of the notice, a group member will be required to either Opt Out of the class action or, in the alternative, provide instructions for LHD to act on their behalf or commence an action.
A copy of the Opt-Out Notice process FAQ information sheet is at the bottom of this page.
You do not have to wait:
Any individual wishing to join the class action as a group member can do so now by registering their details online via this link or by contacting Michael Hyland, solicitor, or Lisa Meys, solicitor, on 02 9264 6644.
What is the Hendra Vaccine Class Action?
LHD have commenced a class action in the Federal Court of Australia against Zoetis Australia Pty Limited (Zoetis).
Zoetis manufactured and marketed the Hendra HeV Equivac Vaccine which was administered to horses throughout Australia.
In their marketing and promotional material Zoetis have made representations including;
- The vaccine was free from serious adverse side effects;
- There is a high risk to horses of contracting the Hendra virus particularly in areas outside the eastern seaboard of Queensland and the north-eastern corner of New South Wales
- There is a high risk to humans of contracting the Hendra virus, particularly in areas outside the eastern seaboard of Queensland and the north-eastern corner of New South Wales
In the Further Amended Statement of Claim filed 4 June 2019 we contend that many horses suffered serious adverse side effects which Zoetis failed to give warning of, including death.
We further contend that the risk of horses and humans contracting Hendra, particularly in areas outside the eastern seaboard of Queensland and the north-eastern corner of New South Wales, is very low.
By failing to give warning of the side effects of the HeV vaccine and by overstating the risk to horses and humans of the risk of contracting Hendra, particularly in areas outside the eastern seaboard of Queensland and the north-eastern corner of New South Wales, horse owners were not given the opportunity to make an informed decision about whether to inoculate their horses with the HeV vaccine.
This means that many horses were inoculated unnecessarily and have suffered serious adverse side effects as a result of the inoculation.
These adverse side effects have resulted in a financial diminution in the value of the horse, treatment expenses, loss of income, loss of opportunity to gain income, the replacement value of the horse and, in some cases, personal injury suffered by the owner of the horse/s.
Why is there a Class Action?
More than half a million horses have been vaccinated with Equivac HeV Australia wide, including horses belonging to owners from racing and equestrian associations, working animals on farming properties and much loved family ponies.
Many horses have died or had to be euthanized after vets administered the Equivac HeV vaccine supplied by Zoetis and many more developed severe side effects that have compromised their health and limited their ability to train, compete or exercise.
What does it take to become a Group Member in the Class Action?
If you owned a vaccinated horse that has died or developed severe symptoms, you may be able to join the Hendra Vaccine Class Action as a ‘Group Member’.
To join, you will have to show that your horse was inoculated with the Equivac HeV vaccine and that the horse developed severe side effects or died because its health was severely compromised at any time following the vaccination.
Legal Action is expensive, so who will pay the cost?
LHD is conducting the Hendra Class Action on a ‘no win no fee’ basis. We believe that providing legal services in this way provides those affected with access to justice.
What this means is that our firm will cover the legal costs of all Group Members to the Class Action without requiring that they any pay legal costs unless we are successful recovering compensation from Zoetis or any other party found responsible for damage caused by the vaccine.
How does someone get involved?
If you think you fit the description of “group member” you can speak with a representative at LHD Lawyers by simply calling (02) 9264 6644 and leaving your contact details and a brief description of how your horse/s were affected.
FACTS SHEET ABOUT OPT-OUT NOTICES IN CLASS ACTIONS
What is an Opt-Out Notice?
An Opt-Out Notice is a court document that is sent to all potential group members.
What does it do?
If you opt out of a class action it means you are excluded from being a group member in the current proceedings before the Federal Court.
When should I expect to receive the Opt-Out Notice?
LHD Lawyers are in the process of drafting an Opt-Out Notice and we anticipate potential group members to begin receiving them in late 2019 or early 2020.
How will you know to contact me?
All horse owners who have had their horses inoculated with the HeV vaccine are registered on a data base.
We will contact every horse owner on the register.
What if I have already said no?
We are legally obligated to contact all horse owners who have had their horses inoculated.
If you do not wish to be part of the class action then you can complete and return the Opt Out Notice.
Unless an Opt Out Notice is completed the court will assume you are still part of the class action though we cannot work on your behalf unless you have entered into an agreement with LHD Lawyers.
Can I opt back in?
Once you have opted out you cannot re-join the class action.
Why do we need to opt in or out?
This process lets the court and the parties know who is in the class action and who is not.
Can I pursue a case on my own?
Any horse owner whose horse has suffered a negative reaction to the HeV vaccine can commence proceedings against Zoetis Australia in a separate litigation.
If you do decide to commence your own litigation you will need to be mindful that an action must be commenced within 3 years of suffering loss.
Why should I join the class action?
By commencing the class action, LHD Lawyers are acting on behalf of all owners whose horses have been negatively affected by the HeV vaccine.
Because court proceedings have been commenced group members do not have to worry about their claim being out of time.
Do I have to sign a cost agreement with LHD?
In order for LHD Lawyers to represent you as a group member in the class action, you will need to enter into an agreement with us.
For more information about costs, please refer to our Facts Sheet about Costs.
How can I join the class action now?
You can register your details online here or call our office to speak with one of the class action team.
How can I find out more?
By contacting solicitors Michael Hyland or Lisa Meys on 02 9264 6644