Mesh class action victory: Johnson & Johnson application for special leave to appeal dismissed by high court
04 November 2021
A historic victory for more than 11,000 women injured by faulty pelvic mesh implants has been preserved after the High Court dismissed an application for special leave to appeal the judgment.
In November 2019, the Federal Court of Australia found the implants, manufactured by Ethicon and Johnson & Johnson, should never have been on the Australian market and were "not fit for purpose" and were of "unmerchantable quality".
Last March (2020), Justice Anna Katzmann ruled the three lead applicants - Kathryn Gill, Diane Dawson and Ann Sanders, were to be awarded damages of $1,276,133, $555,555, AND $757,372 respectively.
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.
But today the High Court responded in favour of the injured women represented by Shine Lawyers.
Ten years of pain for client, Carina Anderson
Carina Anderson had a TVT Abbrevo implant procedure in 2011. She has spent the last ten years in pain experiencing erosion, infections, damage to her pelvic organs, nerves, tissues and suffers from ongoing mesh related complications.
Carina joined the class action in February 2014, in the same month that she had fragments of eroded mesh removed from her pelvic region.
“This mesh has caused me unbearable pain, resulting in me becoming bedridden and unable to walk.”
“The nerve damage from the mesh resulted in paralysis in my legs. I was unable to sit or bend down and was crippled with fatigue. For years I merely existed as a shell, lying in bed unable to do anything because of the severe pain and associated exhaustion,” she said.
“It’s a far cry from the very active woman in my mid-40's, I once was.”
“Before the mesh erosion I was offered a promotion at work. Before the promotion was finalized I was bedridden because of the mesh implant and had to take extended time off. Needless to say, I never got that promotion.”
“My family life has been impacted by the mesh implant too. My youngest son, who was 13 at the time of my initial surgery basically lost his mother at a crucial time in his life, as I was too fatigued and ill to care for him in the way every mother hopes to.”
“I can see that this has impacted his mental health. As a mother and wife I was unable to care for the household. My husband has been impacted because he had to take over things I could no longer do. The mesh implant has caused strain on every level of my life.”
“Today’s win is acknowledgment of ten years of suffering. It tells me and other mesh-impacted women that we have been heard.”
“We are still a long way away from the end of our battles but we are a step closer to holding Johnson & Johnson to account,” she said.
What happens next?
“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,” said Class Actions Practice Leader, Rebecca Jancauskas.
“Sadly, the gut-wrenching wait is not over. There are still some hurdles to overcome as each woman will individually have her case considered from here. 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,” she said.
The Johnson & Johnson / Ethicon class action commenced in October 2012 and culminated in a trial that ran over 7 months starting in July 2017 before the 1500 page findings were handed down in favour of the women in November, 2019.
“The Court found that these products should never have been sold or implanted in our clients, and the warnings were insufficient in light of the serious complications that can result from their use,” said Ms. Jancauskas.
Can women still join the class action?
The remaining members of the class can now bring individual claims for compensation which will be assessed by the Federal Court.
There is still time for women who have suffered complications as a consequence of these implants to register their interest to participate as a group member in these proceedings.
Message of support from Former Senator, Derryn Hinch
On Wednesday 28th March, 2018, the Senate Inquiry into the “Number of women in Australia who have had transvaginal mesh implants and related matters” handed down its final report. The Senate Inquiry was championed by Derryn Hinch, who called pelvic mesh “the biggest medical scandal for Australian women since thalidomide in the 1950s and 1960s, when kids were born without arms and legs”. Today, the former Senator has shared his message of support with Shine Lawyers.
"This has been such an arduous and physically crippling journey for so many women for so long. The latest court decision is welcomed and so justified. 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."