High Court dismisses appeal in ‘largest women’s health class action in Australia’s history’

High Court dismisses appeal in ‘largest women’s health class action in Australia’s history’

05 November 2021 By Jerome Doraisamy
Rebecca Jancauskas

The High Court of Australia has preserved the judgment of the Federal Court, which two years ago ruled in favour of thousands of women whose “lives were destroyed” by faulty pelvic mesh implants.

Landmark judgment

In November 2019, Justice Anna Katzmann of the Federal Court of Australia found in favour of women impacted by pelvic mesh implants sold by Johnson & Johnson and Ethicon which were “not fit for purpose”.

The class action – dubbed “the largest women’s health class action in Australia’s history”, according to plaintiff law firm Shine Lawyers – commenced in October 2012 and culminated in a trial that ran over seven months starting in July 2017.

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It was a win, the firm said, for “the brave women who spoke out about their suffering” after pelvic mesh implants left them in “chronic and debilitating pain”.

Representing the class, Shine had submitted that the implants should not have been sold, that the warnings accompanying the implants were inadequate and that the implants caused an unacceptable rate of complications, including erosion, incontinence and chronic pain.

In her judgment, Justice Katzmann found that pelvic mesh implants sold by Johnson & Johnson and Ethicon were “not fit for purpose” and of “unmerchantable quality”.

“Although later versions [of the product] did list erosion and extrusion as potential adverse reactions, they did so in a way that was misleading or deceptive,” her honour determined. “The respondents saw the commercial opportunities presented by the new devices and were keen to exploit them before their competitors beat them to it.”

In March of last year, Justice Katzmann ruled that the three lead applicants – Kathryn Gill, Diane Dawson and Ann Sanders, who represented the class – were to be awarded damages of $1,276,113, $555,555 and $757,372, respectively.

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In late December 2019, Lawyers Weekly spoke with Shine Lawyers practice leader Rebecca Jancauskas (pictured) about juggling an intricate class action and a newborn, and how the Federal Court supported her during proceedings.

Appeal

In April of last year, Ethicon and Johnson & Johnson confirmed it would appeal the Federal Court decision, with proceedings taking place in February 2021.

Justices Jayne Jagot, Bernard Murphy and Michael Lee – who heard the appeal in NSW – expedited their judgment and, in March, delivered findings in favour of the thousands of women “whose lives were destroyed by defective prolapse mesh and incontinence tape implants”, as Shine described them.

The decision by the Full Court, the plaintiff firm said in a statement, is a “hard-fought win for these brave women” and confirms that thousands across Australia will be entitled to compensation for injuries and losses suffered.

High Court verdict

The global pharmaceutical giants sought special leave to appeal to the High Court after their appeal to the Full Court of the Federal Court was quashed in March this year, having said following the Full Court’s decision that it would “consider its options”.

However, earlier today (Friday, 5 November 2021), the High Court responded in favour of the injured women, with Justices Michelle Gordon, Jacqueline Gleeson and Patrick Keane dismissing the application for special leave to appeal the judgment.

Speaking following today’s dismissal, Ms Jancauskas said: “Unfortunately, for these women, there is no such thing as complete closure until these group members receive their individual compensation, which may take years as Ethicon and Johnson & Johnson intend to challenge and review each group member’s claim for compensation.”

Sadly, Ms Jancauskas continued, the “gut-wrenching wait” is not yet over.

“There are still some hurdles to overcome as each woman will individually have her case considered from here,” she explained.

“There are over 11,000 Australian women who are now entitled to bring individual claims for compensation, and they may be fighting Johnson & Johnson for their compensation for many years to come.”

Moreover, the plaintiff firm noted, remaining members of the class can now bring individual claims for compensation, which will be assessed by the Federal Court.

Responses

In a statement issued following the dismissal, Ethicon said it empathises with all women who experience medical complications.

Ethicon believes it acted ethically and responsibly in the research, development and supply of its pelvic mesh products and stress urinary incontinence tape products and appropriately and responsibly communicated the benefits and risks to doctors and patients in Australia, the company said.

Ethicon is disappointed that it has not been successful in its application for special leave to appeal. The matter will now be relisted before the Federal Court to establish a process for determining group member claims.

One of the lead applicants, Diane Dawson, said that the faulty products had been sold and marketed “just to make money”.

“There were warning signs of women left with dyspareunia pain, discomfort and heartbreak but that didn’t matter. They just saw dollars,” she argued.

“Still to this day, this company is unwilling to admit that these products have caused pain and grief to many women. All we want are our bodies back the way we were, but that’s not going to happen, and they still don’t care.

“Obviously, we are very happy to see the courts have ended this battle in court, but our battle with pain continues for the rest of our lives.

“I want to thank my family and Shine Lawyers who have stood by me through this litigation. The next step is for compensation to be paid to these women, which will assist in covering and recovering thousands of dollars for medical expenses over the years and into the future.”

Former federal senator Derryn Hinch, who championed a 2018 Senate inquiry into the number of women in Australia who have had transvaginal mesh implants and related matters, said that these proceedings have been “such an arduous and physically crippling journey for so many women for so long”.

“The latest court decision is welcomed and so justified,” he proclaimed.

“The transvaginal mesh public hearings were the most significant achievement when I was in the Senate. It was, and tragically still is, the biggest medical scandal in Australia since Thalidomide.

“Mesh victims, never give up.”

Further related proceedings

The High Court dismissal follows a report from Lawyers Weekly in March 2021, noting that AJB Stevens Lawyers has filed class action proceedings against Boston Scientific Corporation and Boston Scientific Pty Ltd, on behalf of women who are alleging injury as a result of mesh implants that “were not of merchantable quality and did not have an acceptable quality”.

In the following month, Shine launched a second class action against Ethicon and Johnson & Johnson, on behalf of women who were impacted by the faulty mesh implants during different periods to those who fell under the first class.

Editor’s note: This story has been updated to include Ethicon’s statement.

High Court dismisses appeal in ‘largest women’s health class action in Australia’s history’
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