Women injured through defective Johnson & Johnson pelvic mesh implants may receive higher returns on a $300 million class action settlement after a former-chief judge has been called on to find the best deal.
The class action by Shine Lawyers reached a settlement in September last year in what was considered to be the largest ever legal win of its type.
However, questions were soon raised about the money Shine wanted for running the case and distributing the funds to eligible women in the future.
Signing off on the headline $300 million figure in March, Justice Michael Lee did not agree with Shine's proposed legal costs and other expenses which would have left affected women with about $174 million.
The costs of distributing the funds alone were estimated to be around $36 million over three-and-a-half years, in what the judge noted was "a significant commercial opportunity" for Shine.
He questioned why the law firm had not looked around for cheaper options. In December last year, despite opposition from Shine, the judge ordered a tender process to find a way to provide greater returns to women eligible to partake in the settlement.
"It seems passing strange that it should continue to be assumed that the court would just allow such a commercial opportunity to be taken by the solicitors acting for the applicants without exploring whether there were other cheaper and better ways to distribute the settlement sum justly among group members," Justice Lee wrote in March.
A total of 16 different tender offers ended up being filed with the court.
On Tuesday, the judge appointed James Allsop KC as a referee to assess which of these different schemes would bring about "fair and reasonable" returns for women injured by the implants.
The former Federal Court chief judge has until August 14 to report to the court and will be paid a maximum of $150,000 for his services.
At the settlement approval hearing in December, more than 250 women objected to the amount of $300 million, with around half saying it was not enough due to their pain and suffering.
"It was impossible not to be affected by the poignant stories told. The intimate, human element of this settlement approval application loomed large at all times," Justice Lee wrote.
The first class action was launched almost 10 years ago and was heavily contested by Johnson & Johnson and its subsidiary Ethicon, which stood by the claimed safety of the medical products.
After a seven-month trial which ran to February 2018 in the Federal Court, Justice Anna Katzmann ruled against the medical company.
In November 2019, the judge found the company acted negligently and concealed the true extent of complications from the devices.
Challenges to this decision went all the way to the High Court, which dismissed the appeal in November last year.
A second class action was filed on April 2021 for women who were not eligible to participate in the first class action against Johnson & Johnson because they received their implants after July 2017.
Women who were implanted with Gynecare Prolift, Prosima, TVT or Gynemesh devices up until June 30, 2020 are eligible for a slice of the $300 million settlement.
Complications from these products included erosion into organs, chronic pain, pain during sexual intercourse and incontinence.
A $105 million settlement of another class action by Shine over similarly defective pelvic mesh products by Boston Scientific was approved by the Federal Court in March this year.
Shine is also running another pelvic mesh class action against Astora Women's Health which is still ongoing through the courts.
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