17 March 2021
Following delivery of the Federal Court’s Judgment in the matter of Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905 (Ethicon), we have seen at least two class action proceedings into the use and fitness for purpose of mesh implants commenced in the Supreme Court of New South Wales and Federal Court of Australia.
Plaintiff law firms, AJB Stevens Lawyers and Shine Lawyers, have filed representative proceedings on behalf of a (hereto underdetermined) number of women who suffered injuries associated with the implantation of mesh devices manufactured by Boston Scientific Corporation and Boston Scientific Pty Ltd (collectively, Boston Scientific) and American Medical Systems LLC (AMS[1]), respectively.
Similar to the Ethicon case, the actions allege that class members sustained debilitating injuries, including internal pain and bleeding, after mesh devices were surgically implanted to treat Stress Urinary Incontinence (SUI) or Pelvic Organ Prolapse (POP).
Consistent with the findings made by the Federal Court in 2019, the Applicants will allege that Boston Scientific/AMS (the respective Respondents):
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owed the class members a duty of care;
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breached that duty; and that
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the breach caused harm to the class members.
In addition to allegations of negligence, the Applicants will also allege that Respondents breached several provisions of the Australian Consumer Law by failing to ensure that their mesh implants were fit for purpose. Further, they have alleged that the Respondents knew, or ought to have known, that the mesh implants posed risks that were not insignificant and that patients could suffer complications as a result of their use.
In the most recently filed proceedings against Boston Scientific, the significance of this risk has been compounded by, according to AJB Stevens, Boston Scientific’s failure to give any, or any sufficient, information or warning to treating hospitals and treating implant surgeons, regarding the risk of implant complications.
The Boston Scientific class action remains open to new Applicants and affected women are being encouraged to sign on to the litigation as soon as possible[2].
Clyde & Co will continue to provide periodic updates on the status of both class actions as developments occur. These updates are being provided as part of Clyde & Co’s general coverage on the development of personal injury class action litigation in Australia.
For further information, please contact:
Lucinda Lyons, Partner, Clyde & Co
Lucinda.Lyons@clydeco.com
1. AMS has been substituted in the proceedings by orders made on 24 February 2021 for the Delaware limited liability corporation, Astora Women’s Health LLC, with amended Statements of Claim to be filed.
2. 1350 women formed the class in the Gill v Ethicon class action. In March 2021 the Full Bench of the Federal Court of Australia dismissed an appeal of the decision at first instance and upheld the order that the Defendants pay AUD$2.6m to the three lead applicants
