Fowkes v Boston Scientific Corporation [2023] FCA 230 (on JADE).
With thanks to Justine Anderson for drawing attention to this ruling, in which Lee J held that the settlement sum seemed to be within a fair and reasonable range (albeit at the lower end of the range). Accordingly, it qualified for approval pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth).
However there was a bifurcation of the question of approval of the settlement and the approval of distribution of the settlement sum. Lee J foreshadowed an inclination to follow the course discussed in Gill v Ethicon Sàrl (No 11) [2023] FCA 229, and to appoint a referee to conduct a tender process in respect of the administration of the settlement scheme and made an order requiring any party opposing the appointment of a referee to put the administration of the settlement to tender to file and serve submissions within seven days. The submissions would appear to need to focus on the quantum of legal costs and the position of those who are not suffering a complication but are still at risk of a late onset complication.
An interesting issue touched on in the reasons arose from the fact identified at [195] that:
This settlement involves no vindication of the claims of group members as would be obtained if they received a judgment. It is condition of the settlement generally that there are no admissions by Boston and, indeed the parties go further; first, there is a requirement upon Ms Fowkes to acknowledge expressly the fact that the Boston companies maintain they would be successful if the class action had proceeded to judgment and that Boston would defend any other similar claim: see cl 29(a)(iii); and secondly, the Scheme itself, the terms of which are proposed to be imposed upon Participating Group Members, provides, by way of “Overview and Summary” that: The proposed settlement and this Settlement Scheme are made with a specific denial of liability and are not to be represented as an admission of liability by the Respondents or any of their related entities.
That led Lee J to raise the topic of apologies:
In an article, ‘Apologies as a Legal Remedy’ (2013) 35 Sydney Law Review 317, the author, Ms Robyn Carroll, explained (at 319):
“Research has also been conducted in Australia into the role that apologies play in medical negligence cases. Researchers have found that people interviewed about their experience of adverse medical events and who express satisfaction about the disclosure process typically ‘are those whose expectations of a full apology … and an offer of tangible support were met’ [Rick Iedema et al, ‘Patients’ and Family Members’ Experiences of Open Disclosure Following Adverse Events’ (2008) 20 International Journal for Quality in Health Care 421, 430]. In the light of evidence that apologies can have psychological and, most probably, health benefits, it is no surprise that efforts have been made in recent years within the health and legal professions in Australia and overseas to encourage medical and health care professionals to make disclosure and offer apologies in a timely way following an adverse medical incident.”
It is well beyond the scope of this judgment to attempt to canvass the medical or psychological literature regarding the importance of acknowledgments of wrongdoing, or the cathartic function of vindication through curial order when a claimant seeks redress for a wrong. These are large topics and although raised by me, were not explored in any depth by the parties. Counsel for Ms Fowkes and the respondents implored me to form a view that the non-admission is irrelevant. In developing this submission, the parties placed emphasis on the comments of Wigney J in Stanford v DePuy, where his Honour considered written and oral objections of group members concerning hip replacement implants (at [80]–[88], [129]–[136] and [159]–[165]). Relevantly, his Honour reflected (at [164]):
“….a number of the objecting group members were aggrieved by the fact that the settlement was on a “no admissions” basis. They wanted DePuy and Johnson & Johnson Medical to acknowledge and take responsibility for the pain and suffering that they had endured. Such an emotional response was perfectly understandable. It was not, however, a proper or reasonable basis to find that the settlement was not fair and reasonable. Experience suggests that representative proceedings of this type rarely settle on anything other than a no admissions basis. Settlement of proceedings on a no admissions basis is commonplace.”
And at [200] – [203]:
The subjective importance to group members of an absence of an acknowledgment of responsibility in one case (say a money claim) will be very different to a case involving personal injury. Further, it might be quite different depending upon the type of alleged personal injury, including when the injury is perceived to involve damage of an intimate and deeply personal kind and when complaints were, in some cases, initially the subject of scepticism. Further, the fact that no admissions settlements are commonplace does not mean the fact that the deprivation of the opportunity of group members being able to seek a vindication of their claims is irrelevant in the overall reasonableness evaluation.
I infer that it is likely that a not insignificant number of group members will have experienced a deep sense of frustration at not being believed or of being “fobbed off” by people not appreciating the extent of their pain. Certainly no evidence was led to suggest that the experience of group members from whom I heard was atypical or somehow unrepresentative of those group members who suffered similar symptoms.
The original proposal of a “gag” to be placed on group members (which would have exacerbated this problem), may have disappeared, but in the particular circumstances of this case, preventing group members obtaining public acknowledgment of what they allege is the cause of their suffering, and holding the company they consider responsible for their suffering to account, is no small thing.
It is superficial to respond simply by noting that Boston will not acknowledge liability and no settlement can be struck which does not reflect this line in the sand. This position may be accepted. It may also be accepted Boston may well succeed in resisting liability at a contested hearing, but this is not an answer to the point I am making. Some cases, and this is one of them, have an emotional dimension which makes the striking of any settlement absent a recognition of wrongdoing more difficult than others. Some defamation claims, when the perceived need for vindication is often the whole point of litigating, is a paradigm example of such a case.
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