Gill v Ethicon Sarl (No 10) [2023] FCA 228

Gill v Ethicon Sarl (No 10) [2023] FCA 228

Approval of the $300,000,000 global settlement under s 33V(1) is warranted because, despite the sum being at the low end of the range of fair and reasonable settlements and despite numerous group member objections, the settlement offers certainty and an efficient resolution considering litigation risks, the variance in group members' likely entitlements, and the substantial prior findings of liability. The fairness of deductions for costs, administration, and third-party reimbursements necessitates further judicial scrutiny, justifying bifurcation of settlement and distribution orders.

Parties
First Applicant: Kathryn Gill; Second Applicant: Diane Dawson; Third Applicant: Ann Sanders; Applicant: Lisa Talbot; First Respondent: Ethicon Sàrl; Second Respondent: Ethicon, Inc.; Third Respondent: Johnson & Johnson Medical Pty Limited (ACN 000 160 403)
Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Representative Proceedings (class Action) / Settlement Approval Under S 33 V Federal Court of Australia Act 1976 (cth), Bifurcated for Settlement and Later for Distribution
Outcome
Settlement approved under s 33V(1) of the Federal Court of Australia Act 1976 (Cth), subject to later determination on distributions under s 33V(2)
Legal Topics
Approval of Class Action Settlement, Personal Injury Damages, Costs in Representative Proceedings, Scheme Administration, Distribution of Settlement Funds
Tort Law Product Liability Consumer Protection Class Actions Civil Procedure Approval of Class Action Settlement Personal Injury Damages Costs in Representative Proceedings +2 more

Case Brief

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Parties

Kathryn Gill

First Applicant

Diane Dawson

Second Applicant

Ann Sanders

Third Applicant

Lisa Talbot

Applicant

Ethicon Sàrl

First Respondent

Ethicon, Inc.

Second Respondent

Johnson & Johnson Medical Pty Limited (ACN 000 160 403)

Third Respondent

Procedural Posture

Representative Proceedings (class Action) / Settlement Approval Under S 33 V Federal Court of Australia Act 1976 (cth), Bifurcated for Settlement and Later for Distribution

Legal Issues

  1. 1 Whether the proposed $300m settlement is fair and reasonable within the meaning of s 33V of the Federal Court of Australia Act 1976 (Cth) for group members in representative proceedings regarding pelvic mesh implants, considering prior findings of liability against Ethicon and objections from group members;
  2. 2 Whether the deductions (costs, administration, third-party reimbursements) from the settlement fund are justified and should be addressed separately from settlement approval;
  3. 3 The appropriateness of procedural steps such as appointing contradictors, using a tender process for scheme administration, and bifurcating settlement approval and distribution

Ratio Decidendi

Approval of the $300,000,000 global settlement under s 33V(1) is warranted because, despite the sum being at the low end of the range of fair and reasonable settlements and despite numerous group member objections, the settlement offers certainty and an efficient resolution considering litigation risks, the variance in group members' likely entitlements, and the substantial prior findings of liability. The fairness of deductions for costs, administration, and third-party reimbursements necessitates further judicial scrutiny, justifying bifurcation of settlement and distribution orders.

Court Disposition

Settlement approved under s 33V(1) of the Federal Court of Australia Act 1976 (Cth), subject to later determination on distributions under s 33V(2)

Orders

  • Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth), the settlement of the proceedings on the terms set out in the settlement deed executed 10 November 2022 is approved.
  • Settlement approval is subject to a separate and later determination of just orders regarding the distribution of settlement funds under s 33V(2) of the Act.