DePuy ADR Process v DePuy International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IEHC 922
• Court: High Court
• Docket Number: [2019 No. 84 MCA]

IN THE MATTER OF THE DEPUY ADR PROCESS AND IN THE MATTER OF AN ORDER MADE ON THE 16 ^th DECEMBER, 2015, IN THE CASE OF CHRISTOPER GAFFNEY V DEPUY INTERNATIONAL LIMITED AND IN THE MATTER OF AN APPLICATION BY MALCOMSON & LAW SOLICITORS ON BEHALF OF NAMED CLIENTS

[2019] IEHC 922

Cross

[2019 No. 84 MCA]

THE HIGH COURT

Alternative dispute resolution process – Prosecution – Causation – Plaintiffs seeking an order amending an alternative dispute resolution process – Whether the fact that the applicants had not had their claims progressed was due to any fault in the scheme

Facts: Mr Bradley solicitor, of Malcomson & Law, the solicitors on record for a number of plaintiffs bringing actions against DePuy Internatonal Ltd including those listed in schedule one and two of the notice of motion, applied to the High Court seeking: “(i) Directions in relation to the entitlement of DePuy to put causation an issue in cases listed in schedule one of a notice of a motion dated the 28th of February 2019; (ii) Directions in relation to the entitlement of DePuy to require additional medical records and/or medical examinations in the case listed in schedule two of the motion; (iii) An order amending the ADR [alternative dispute resolution] process referred to in the said motion by the deletion of clause 9 from the process; or (iv) Alternatively an order permitting the plaintiff in the proceedings listed in schedules one and two to prosecute their claims before the Court.”

Held by Cross J that he rejected the submissions in relation to the directions in relation to the claimants in schedule one in relation to the issue of causation and also rejected the application for any directions in relation to additional medical records or examinations in relation to the cases in schedule two. Cross J reject any application to amend clause 9 of the scheme. Cross J held that it is reasonable that once the parties have entered into the scheme that they should be prevented from any steps until the scheme has been exhausted; the fact that Mr Bradley’s applicants had not had their claims progressed was not due to any fault in the scheme or in DePuy but rather in the applicant’s advisors. Cross J held that if the applicants had good reason to seek to proceed to trial, they had not articulated such reason and they had all the time since Flynn v DePuy International Limited & Ors. [2017] IEHC 267 to make such application. Cross J noted and accepted the submissions of the respondents that none of the applicants had averred or asserted that they would not be willing to agree on any without prejudice negotiations or none of them had insisted that to vindicate their rights by way of a full determination of liability by the High Court. Cross J concluded that the applicants were not entitled to reply upon Grant v Roche Products (Ireland) Ltd. & Ors. [2008] 4 IR p. 679 merely because they had decided through their solicitor to remain idle in the belief that they could have a claim to a trial merely because they had done nothing to advance their claims.

Cross J held that the applications would be rejected.

Applications rejected.

JUDGMENT of Mr. Justice Cross delivered on the 20th day of December, 2019

Background

1 As of December 2014 there were over 1,000 anticipated cases involving claims for damages as a result of the allegedly defective ASR, replacement hips which were manufactured by DePuy International Limited (DePuy). By order dated 16th December, 2015, this Court established an alternative dispute resolution (ADR) process to deal with claims in relation to these allegedly defective hips from certain qualifying claimants.

2 The scheme was finalised after a number of applications with parties suggesting alternative wordings to the scheme and was revised on a number of occasions. The applicants' solicitors, Malcomson & Law, were one of the main objectors to certain terms in the scheme as finally adopted. The scheme was approved by the Court on 16th December, 2015.

3 The scheme provided for resolution without attribution of liability and awarding of damages by a panel of barristers and retired judges who would assess damages based upon paper records in respect of claimants who had the ASR Product inserted in Ireland and underwent revision surgery within 10 years of the initial hip replacement and not earlier than 180 days after it. The scheme reserved the right for DePuy not to agree to a claimant entering the ADR scheme if certain issues arose eg. if the claim was potential statute barred or the claimant had not obtained injuries board authorisation or certain other matters.

The ADR scheme (“the scheme”)

4 The scheme required that DePuy's solicitors (McCann Fitzgerald) to produce a report every six months or such lesser period as might be fixed by the Court and copy all known claimants' solicitors with the details of the progress of the claim.

