Kenneally v De Puy International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 13 December 2016
• Neutral Citation: [2016] IEHC 728
• Docket Number: [2012 No. 13047 P]
• Court: High Court
• Date: 13 December 2016

BETWEEN

KIARA KENNEALLY

PLAINTIFF

AND

DE PUY INTERNATIONAL LIMITED

DEFENDANTS

[2016] IEHC 728

Barton J.

[2012 No. 13047 P]

THE HIGH COURT

Tort – Medical negligence – Product liability – Liability for Defective Products Act, 1991 – Implantation of defective product during surgery – Admissibility of expert evidence – Rules of Superior Courts (Conduct of Trials), S.I. No. 254 of 2016 – Conflict of interest

Facts: The plaintiff had filed a claim for breach of contract and negligence against the defendant for manufacturing of a defective product which was implanted during the plaintiff's hip surgery. The plaintiff had adduced evidence of two experts, one of which was being objected by the defendant on the issues of impartiality and objectivity. The defendant now came to the Court seeking to declare the testimony of the named expert as being inadmissible. The prime contention raised by the defendant was that since the named expert was a party against the defendant in litigation already going on in the United States, the evidence adduced by that expert was tainted with partiality and subjectivity.

Mr. Justice Bernard J. Barton dismissed the application filed by the defendant. The Court held that the power to allow and disqualify an expert witness should be exercised with great circumspection. The Court observed that before making an order to not admit an expert testimony, regards should be had to four factors, namely, the degree to which expert evidence would assist the Court, degree of his knowledge and expertise; impartiality of the witness in assessment of evidence and existence of reliable body of knowledge to underpin the expert's evidence. The Court found that the named expert witness possessed the desired qualifications and experience to adduce evidence and had no financial interest in the present case except for an agreed fee.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 13th day of December, 2016.

1 This is the judgment of the Court in relation to an applicaion made by the Defendant to have ruled inadmissible the evidence of Mr. David John Langton PhD, an expert witness proffered on behalf of the Plaintiff.

Background.

2 The Plaintiff was born on 5th January, 1989. She developed a constitutional medical condition known as bilateral acetabular dysplasia as a result of which she underwent left hip surgery on 17th August, 2005; the surgery involved the fitting of Articular Surface Replacement (ASR) total acetabular and femoral implants designed, manufactured and supplied by the Defendant.

3 Initial results post operatively were very promising. The Plaintiff required and underwent right hip surgery on 25th May, 2006 at which she was also fitted with ASR implants. Within a relatively short time frame following the first but after the second surgery, the Plaintiff began to develop painful symptoms in her left hip which were attributable to a progressive failure of the ASR implants as a result of which she had to undergo left hip revision surgery in October, 2010.

4 By that time in 2010, failure rate volumes for the ASR implants had become know and were such that the Defendant voluntarily recalled its ASR XL implants in the United States before the Food and Drugs Administration (FDA) in the U. S. took action. On the recall form filed by the Defendant with the FDA, a box was ticked to indicate that the recall was the result of a ‘… defective product that would affect product performance and/or could cause health problems’.

5 The Plaintiff brings these proceedings against the Defendant in contract and in negligence, as well as for breach of statutory duty pursuant to the provisions of the Liability for Defective Products Act 1991. The Defendants have delivered a full defence; accordingly, the Plaintiff is put on proof in respect of liability, causation and damage.

Objection to admissibility of expert evidence

6 The first consideration of any court on the admissibility of expert evidence is to ascertain whether such evidence is required at all; is such evidence necessary to assist the Court in the task of determining the issues in respect of which it is proposed to be adduced. That question does not arise for consideration in this case; the issues raised on the pleadings are such that the assistance of expert testimony will be necessary to assist the Court in reaching a decision on those issues.

7 The Plaintiff and Professor Dennis Bobyn, PhD, an expert in biomaterials and biomechanics, have already given evidence to the Court. At the conclusion of Professor Bobyn's evidence the Plaintiff sought to call Mr. Langton as an expert witness. He holds a number of qualifications including that of a medical surgeon and holds a PhD in metal on metal hip replacements.

