The High Court has ordered two sets of pelvic mesh injury proceedings, brought by two plaintiffs, to be consolidated so their clinical negligence and defective medical product claims can be considered together. The court ruled on the motions on 16 May 2023; it did not decide whether either plaintiff was injured through negligence or a defective device.
In a judgment by Ms Justice Niamh Hyland, the court applied the test for consolidation under Order 49, Rule 6 of the Superior Court Rules. It considered whether the proceedings raised important common questions, whether keeping them separate risked confusion or injustice, and whether consolidation would save expense or inconvenience.
The first motion concerned Anne Marie Ryan. Her proceedings allege that pelvic mesh devices inserted in 2012 and 2015, and the care surrounding their use, caused injury. One set of proceedings concerns treatment and alleged clinical negligence; a second alleges defects in the devices against manufacturers. Ethicon, which made the device alleged to have been used in 2012, opposed consolidation, arguing that the product and negligence claims involved different evidence and that a combined case would increase its costs.
Justice Hyland found that the claims could require a trial judge to determine common questions, including whether Ryan was injured, what caused any injury, how responsibility should be apportioned and what compensation might be due if liability were established. She said those questions could not be addressed fully and fairly if relevant medical defendants or manufacturers were absent. The court also considered the pleaded informed-consent and contractual claims, and the possibility that defendants might seek contribution from manufacturers.
The second motion concerned Martina Brennan. Her proceedings relate to a mesh device inserted in 2009, alleged subsequent pain and treatment, and its removal in 2016. She brought separate proceedings concerning the treatment and the device. Ethicon had been discontinued as a defendant in the earlier proceedings before the separate product claim was brought. It opposed consolidation, relying in part on that discontinuance.
The judge concluded that Brennan’s claims also shared factual and legal questions about her alleged injuries and their cause. She said the discontinuance did not alter the consolidation test or outweigh the benefits of hearing the claims together. The court directed consolidation in both cases, finding that one set of proceedings would likely save costs and judicial time and be more convenient overall.
The judgment left the underlying liability and injury claims unresolved. In Ryan’s case, the judge said she would hear counsel on the wording of the appropriate order. In Brennan’s case, the judge reserved the question of costs of the consolidation motion for submissions at the costs adjudication.