5 Clause 3.1 of the scheme provided:

“A claim qualifies to enter the process:

(a) The index operation implanting the ASR Product in the patient occurred in Ireland and

(b) The claimant underwent revision surgery in Ireland within 10 years of the index operation but not earlier than 180 days after the index operation.”

6. Clause 3.2 provided that DePuy did not agree to a claim entering the process if in their opinion the claim was statute barred, injuries board authorisation had not been obtained or the claim related exclusively to various matters and further if the claim was not sufficiently pleaded or particularised or if sufficient medical records or other details had not been given to McCann Fitzgerald.

7 Clause 5.1 of the scheme provided:

“For the purpose of the process:

(a) The claimant will not be required to establish that the ASR Product supplied to him or her was defective within the meaning EC Product Liability Directive (the Directive) or that DePuy was negligent provided the claimant proves that the ASR Product early revision by reason it being an ASR Product.

(b) DePuy will not raise any of the defences otherwise available to it under Article 7 of the Directive and

(c) DePuy will not raise any defence as to causation based upon surgical technique or error causing or contributing to the early failure of the ASR Product and the Evaluator shall evaluate damages and costs on the assumption that the surgical technique or error did not cause or contribute to the early failure of the ASR Product.”

8 Clause 5.4 provided that:

“A claimant may avail of the process by completing a standard short form with essential details of the claim (which shall be entitled ‘Form B’, the form of which is scheduled here to) and by his or her solicitor submitting that to McCann Fitzgerald (reference DFH).”

9 Clause 5.5 provided:

“Where DePuy's advisers are of the opinion that they have sufficient information including sufficient copy medical and surgical records, to form a view as to whether the claim meets the eligibility criteria of the process and to form a view about the validity and the value of the claim McCann Fitzgerald will endorse Form B at the place indicated at the bottom of the form and return the form to the claimants' solicitors.”

10 Clause 5.7 provides:

‘The claimants’ solicitors may also send to the Evaluator any other documents which they consider are relevant to the Evaluation. Such documents may include:

(a) A condition and prognosis report dealing also with causation where relevant;

(b) A concise witness statement from the claimant, if desired; and

(c) Concise written submissions.”

11 Clause 5.12 provided:

“DePuy envisages that in cases involving uncomplicated revision surgery it will rarely be necessary for it to obtain expert reports for submission to the Evaluator but it may do so if so advised.”

12 Clause 9 provided:

“Following the submission of a completed Form B by the claimants' solicitors to McCann Fitzgerald the claimant and DePuy shall not take any active steps (including the making or increase of a lodgement by DePuy) in existing proceedings concerning the claim, or shall not issue new proceedings regards an ASR Product before an evaluation has been issued by the Evaluator and the Evaluation has lapsed pursuant to clause 8.1.”

13 At the time the ADR process was initiated claims against DePuy were being Specially Fixed in the High Court at two per week in 2016. Such was the progress of the scheme and of parallel settlement negotiations that while 71 cases were listed for trial in 2016, only 5 cases were listed for trial in 2019. Accordingly, it can be seen that a combination of the operation of the scheme and the parties willingly negotiating settlements, the substantial majority of these claims are already disposed of.

14 There has only been one judicial determination in relation to liability since the establishment of the scheme. Rather than swamping the Courts with up to 80 cases a year which could each take a number of weeks and involve a significant number of expert witnesses some of whom would have to travel from out of the jurisdiction, the scheme has worked to dispose of the cases economically in conjunction with DePuy, through their solicitors negotiating with other claimants.

15 I accept the evidence in the affidavit of Mr. David Hurley, solicitor on behalf of DePuy that of the 1,125 proceedings issued at the date of swearing of the affidavit in April 2019 revision surgeries to remove the ASR Products have occurred in 904 of these claims and 221 cases revisions are not being performed and accordingly these 221 would not qualify under the ADR scheme. I note that the vast majority of these 221 claims have not progressed beyond the service of an initiating writ. Presumably the plaintiffs and their legal advisors are waiting to see how their physical situation develops and whether they have a realistic prospect of success in litigation.

16 Of the 904 claims a total of 602...