Full court quash Johnson & Johnson appeal in favour of 10,000 victims

THOUSANDS OF AUSTRALIAN WOMEN MAINTAIN THEIR WIN IN AUSTRALIA’S LARGEST WOMEN’S HEALTH CLASS ACTION ON PELVIC MESH. JOHNSON & JOHNSON & ETHICON BROUGHT AN APPEAL TO OVERTURN THE LANDMARK DECISION. THE APPEAL WAS HEARD IN FEBRUARY 2021. 

Justices Jayne Jagot, Bernard Murphy and Michael Lee, who heard the appeal in NSW, expedited their judgment and today delivered findings in favour of 10,000 women whose lives were destroyed by defective prolapse mesh and incontinence tape implants sold by Johnson & Johnson. 

Client Peta Bennett said today’s Federal Court decision to reject Johnson & Johnson & Ethicon’s appeal is a win for herself and others like her, who have patiently waited for a decision to be handed down. 

Peta had a TVT implant procedure at the Wesley Hospital in 2004. She has waited 17 years for justice. 

The registered nurse, has experienced erosion of her implant, psychiatric injury, recurrent prolapse and incontinence, damage to her pelvic organs, nerves, tissue and a heart attack, brought on by the physical and mental stress of her condition. 

“The TVT failure has impacted my life terribly. I have bowel incontinence, severe pain in my groin and left leg, which affects my walking ability and also other physical actions.” 

“My marriage has dissolved, I am unable to live my life as I used to playing hockey or softball, jogging or just generally trying to keep fit. I eventually put on weight and doctors recommended weight loss surgery.” 

“I went from being a nurse who helped, to becoming the patient who nobody could help. I miss my work terribly and can no longer help other people which upsets me tremendously.” 

On my way to work one morning (Dec 23rd, 2017), I had takosubo cardiomyopathy, I believe caused by all the pain and suffering I had been enduring, coinciding with worry of trying to also look after family at home. I just could not do it anymore. It could have killed me in the first 5 minutes of the heart attack, luckily I was on the grounds of my workplace already.” 

“I wish I had never had the TVT put in back in 2004. It's destroyed my life. This win won’t repair the damage, but it will contribute to medical expenses that have piled up over the years as I try to manage my pain.” 

Shine Lawyers said today’s Federal Court decision is a hard-fought win for these brave women. It confirms that thousands of Australian women are entitled to be compensated for injuries and losses suffered. 

“We welcome today’s decision, and hope that the finalisation of this appeal will bring some much-needed closure to thousands of Australian women who have suffered chronic pain and life-altering complications as a result of these implants. 

“Of course complete closure can’t be achieved until Johnson & Johnson settles and the group members’ individual compensation claims have been determined. 

“Johnson & Johnson have relentlessly defended this case at every opportunity and our clients have endured a frustrating and agonising wait while we have pursued justice on their behalf over the past eight years. 

“We will continue to fight until these brave women receive the compensation they deserve,” said class actions Practice Leader, Rebecca Jancauskas. 

In November, 2019, Federal Court Judge Anna Katzmann found the pelvic mesh implants sold by Johnson & Johnson and Ethicon were “not fit for purpose” and of “unmerchantable quality”. 

The 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. 

“While we celebrate the fact that justice has been achieved, we also need to reflect on the great injustice these women have suffered; some for well over a decade. This win reinforces that the compensation they have fought for, which is necessary to support them in their recoveries, will be delivered,” said Ms. Jancauskas. 

“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.” 

Justice Katzmann ruled on 3 March 2020 that the three lead applicants Kathryn Gill, Diane Dawson and Ann Sanders who represented the class were to be awarded damages of $1,276,113.00, $555,555.000 and $757,372.00 respectively. 

The remaining members of the class can now bring individual claims for compensation which will be assessed by the Federal Court. 

The global health crisis involving these products has negatively impacted hundreds of thousands of women, whose lives are still on hold as a result of unbearable and ongoing pain. 

What next?

Ms Jancauskas, who launched the action on behalf of the affected women, said “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.” 

Can women still join the class action?

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. 

Contact the Shine Lawyers Mesh Hotline 1800 884 139 or click here to find out more information. 

Background: 

• The action was heard in the Federal Court in Sydney by Her Honour Justice Anna Katzmann. The 28-week trial began in July 2017 and judgement was delivered on 21 November 2019. 

• The appeal was heard in February 2021 by the Full Court of the Federal Court, who have rejected the appeal. 

• The pelvic mesh systems are surgically implanted to fix pelvic floor damage that causes, amongst other things, stress urinary incontinence and prolapse. 

• To date approximately 10,000 women have registered to take part in Shine Lawyers’ Class Action. 

• Senate report was released in March 2018 following an inquiry into pelvic mesh devices. It recommended that doctors report all adverse effects of mesh implantation, a registry for all high-risk implantable devices, improved monitoring schemes of these devices and more government agency oversight over product registrations and approvals. 

• The TGA banned pelvic mesh from sale in Australia in November 2017 and required incontinence tapes to display increased warnings from January 2018. 

• Johnson & Johnson withdrew some transvaginal mesh and tape products from the Australian market and the remainder have been the subject of an injunction preventing their sale since judgment was delivered in 2019. 

• More than 100,000 American women who were implanted with J&J devices started legal action in the US and most of these claims have now been settled. 

• Similar claims remain on foot in other countries including England & Wales, Canada, Scotland and Ireland.