8 The Defendant objects to Mr Langton's evidence being received by the Court on a number of grounds the essence of which is a challenge to his independence and objectivity and hence to his impartiality as an expert.

9 The central but by no means only contention of the Defendant is that his personal involvement as a party in litigation against the Defendant in the U.S. in respect of which, if successful, he stands to benefit financially and his involvement as an expert in numerous other cases against the Defendant hopelessly compromises his objectivity and independence; in short he is “a gun for hire” who has become an advocate for a cause.

10 While accepting that Mr. Langton and Mr. Nargol, another expert whom the Plaintiff intends to call as a witness, have undoubtedly been a “thorn” in the side of the Defendant, this application is, not surprisingly, strenuously resisted by the Plaintiff.

Submissions and the Law.

11 Apart from the differentiation and consequential significance which the Defendant has invited the Court to draw between the decision of this court in O'Sullivan v. De Puy International Limited [2016] IEHC 684 delivered by Cross J. on the 29th November last and these proceedings insofar as that judgment relates to the same issue, there was general agreement between the parties as to the law.

12 Written and oral submissions have been made and have been considered by the Court. I do not intend to summarise these here; suffice it to say that given the measure of agreement on the law concerning the matter in issue it seems appropriate and convenient to commence with the following summary.

13 The Court has been given to understand that almost all of the expert reports intended to be relied upon by the parties in these proceedings were prepared prior to the coming into force on 1st October 2016 of the Rules of the Superior Courts (Conduct of Trials), S.I. No. 254 of 2016. (The new rules). The significance of the change brought about by these new rules has already been the subject of judicial comment. See O'Brien v. The Clerk of Dáil Éireann and Ors [2016] IEHC 597 where the President observed that the new rules give ‘… a measure of badly needed statutory control to the Court in respect of expert evidence. The various decisions in recent years where judges both at trial and at appellate level have commented adversely on the number, extent and cost of experts, demonstrates this need. Under this rule (O. 36, r. 58) the court is entitled to restrict such evidence to that which is reasonably required to enable the court to determine the proceedings. No longer are parties free to call expert witnesses willy nilly. The court can determine what is needed and restrict expert testimony accordingly.’

14 A perusal of the new rules shows that many of these are expressly restricted to certain types of litigation; some of the rules are of general application but expressly exclude certain types of proceedings. By way of example the amendment of O. 20 by the inclusion of a number of new rules including rules 12 and 23 which require the plaintiff or defendant in proceedings proposing to offer expert evidence on any matter at trial to disclose that intention in the statement of claim or the defence, as the case may, exclude the application of those rules to ‘personal injury actions’. Other rules contain no such restriction.

15 The new rules amend O. 36 of the Rules of the Superior Courts 1986 in a number of significant respects including those provisions which are concerned with expert evidence comprised in rules 56 to 61. Of these Rules 59 to 61 are restricted to cases listed for trial or hearing in the Commercial and Competition lists and to proceedings in which an order may be made under O. 63 C, r. 4. ( S.I. No. 255 of 2016). That S.I. applies to Chancery and Non Jury actions and to certain personal injury and jury actions which have been designated by the President in accordance with sub rule (2) as proceedings to which the Order is to apply. So far as the Court is aware these proceedings have not been so designated.

Disclosure; duties and obligations of experts under the new rules

16 The duties and obligations of experts to make disclosure are set out in Rule 57 (1) and (2) which expressly provide for: (i) the duty which an expert owes to the Court, (ii) the primacy of that duty over any obligation to the party paying the fee of the expert, (iii) the necessity to include an acknowledgment of that duty by the expert in the report submitted, and (iv) the disclosure of certain specified financial interests. This rule has some significance in the context of the grounds advanced by the Defendant in support of its application and to which I now turn.

17 Whilst not by any means the only ground relied upon by the Defendant, it is I think fair to categorise the main thrust of the Defendant's submission as being centred on the Plaintiff's involvement with Mr. Nargol as litigators in American proceedings, known as ‘ qui tam’ litigation, on foot of which, if they are successful, both stand to obtain monetary compensation likely be...