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Victorian mother-of-three Rebecca Oates remembers the exact moment she found out lawyers were taking global giant Johnson & Johnson to court in a massive class action over its mesh devices.
"It was my Nanna who sent me a local newspaper article and she said, 'Oh my god Bec. I was reading this and thought of you.'"
Oates clung to the news like a life raft on a sinking ship.
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"It was a relief, to be honest. I was thinking, 'I'm not alone. I'm not crazy. Other women have experienced exactly the same thing.'"
For two years, Oates had been in a dark and lonely place.
At the age of 27, Oates underwent surgery recommended by her doctors to have pelvic mesh implanted to treat a prolapse and minor incontinence after the birth of her son.
Oates woke up from the surgery to feel "an incredible searing pain".
Months later, Oates was still in agony.
But when she sought help from her doctors and specialists, she claims she was met with scepticism and a form of medical gaslighting.
"The surgeon said, 'Oh, you should be fine. Maybe you should see a psychologist'," she said.
"Then I was told, 'There's nothing physically wrong with you. You must be a drug seeker.'
"I was getting chronic infections, blood in my urine all the time, and was told, 'Look at your personal hygiene.'
"It was just very, very isolating and confusing. You definitely start to question yourself and your own body."
Oates eagerly signed up for the class action, brought by Shine Lawyers in 2012.
The landmark case against Johnson & Johnson and its subsidiary Ethicon quickly became the largest women's health class action in Australian history.
It is estimated to include up to 11,000 members, although the exact numbers are still not known.
Other women's health class actions have since followed, including a mesh class action against medical manufacturer Boston Scientific, also brought by Shine Lawyers on behalf of about 2400 women.
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And last month, Slater and Gordon's class action case against Bayer for its Essure contraceptive device began hearings in the Supreme Court of Victoria.
It's now been more than a decade since the Johnson & Johnson court action began.
The case went all the way to the high court, with Johnson & Jonhson fighting the judge's findings the mesh devices – banned in 2017 – were not properly tested and the companies involved knew they had insufficient safety data, every step of the way.
A settlement of $300 million has been awarded to members, but the women involved are still waiting to hear the answer to one looming question – what will their individual payout be?
The presiding judge in the Federal Court, Justice Michael Lee, is yet to make two key decisions – how much Shine Lawyers will be awarded in costs and who will administer the settlement scheme to divvy out the payments.
Shine Lawyers has asked for $100 million in costs to be taken from the settlement amount, which is in addition to $40 million Johnson & Johnson has already paid the firm.
Lee has described the amounts as "immense" and deferred a decision.
If Shine Lawyers is appointed to administer the settlement scheme, the firm estimates it will cost $37 million to run, an amount which will again be taken from the settlement amount.
For Oates, the class action has brought with it a "rollercoaster ride" of emotions.
The ultimate high came in 2019, when the Federal Court reached its damning findings over the actions of Johnson & Johnson and Ethicon.
"I remember the day the judgement was handed down and it was so vindicating. There were literally just tears of joy rolling down my face," Oates said.
But, over the years, Oates' joy has been tempered with sadness and despair.
It's become clear she will likely never recover from the damage the mesh has done to her body.
Despite having the mesh removed, and several corrective surgeries, Oates still lives in constant pain and has not been able to work since her initial operation.
"I thought getting the mesh removed would fix everything – it definitely hasn't," she said.
"I ended up in full adult nappies for about two years. I had absolutely no control over my bladder whatsoever when the mesh was removed, which is quite embarrassing.
"The mesh becomes part of your body, all your tissue grows around it. It attaches to nerves and becomes brittle. My urethra was severed which is probably why I was urinating blood and getting so many infections.
"I'll be on an array of medication to manage the pain for the rest of my life. That's the outlook."
Oates' thoughts then, have turned to how much compensation she will receive in exchange for a life irrevocably altered.
It was a "kick in the guts" she said, when she heard the news that Shine Lawyers was seeking to take a third of the settlement sum in costs.
Payments from Medicare and health insurers will also need to be deducted from the settlement.
A crude average, dividing the settlement minus estimated costs between 11,000 women, suggests a payout of just under $20,000.
However, the real figure will be highly variable depending on each member's individual level of damages.
Oates said that amount would barely cover a year or two of her medical expenses, and offer no compensation for loss of income.
"It's disheartening," Oates said.
"I think it's really opened my eyes to the justice system and how unfair it is for people."
Oates is not alone in her disappointment with the settlement.
More than 250 members submitted objections to court before it was approved.
The young mother said she couldn't help but compare her attempts to get justice for her medical injuries via the class action in court with Australia's state and territory-run compensation scheme for motor accident victims.
"If you look at roadside accidents with the TAC (Victoria's Transport Accident Commission) they can get payouts of, you know, hundreds of thousands of dollars, quick and easy, whereas we have spent a decade to get to this point."
