More than 80 people given go-ahead for surgical mesh compensation claim

A judge has given the go-ahead for more than 80 people to pursue a US-style class action compensation claim against the manufacturers of a surgical mesh.

Lady Haldane gave permission in Friday for the people to bring group proceedings to the Court of Session in Edinburgh.

A total of 84 people are seeking to use Scotland’s highest civil court in a bid to secure compensation from Covidien LP.

A judgement issued by Lady Haldane tells of how the people all had treatment for hernias using mesh products made by the firm.

Earlier this year, lawyers for the group addressed the judge at the Court of Session in Edinburgh seeking permission for the group proceedings to go forward and for a man called Stuart McKenzie to be named as representative party in the proceedings.

A representative party means the action continues in Mr McKenzie’s name.

Lawyers for Covidien opposed permission for the group proceedings to be be brought.

The firm’s advocate Astrid Smart KC argued that the proceedings shouldn’t be given the green light to proceed. Ms Smart told the court that the claims were too diverse to be dealt with as a group action.

She said there were differences in the type of the mesh products used, in the type of hernias were located and the specific medical circumstances of each of the cases.

However, in the judgement published on Friday, Lady Haldane rejected the arguments made to the court by Ms Smart.

She said the legal test which needed to be applied at this stage of the process was not to study each individual claim but to assess whether the cases raised issues that were the same, similar or related.

She added: ”On the question of commonality, the statutory test is whether the proposed proceedings raise issues that are the same as, or similar, or related to each other.

“The issues are not identical, that much is true. The group members had a variety of mesh products implanted to treat various types of hernia.

“The common factor is that all were manufactured by the respondent.

“However, the overarching issues are similar, or related to each other, that is to say whether the defender manufactured and/or promoted these products either negligently or when they were not as safe as persons generally were entitled to expect.

“That is a serious issue capable of being tried, although that is not to ignore significant issues of specification and relevancy that will no doubt give rise to challenge, if not addressed. The prospects, whilst not certain, are more than fanciful.

“For all of the foregoing reasons, I will grant the application for permission to bring group proceedings.”

Lawyers for Covidien also argued that Mr McKenzie should not be appointed as the representative party as his circumstances were too different from other members of the group action.

However, Lady Haldane also rejected the submission.

She wrote: “In short, I cannot identify a relevant impediment to the applicant’s suitability that militates against his appointment, and, having regard to the terms of the relevant legislation and appellate interpretation thereof, I am satisfied that the applicant meets the relevant criteria and I shall accordingly grant the application.”

The judgement does not determine whether Covidien was negligent or whether any of its product were defective.

The judgement also does not establish whether any member of the group is entitled to damages.

Those issues will be decided at a later stage