AUSTRALIA Trends and Developments Contributed by: Robert Samut, Barry Nilsson
for mass tort litigation against orthopaedic device manufacturers, and as evidence in the case. In par - ticular, “metal-on-metal” hip replacements produced by several manufacturers were targeted for both class actions and individual actions. While registry-based litigation in relation to orthopae - dic devices is slowing, there are signs that a simi - lar phenomenon is happening in relation to breast implants in Australia. In 2016, the Australian Breast Device Registry (ABDR) was established. Similar to the AOANJRR, the ABDR tracks the implantation and revision surgery dates of breast prostheses in patients in Australia, including identifying implants with higher- than-anticipated rates of revision. There is now almost a decade a data in the ABDR, and this data is begin - ning to be used by lawyers to identify particular pros - theses as targets for litigation – in a similar way to the data in the AOANJRR was used for hip and knee replacement litigation. It remains to be seen whether this will be on the same scale as the hip replacement litigation of the last decade. Product liability in relation to pharmaceuticals in Aus - tralia has been sporadic over the last decade. This can be partly attributed to the outcome of the Australian Vioxx litigation, which was not particularly success -
ful for the plaintiffs, especially when compared with other jurisdictions around the globe that experienced large settlements and verdicts in similar cases. This was at least partly due to the strict causation tests under Australian law, making it difficult for plaintiffs to establish that adverse outcomes were the result of a particular medication. At the same time, there was “lower hanging fruit” as a target for product liability litigation in the form of medical devices, along with products in other industries. However, there are signs that this too is changing, and that pharmaceuticals are back in the litigation cross - hairs. This has been partly prompted by the competi - tive litigation market in Australia. The litigation funding industry in Australia contin - ues to grow. Similarly, the plaintiff class action law firm market which previously had only a handful of players, now has several participants, including law firms, which would traditionally operate solely on the “defence” side. With more competition, both funders and law firms are looking further afield for targets for mass tort litigation and class actions. While no sig - nificant pharmaceutical product liability class actions have yet commenced, a number are currently under investigation.
13
CHAMBERS.COM
Powered by FlippingBook