A New Zealand comparison
One country which does have a national compensation scheme covering medical treatment injuries – including those relating to vaginal mesh – is New Zealand.
The country's no-fault Accidents Compensation Corporation (ACC) is funded through taxpayer and corporate levies.
Nikki Chamberlain is a senior law lecturer at The University of Auckland.
Chamberlain is currently completing a PhD at the University of New South Wales, part of which seeks to compare mesh payouts in New Zealand to the likes received by women taking part in the Johnson & Johnson mesh class action in Australia.
Under New Zealand law, there is no option to sue for compensatory damages in court if someone is covered under the ACC scheme.
This means New Zealand women injured through mesh surgeries have no real choice but to seek compensation through ACC.
Statistics compiled by Chamberlain during her research from ACC reports showed that between June 1, 2005, and June 30, 2018, the ACC paid out 439 claims for compensation from women with injuries relating to mesh repair surgeries for Pelvic Organ Prolapse (POP) and urinary incontinence (SUI).
The 439 women were paid a total of approximately $NZ10.1 million ($9.41 million), equating to a rough average of approximately $NZ23,000 ($21,500) each, although payouts vary depending on individual circumstances.
While the calculations are very approximate, as are average payout estimates in Australia's Johnson & Johnson class action, the figures appear to show a comparable level of compensation, Chamberlain said.
It took the Johnson & Johnson case a decade to make its way to the High Court for a final decision.
Meanwhile, it took ACC an average of 48 days to issue a decision on the mesh claims, and 59 per cent of claimants received their compensation payout in less than a year, while a further 23 per cent waited two years.
"Compared to Australia, the difference is that the payouts appear to have occurred quicker and you don't have the litigation stress," Chamberlain said.
However, two obvious flaws with the no-fault New Zealand scheme are that it does not offer the means for companies such as Johnson & Johnson to be held to account – and taxpayers are footing the bill for their negligence.
Chamberlain said her PhD would propose a number of recommendations to address these glaring shortcomings, including options for ACC to pursue court action against negligent companies.
"In cases where you have clear liability, then I think there should be a subrogation of legal rights to ACC from the victim, meaning that ACC then pursues proceedings to recoup damages," Chamberlain said.
"Because why should the New Zealand taxpayer or employers be picking up the levy or the fee for the clear wrongdoing of big international corporations?"
"My alternative recommendation is that a person, in certain circumstances, should be able to elect not to be covered by ACC and to pursue a class action, if they so choose, with others for compensatory damages."
'A travesty of injustice'
Queensland mother Kathy Robertson-Cipak is a member of the Boston Scientific mesh class action, where about 2400 members have been awarded a $105 million settlement.
Unlike the Johnson & Johnson class action, the three-year case against Boston Scientific did not include any admission of liability in its settlement agreement.
Boston Scientific has previously said it stands by the quality and safety of its products.
Robertson-Cipak spent years ringing around law firms trying to get a class action case started against the medical manufacturer after her mesh surgery in 2018, which left her in unending pain.
The mother-of-five said she was devastated when she heard news of the settlement and that it did not contain any admissions of liability.
"I cried. It's just a joke and an absolute travesty of injustice," she said.
Robertson-Cipak said her main hope for the class action had been that it would prevent other women from suffering the same fate as her, and she gave up her chance for individual litigation to pursue the class action.
"I just thought if we got this class action started, then they would have to stop the mesh. They would have to stop injuring people but it is still happening," she said.
"There's good women out there whose lives have been destroyed by mesh. It's destroyed marriages, people have lost their jobs, their houses.
"In the long run, no one's been made accountable. Yet we will suffer every day."
Class action the 'second best' option, expert says
Michael Legg, a professor in the Faculty of Law at UNSW, said could understand the disappointment expressed by members of the mesh class actions.
The high cost of bringing individual cases to court in Australia had led to a trend towards class actions, but they could be problematic in cases like mesh injuries where some of the women involved suffered a high level of damages, Legg said.
"The way I would describe a class action is, it's the second-best solution. It's not the best solution but we've effectively created a justice system that's too expensive.
Vicky Antzoulatos, who is joint head of class actions at Shine Lawyers, said class actions were an important vehicle for justice and her firm was proud of the work it had done on the mesh class actions.
"It is hard to say what may have been achieved by individuals taking on Johnson & Johnson one-by-one," Antzoulatos said.
"A class action allowed thousands of women to come together to bring their claims.
"Many women would not have endured the strain of individual litigation against Johnson & Johnson including the time it would take and the costs.
"Lots of individual cases would have also put a strain on the court system.
"Running a class action has meant that Shine Lawyers largely absorbed the costs of running the claim to give all affected women a chance at receiving compensation for what they have endured as a result of faulty pelvic mesh and tape products."
While there would inevitably be some compromise, the class action mechanism was flexible enough to take individual circumstances into account, she added.
Contact reporter Emily McPherson at [email protected].
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