Coleman Harvey v Depuy International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 05 July 2016
• Neutral Citation: [2016] IEHC 382
• Docket Number: [2012 No. 6503 P.]
• Court: High Court
• Date: 05 July 2016

[2016] IEHC 382

THE HIGH COURT

Barr J.

[2012 No. 6503 P.]

BETWEEN

JOSEPH COLEMAN HARVEY

PLAINTIFF

AND

DEPUY INTERNATIONAL LIMITED,

DEPUY FRANCE

AND

HEALTH SERVICE EXECUTIVE

DEFENDANTS

Practice & Procedures – S. 6(e) of the Liability for Defective Products Act 1991 – Medical negligence – Product liability – Better particulars

Facts: The present proceedings concerned two motions for further and better particulars filed by the plaintiff against the defendants and vice versa in a claim for negligence and breach of duty instituted by the plaintiff against the defendants. The plaintiff argued that due to the defective artificial hip manufactured by the first and second named defendants, he had to undergo revision surgery at the hospital owned and maintained by the third named defendant. The plaintiff asserted that he required the identification of defects in the artificial hip and the concerned state of scientific and technical knowledge that was available to the first and second defendants at the relevant time. The said defendants argued that they could not provide full particulars of the state of scientific and technical knowledge unless they were provided with specific details of defects in their product.

Mr. Justice Barr granted an order to the plaintiff to furnish full particulars to the defendants in relation to certain items and the Court also granted an order to the defendants to provide better and full particulars to the plaintiff in relation to specific items only. The Court held that in a product liability case, the plaintiff must establish that there was a defect in the product by giving a particular defect for letting the defendant know what exactly had been alleged and to what extent. The Court observed that the purpose of asking particulars was to enable the opposing party to know the case that they would have to meet at the trial. The Court found that the plaintiff needed to define the precise detail in relation to the arc of cover in order to obtain full particulars of related scientific and technical knowledge.

JUDGMENT of Mr. Justice Barr delivered on the 5 ^th day of July, 2016

Introduction

1 This judgment concerns two motions for particulars. The first, brought by the defendants seeking further and better particulars of the exact defects alleged by the plaintiff to have existed in the defendants' product. The second is a motion brought by the plaintiff seeking further and better particulars of the state of scientific and technical knowledge, which the defendants alleged existed at the time that their products were put into circulation. This is relevant to their defence under s. 6(e) of the Liability for Defective Products Act 1991.

Background

2 Before coming to the notices for particulars raised by each of the parties, it is necessary to very briefly set out the history of the proceedings to date.

3 The plaintiff commenced his action by personal injuries summons issued on 3 ^rd July, 2012. The first two named defendants are limited liability companies. It is alleged that they were the manufacturers and distributors of an artificial hip device known as the DePuy ASR Total Acetabular Implant. The third named defendant is a statutory body and it is alleged that it was at all material times the owner, occupier and manager of a hospital known as St. Mary's Orthopaedic Hospital, Cork.

4 In essence, the plaintiff's case is that on 19 ^th July, 2005, he underwent a left hip replacement operation. It is alleged that a product manufactured by the first or second named defendant was inserted as an artificial left hip. The plaintiff alleges that due to the defective nature of that artificial hip, he was obliged to undergo revision surgery on 13 ^th March, 2007, when another artificial hip manufactured by the first and second named defendants was inserted in place of the first hip. The plaintiff further alleges that due to the defective nature of that artificial hip, he had to have further revision surgery on 7 ^th September, 2011. In the personal injuries summons, the plaintiff made it clear that the summons was issued without the plaintiff having the benefit of expert medical and other reports. It was stated that the summons was issued purely having regard to the provisions of the Statutes of Limitations 1957-1991 and to prevent the action becoming a statute barred.

5 An appearance was entered on behalf of the first and second named defendants on 16 ^th November, 2012. A defence was filed on their behalf on 25 ^th February, 2013.

6 An appearance was entered on behalf of the third named defendant on 11 ^th March, 2013. By notice dated 19 ^th June, 2013, the solicitor acting for the first and second named defendants was appointed to represent the third named defendant.

