Fowkes v Boston Scientific Corporation

The case of Fowkes v Boston Scientific Corporation was brought against the manufacturer and supplier of pelvic “mesh” implants by a group of individuals who experienced physical, psychological, and psychosocial difficulties. The proceedings were an open class representative proceeding, and the applicants sought approval of a settlement under section 33V of the Federal Court of Australia Act 1976 (Cth). The court had to determine whether the settlement terms were fair and reasonable, and if the settlement should be approved despite the absence of an admission of liability by the defendant.

The legal issues before the court were twofold: first, whether the settlement terms were fair and reasonable in all respects, particularly given the hundreds of objections raised by group members; and second, whether the court should bifurcate the question of approval of the settlement from the distribution of the settlement sum. The court had to balance the need for finality in the proceedings with the rights of group members who had not yet suffered complications from the implants.

In reaching its decision, the court considered the broad range of complications experienced by the group members and the potential for late-onset complications. The court noted that the proposed settlement scheme included payments to all recipients of the implants, regardless of whether they had suffered complications. The court found that the settlement was fair and reasonable inter partes and inter se, despite the absence of an admission of liability. The court also approved the bifurcation of the settlement approval and distribution issues, directing that the distribution be determined at a later date.

The court's final orders included the approval of the settlement on the terms set out in the Settlement Deed, subject to the later determination of distribution orders. The court also directed that submissions be made regarding the appointment of a referee to administer the settlement and stood over the proceedings for a case management hearing. The court's decision was guided by the need to ensure that the settlement adequately addressed the claims of all group members, including those at risk of late-onset complications.