Scottish court halts collective hernia mesh litigation
In a recent ruling, Scotland's Court of Session has denied an application to authorise a group action against Johnson & Johnson Medical over alleged defects in five types of hernia mesh devices. The decision, made in the case of Donnelly (applicant) v Johnson & Johnson (defender), highlights the stringent requirements for group proceedings in Scotland under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.
The Act outlines that the court must authorise a representative party (RP) who is suitable, taking into account their abilities, relevant expertise, competence, and financial backing. Additionally, the court must grant permission for the group action to proceed if it believes that the claims raise issues of fact or law that are the same, similar, or related, and if group proceedings would be a more efficient way to administer justice than individual claims.
In the Donnelly v Johnson & Johnson Medical Limited case, the proposed group action was rejected due to a failure to meet these statutory requirements. The court found that the application did not clearly demonstrate the efficiency and efficacy of group proceedings over individual claims.
Robert Milligan KC, representing Ms Donnelly, argued that the Act created a flexible framework for multi-party litigation and that the claims shared common factual issues. However, the court was not persuaded that group proceedings would be more efficient than the alternative in respect of these claims, given the significant variations in composition, use, and risk profile of the five products at the centre of the claim.
Johnson & Johnson did not dispute the general benefits of group procedure but argued that the claims lacked clearly defined common issues. The defender contended that prescription and limitation issues, which are fact-specific to each claimant, would likely have to be resolved before any generic questions.
Despite finding Ms Donnelly a "suitable person" to act as class representative, Lord Young concluded that the proposed litigation failed to meet the required efficiencies. The claims concern 17 named individuals who were allegedly injured by one of five mesh products designed and supplied by Johnson & Johnson Medical.
The rejection of the group action application serves as a reminder that group proceedings are not automatic and that the application must clearly demonstrate the efficiency and efficacy of group proceedings over individual claims. The court remains focused on fairness, proportionality, and efficiency, and a strong, well-structured application aligned with the statutory criteria is essential for success.
[1] The Scotsman, "Court of Session rejects group action against Johnson & Johnson over hernia mesh devices", 14th September 2021, https://www.scotsman.com/news/scottish-courts-and-tribunals/court-of-session-rejects-group-action-against-johnson-johnson-over-hernia-mesh-devices-3693034
[2] The Herald, "Scotland's Court of Session rejects group action against Johnson & Johnson over hernia mesh", 14th September 2021, https://www.heraldscotland.com/news/19494118.scotlands-court-session-rejects-group-action-against-johnson-johnson-over-hernia-mesh/
- In light of the court's decision in the Donnelly v Johnson & Johnson Medical Limited case, it is essential for anyone considering a group action against a medical device manufacturer to demonstrate the efficiency and efficacy of group proceedings over individual claims, as the Act focuses on fairness, proportionality, and efficiency.
- The Donnelly v Johnson & Johnson Medical Limited group action was rejected due, in part, to the failure to clearly prove that group proceedings would be more efficient than individual claims for medical-conditions related to the use of their health-and-wellness products, with significant variations in composition, use, and risk profile among the products.
