Ah Against Greater Glasgow Health Board And Another; Sr Against Johnson And Johnson Medical Ltd And Another; Yt Against Spire Healthcare Limited And Others; And En Against Greater Glasgow Health Board And Others
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2018] CSOH 57 |
| Date | 01 June 2018 |
| Docket Number | A54/14, A821/15, A442/14 & A239/14 |
| Court | Court of Session |
| Published date | 01 June 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 57
A54/14, A821/15, A442/14 & A239/14
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
AH
Pursuer
against
(FIRST) GREATER GLASGOW HEALTH BOARD; and (SECOND) JOHNSON & JOHNSON
MEDICAL LIMITED
Defenders
and
SR
Pursuer
against
(FIRST) JOHNSON & JOHNSON MEDICAL LIMITED; and (SECOND) LOTHIAN HEALTH
BOARD
Defenders
and
YT
Pursuer
against
2
(FIRST) SPIRE HEALTHCARE LIMITED; (SECOND) DR ALASTAIR MILNE; and (THIRD)
COUSIN BIOTECH SAS
Defenders
and
EN
Pursuer
against
(FIRST) GREATER GLASGOW HEALTH BOARD; (SECOND) AMERICAN MEDICAL
SYSTEMS INC; and (THIRD) AMERICAN MEDICAL SYSTEMS UK LIMITED
Defenders
AH v Greater Glasgow Health Board &Johnson and Johnson
Pursuer: Smith QC, Ms Bennett, Ms Toner, Ms Connolly; Drummond Mill er LLP
First defenders: Primrose QC, Bowie QC, Mr Reid, Mr Campbell; NHS Scot land Central Legal Office
Second defenders: Currie QC, C Paterson, A Smart; Clyde & Co
SR v Johnson and Johnson & Lothian Health Board
Pursuer: Smith QC, Milligan QC, Ms Bennett, Ms Toner, Ms Connolly; Thompsons
First defenders: Currie QC, C Paterson, A Smart: Clyde & Co
Second defenders: Primrose QC, Bowie QC, Mr Reid, Mr Campbe ll; NHS Scotland Central Legal
Office
YT v Spire Healthcare, Milne & Cousin Biotech
Pursuer: Smith QC, Milligan QC, Ms Bennett, Ms Toner, Ms Connolly: Lefevre Litigation
Second defender: Stephenson QC, Mr Dawson, Mr Pugh; MDDUS
Third defenders: Haldane QC, Mr Balfour; Dentons UKMEA LLP
EN v Greater Glasgow Health Board & American Medical Syst ems
Pursuer: Smith QC, Milligan QC, Ms Bennett, Ms Toner, Ms Connolly; Drummond Miller LLP
First defenders: Primrose QC, Bowie QC, Mr Reid, Mr Campbell ; NHS Scotland Central Legal
Second defenders: Ellis QC; MacRoberts LLP
3
1 June 2018
Introduction
[1] This opinion relates to four actions which arise out of the use of what are called vaginal
mesh products in treatment of the pursuers. There are over 500 cases presently before the court
arising out of the use of such products. All but 18, which have been selected as lead cases, are
sisted pending the outcome of these cases. Following case management hearings held in terms
of Rule of Court 42A.4 these four cases were selected for debate on the procedure roll.
[2] While the pursuers’ pleadings all refer to pelvic mesh products as a generic term there
are in fact two different types of products involved which treat different symptoms. These are
a vaginal tape which is used to treat stress urinary incontinence (SUI) and a mesh used to treat
pelvic organ prolapse (POP). The common feature is that they both use polypropylene or
prolene. In this opinion I use the term “product” to refer to the tape or mesh used in the
individual treatment.
[3] These cases were set down for an eight day hearing. However as a result of the
comprehensive notes of argument and succinct submissions it was completed in five days. I am
grateful to counsel for their written and oral submissions.
The structure of this opinion
[4] I have elected to issue one opinion dealing with the four cases. There are two reasons for
this. First, as noted these are lead cases and it is hoped that the terms of this opinion can act as
guidance for other cases. Secondly, inevitably there was considerable overlap between the
submissions, even although different parties were represented. In consequence I have not
sought to replicate all of the submissions but I have hopefully captured the main points. For
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McCulloch and Others v Forth Valley Health Board
...application of the Hunter v Hanley test.” 37 The Lord Ordinary agreed with the decision of Lord Boyd in AH v Greater Glasgow Health Board [2018] CSOH 57, 2018 SLT 535 (“ AH”) in which a similar argument by the pursuer based on Montgomery was rejected. In that case it was held that a doctor ......