7 An initial notice of trial was served on 22 ^nd July, 2013. It does not appear that this was acted upon, probably due to the fact that a defence was only filed on behalf of the third named defendant on 8 ^th August, 2013. A further notice of trial issued on 22 ^nd October, 2013.

8 On 7 ^th February, 2014, the plaintiff served particulars of the defects which he alleged were in the defendants' artificial hips, and in particular in the hips furnished to him in 2005 and 2007. The notice also contained particulars of negligence and breach of duty alleged against the defendants. This notice for particulars is of relevance to the motion brought by the defendant and will be dealt with in greater detail below.

9 On 7 ^th January, 2016, the defendants were given liberty to amend their defence to include the following pleas:

'3(e) Without prejudice to the generality of the foregoing denial, it is denied that the first and second defendants breached the provisions of s. 2 of the Liability for Defective Products Act 1991 by manufacturing, producing, marketing, distributing and/or supplying a 'defective product' within the meaning of s. 5 of the Liability for Defective Products Act 1991 or at all.

(f) Further and without prejudice to the denial that the product was defective within the meaning of the Liability for Defective Products Act 1991, the first and second defendants will rely on s. 6(e) of the Liability for Defective Products Act 1991.'

10 The amended defence was issued on 12 ^th January, 2016. On 19 ^th January, 2016 an affidavit of verification was sworn in respect of the amended defence by Mr. Christopher Lawrence, who is the senior ASR Programme Manager employed by the first and second named defendants.

11 On 15 ^th January, 2016, the plaintiff served a notice for particulars arising out of the pleas contained in the amended defence. This notice is relevant to the motion brought by the plaintiff and will be dealt with later in this judgment.

12 On 1 ^st February, 2016, McDermott J. made an order giving the defendants liberty to make a late lodgement.

13 On 17 ^th February, 2016 the first and second named defendants raised a notice for particulars arising out of the particulars of defect which had been furnished by the plaintiff in his letter dated 7 ^th February, 2014. This notice for particulars is at the heart of the defendants' motion and will be dealt with later in the judgment.

14 On 24 ^th March, 2016 the plaintiff furnished replies to the defendants' notice for particulars dated 17 ^th February, 2016. On 15 ^th April, 2016, the defendants raised a notice seeking further and better particulars arising out of the replies which have been furnished by the plaintiff on 24 ^th March, 2016.

15 By letter dated 9 ^th June, 2016, the plaintiff furnished replies to the defendants' notice for particulars dated 15 ^th April, 2016, and also furnished further particulars of negligence and particulars of defects alleged to be in the products.

16 On 10 ^th June, 2016, the plaintiff served further particulars of personal injury on the defendants.

The Defendants' Motion for Further and Better Particulars

17 The defendants' motion concerns the question as to whether or not the plaintiff has furnished adequate replies to the matters raised in the defendants' notice for particulars dated 17 ^th February, 2016. However, that notice had arisen out of the particulars of defect furnished by the plaintiff on 7 ^th February, 2014. Those particulars of defect were in the following terms:

'We furnish additional particulars against the first and second defendants, DePuy International Ltd. and DePuy France, as follows:

1. ASR Hip Replacement Devices used in July 2005 and March 2007 were products (within the meaning of the Liability for Defective Products Act 1991) and were defective – generally and/or in design and/or manufacture (generally at common law and/or within the meaning of the Liability for Defective Products Act 1991) and/or hazardous, not fit for the purpose for which they were required and not of merchantable quality in that the first and second named defendants caused, allowed or permitted;

(a) The ASR cup walls to be thickened. To do so they lateralised the bearing surface, thus reducing the effective arc of cover of the ASR cup;

(b) The articulating surface of the ASR to be reduced by the design of the introducer which cuts out some of the bearing surface and leaves a sharp edge;

(c) The ASR to have an excessively low clearance: low clearances are a risk factor;

(d) The Acetabular component to be to shallow;

(e) The arc of cover of the ASR to be too low;

(f) The ASR to be prone to loosening and/or migration;

(g) The rim on the inside of the Acetabular component to be so designed and/or manufactured as to lead to increased wear;

(h) Excessive edge loading;

(i) Excessive metal debris to come off the bearing, taper trunnion and/or head.'

18 Arising out of the particulars of defect which had been pleaded in February 2014, the defendant raised the following notice for particulars...