Judge lauds class action in serving the greater good

This decision arises from the pelvic mesh class actions against Johnson & Johnson.

Background

This decision arises from the pelvic mesh class actions against Johnson & Johnson. Following Katzmann J’s findings on liability, the matter returned before her Honour for determination as to:

  • injunctive relief;
  • damages; and
  • the form of, and answers to, the common questions.

Damages

Her Honour awarded approximately $2.6 million in damages for the three applicants. For the first applicant, Kathryn Gill, her Honour awarded $1,276,113. For the second applicant, Diane Dawson, her Honour awarded $555,555. For the third applicant, Ann Sanders, her Honour awarded $757,372. Damages were awarded for non-economic loss, loss of earnings and past loss of superannuation, domestic assistance, out-of-pocket expenses, loss of future earning capacity and future loss of superannuation.

Injunctive Relief

Injunctive relief was also sought by the applicants to prohibit the respondents from supplying the devices without adequate warnings of the risks associated with, and the complications caused by, the devices in the Information for Use (IFU) accompanying the devices. The respondents had amended the IFUs for the devices following the commencement of the class actions. However, her Honour held that those changes were not sufficient as not all of the required information and warnings were disclosed adequately or at all to doctors and patients.

The respondents opposed the injunction, claiming that it did not benefit class members and would necessitate ongoing supervision by the Court. They also claimed that changing the IFUs would be difficult, as they were produced for worldwide use. Her Honour dismissed the respondents’ objections on several grounds, including that:

  1. It was not necessary for the injunction to benefit class members. Her Honour re-emphasised her decision in Gill v Ethicon Sarl [2018] FCA 470 commenting (at [42]): Since the point seems to have fallen on deaf ears, I will make it again. The point is that injunctive relief for a contravention of the Trade Practices Act or the Australian Consumer Law serves a public purpose. That purpose includes the prevention and deterrence of undesirable, indeed, unlawful trade practices.
  1. The IFUs that had been drafted by the respondents did not go far enough to warn doctors and patients of all of the risks associated with the use of the devices, especially in circumstances (as noted in the primary judgment), that the respondents were aware of all of them.
  2. The injunction would not necessarily impede the ability of the respondents to update the contents of the IFUs with changes in medical and scientific knowledge and best practice, nor did it require that the IFUs be changed outside of Australia.
  3. The IFUs ought be consistent with the information supplied by doctors to patients. In other words, it was not sufficient to merely warn patients of the risks, but to not also warn their treating doctors as this could give rise to “mixed messages”.

Common Questions

Following the liability judgment, the applicants filed a list of 72 questions and answers. Her Honour commented that she was troubled by a number of the questions, stating that they were ‘unnecessary’, ‘inflammatory’, ‘confusing’ and ‘unnecessarily detailed’. In considering the role of the identification of common issues, her Honour stated (at [7]):

Whether an issue is common to some or all of the group members is not determined by whether it is necessary to include it in the list of common questions and answers. It is determined by whether it is an issue of fact or law in the proceeding and whether its answer can be expected to perform a useful purpose in the claims of the group members. Simply put, it is an issue, which is not peculiar to the case of a representative party (an applicant) but is common to the representative party and the group or sub-groups of the group. If including a question will reduce the risk of future disputes in the determination of the claims of group members and the incurring of unnecessary costs, then it will serve this purpose.

The respondents took issue with some of the questions, claiming that the questions were too granular. This objection was dismissed by her Honour, who stated that “[t]he degree of granularity with which the questions are cast cannot affect whether they are common to the group members” (at [9]).

The respondents also took issue with a question relating to the timeframe in which complications from the devices could arise. Her Honour sided with the applicants and retained the question, holding it should remain given its relevance to limitation defences foreshadowed by the respondents.

A number of objections were also raised by the respondents in respect of questions concerning the warnings given by the respondents in relation to the use of the devices. These questions were relevant to claims in negligence and under the Australian Consumer Law for misleading or deceptive conduct. Her Honour dismissed these objections and ultimately included questions pertaining to the warnings, stating: “[i]n the event that group members have to prove that their injuries were caused by the respondents’ failure to provide adequate warnings, the common questions and answers should identify those respects in which the information provided by the respondents was wanting” (at [20]).

Ultimately, her Honour approved a series of 31 common questions, relating to the following matters:

  • the purpose for which the devices were acquired;
  • the complications caused by the devices;
  • biocompatibility;
  • negligence;
  • application of the statutory causes of action to the overseas respondents;
  • misleading or deceptive conduct;
  • defective goods; and
  • unfitness for purpose and unmerchantable quality.

Appeal

Since the publication of the judgment, her Honour’s decision has been appealed by the respondents.

Case details

Gill v Ethicon Sarl (No 6) [2020] FCA 279

  • Federal Court of Australia, Katzmann J, 6 March 2020
  • Applicant's Solicitors: Shine Lawyers
  • Respondent's Solicitors: Clayton Utz
  • Applicant's Funder: N/A

Read more about this case on Austlii: Gill v Ethicon Sarl (No 6) [2020] FCA 279 

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