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‘Lives were destroyed’: Shine wins ‘largest’ women’s health class action in Australian history
The Federal Court yesterday found in favour of women impacted by pelvic mesh implants sold by Johnson & Johnson and Ethicon which were “not fit for purpose”, in what Shine Lawyers is calling a win for “brave women” fighting against some of the world’s biggest companies.
Jerome Doraisamy
The class action – “the largest women’s health class action in Australia’s history”, according to Shine – commenced in October 2012 and culminated in a trial that ran over seven months starting in July 2017 before the 1,500-page findings were handed down yesterday morning in the Sydney registry of the Federal Court of Australia.
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 Anna 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.”
The findings open the door for “thousands of compensation claims” against the medical giants, Shine argued.
Shine special counsel for class actions Rebecca Jancauskas (pictured), who launched the action on behalf of the affected women, said: “It is a win for women who have faced a hard-fought battle against one of the world’s biggest companies and an agonising wait for a result in their favour.”
“Many women have felt alone in their suffering and will be so encouraged by today’s victory. We’re proud to let these women know that justice has been achieved on their behalf,” explained Ms Jancauskas.
“The compensation will help women pay their ongoing medical bills, allow them to access rehabilitation therapies and provide financial support as many struggle with daily living and job security as they are so unwell.”
As many as 8,000 Australian women, Shine noted, are thought to have been impacted by the defective pelvic mesh systems, which are surgically implanted to fix pelvic floor damage that causes, among other things, stress urinary incontinence and prolapse.
To date, more than 1,350 women have registered to be part of the Shine action, the firm said.
“It has been a long journey towards justice for the many women whose lives were destroyed by the defective pelvic mesh and incontinence tape implants,” said Ms Jancauskas.
“The decision the court delivered today tells these brave women that they have been heard and that they can now bring individual damages claims for the often irreparable damage that these implants have caused to their lives.
“Australians deserve to know that medical devices in this country are safe and properly tested. We need more than blind trust that manufacturers are doing the right thing.”
One message Ms Jancauskas stressed was that “there is still time” for women who were affected by the implants to seek access to compensation for injury or loss suffered.
“If you think you may have been impacted by a faulty pelvic mesh or tape implant, I encourage you to register in the class action so that you have an opportunity to seek financial restitution for the pain you’ve endured,” she said.
Justice Katzmann has deferred her ruling on compensation to the three applicants Kathryn Gill, Diane Dawson and Ann Sanders who represented the class, pending submissions from the parties.
The case citation is Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 and the full judgment is available on AustLII.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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