Liam Grant v Roche Products (Ireland) Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 07 May 2008
• Neutral Citation: [2008] IESC 35
• Court: Supreme Court
• Docket Number: [S.C. No. 248 of 2005]
• Date: 07 May 2008

Grant v Roche Products (Ireland) Ltd & Ors

Between:

LIAM GRANT

Plaintiff/Respondent

and

ROCHE PRODUCTS (IRELAND) LIMITED

First defendant

and

F. HOFFMAN-LA ROCHE LIMITED

Second defendant

and

ROCHE HOLDINGS LIMITED

Third defendant

and

R.P. SCHERER LIMITED

Fourth defendant

and

ROCHE PRODUCTS LIMITED

Grant v Roche Products (Ireland) Ltd & Ors

Fifth defendant

and

THE IRISH MEDICINE BOARD

Sixth defendant

and

GILLIAN MURPHY

Seventh defendant

[2008] IESC 35

Murray C.J.

Hardiman J.

Geoghegan J.

248/05

THE SUPREME COURT

IRISH MEDICINES BOARD ACT 1995

CIVIL LIABILITY ACT 1961 PART IV

CIVIL LIABILITY ACT 1961 S47

CIVIL LIABILITY ACT 1961 S48

CIVIL LIABILITY ACT 1961 S49

HENDERSON v HENDERSON 1843 3 HARE 100

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

JOHNSON v GORE WOOD & CO 2001 2 WLR 72 2002 2 AC 1 2001 1 AER 481

GAIRY v AG OF GRENADA 2001 3 WLR 779 2002 1 AC 167

ASHINGDANE v UNITED KINGDOM 1985 7 EHRR 528

TINNELLY & SONS LTD v UNITED KINGDOM 1999 27 EHRR 249 1998 4 BHRC 393

FAYED v UNITED KINGDOM 1994 18 EHRR 393

MCSORLEY v O'MAHONY UNREP HIGH COURT COSTELLO 6.11.1996 1997/5/1636

CONSTITUTION ART 40.3.3

CIVIL LIABILITY ACT 1961 S48(1)

CORONERS ACT 1962

POWELL v UNITED KINGDOM 2000 30 EHRR CD 362

R (TAKOUSHIS) v INNER NORTH LONDON CORONER & ANOR 2006 1 WLR 461

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

BARRY v BUCKLEY 1981 IR 306

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425

K (D) v KING 1994 1 IR 166

CONLON v TIMES NEWSPAPERS LTD 1995 2 ILRM 76

JODIFERN LTD v FITZGERALD 2000 3 IR 321 1999/14/4003

GOLDSMITH v SPERRINGS LTD & ORS 1977 1 WLR 478

VARAWA v HOWARD SMITH CO LTD 1911 13 CLR 35

WILLIAMS v SPAUTZ 1992 174 CLR 509

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 12.3.1

CONSTITUTION ART 12.10.7

CONSTITUTION ART 14.1

CONSTITUTION ART 34.1

MESKELL v CORAS IOMPAIR EIREANN (CIE) 1973 IR 121

HANRAHAN v MERCK SHARP & DOHME (IRL) LTD 1988 ILRM 629

HOGAN WHYTE KELLY: THE IRISH CONSTITUTION 4ED 2003 1313

CONDON v CIE UNREP BARRINGTON 16.11.84 1985/1/52

1 Mr. Justice Hardiman delivered the 7th day of May, 2008.

2 In this action the plaintiff claims, on behalf of himself and of the other statutory defendants of Liam Grant Junior, deceased, and on behalf of the estate of the said Liam Grant Junior:

"Damages for mental distress, loss, damage and expense suffered by the plaintiffs and the statutory dependents by reason of the negligence, breach of duty and breach of statutory duty of the defendants and each of them their servants or agents".

3 The action is, therefore, what is often referred to as a wrongful death claim. The first to fifth named defendants, inclusive, are referred to below as the "Roche defendants". The first-named defendant is a limited company having its registered office in Clonskeagh, Dublin, and was at all material times engaged in the promotion and distribution of a drug known as Roaccutane on its own behalf and on behalf of the second, third and fifth named defendants. The second-named defendant is a company incorporated in Switzerland which was at all material times the parent company of the first, third and fifth defendants. The third defendant is also a limited liability company incorporated in Switzerland. The fourth defendant is a limited liability company incorporated in England and is the manufacturer of the drug known as Roaccutane. The fifth-named defendant is also a limited liability company incorporated in England and was at all relevant times the Product License Authorisation holder of the drug known as Roaccutane.

4 The Roche defendants are the moving parties on the present application.

5 The sixth-named defendant is a statutory body corporate established under the Irish Medicines Board Act, 1995 and having the functions set out in that measure. The seventh-named defendant is a consultant dermatologist carrying on practice in a Dublin hospital and who was at all material times a person permitted to prescribe the drug Roaccutane. This right was limited to consultant dermatologists.

The factual background.

6 The factual background to this case, and therefore to this application, is a tragic one.

7 The plaintiff and his late wife had four children, three boys and a girl. The deceased Liam Grant Junior was at the time of his death a twenty year old second year student of Electrical Engineering in University College, Dublin. He had no history of depression and is said - without contradiction - to have been a pleasant outgoing relaxed and genial person who was happy in his life and his studies. There was no family history of depression. He did however suffer from acne and consulted his general practitioner about this. After several visits and reviews the general practitioner referred him to the seventh-named defendant, a consultant dermatologist. It was she who prescribed him Roaccutane, to be taken orally on a four month course. In the month following this prescription the deceased became withdrawn and isolated. On or about the 15 ^th June, 1997, during the final week of the course of prescribed medication, the deceased took his own life.

8 The plaintiff says that the general practitioner was totally surprised at this tragic development and stated that the deceased was the last person she would have expected to commit or contemplate suicide. She further expressed concerns to the plaintiff about the drug Roaccutane and referred to depression as a side effect of it. As a result of this the plaintiff has commenced an elaborate and expensive process of investigation into the drug and the scientific literature about it, as well as its regulatory history.

9 The plaintiff claims that depression, suicidal ideation and suicide itself are recognised side effects of the drug Roaccutane. He claims that Roaccutane is a defective product when used for medical treatment in the manner intended by the Roche defendants and that they were negligent and in breach of duty in the various ways set out in the Statement of Claim. The plaintiff has himself researched the nature and history of the drug Roaccutane and has retained others to do so for him. He has over the years obtained a considerable volume of documentation. An example of this, chosen more or less at random, is a:

"Medical Officer's Review

NDA briefing psychiatric adverse effect".

10 This document is dated the 15 ^th April, 1998, and refers to Roche Pharmaceuticals as the "sponsor" of the drug there described as "Accutane". The document commences with a summary which states:

"In May, 1997, we discussed with the sponsor our increasing concern regarding the seriousness of psychiatric adverse events being reported with Accutane use (see attached memorandum dated May, 1997, which includes initial consult from Pharmaco Vigilence). Special emphasis was placed on the pattern of the events and the cases with positive de-challenge and/or re-challenge. At the time of the Tele-conference most of the sponsor participants did not agree that the reports reflected effects of Accutane, instead they felt that the reports reflected underlying psychiatric disease in the population being treated. Nonetheless, the sponsor agreed to investigate further and reply to our concerns in a timely manner."

11 It seems clear from the documentation assembled that, whatever the validity or lack of it attaching to the plaintiff's specific allegations against the defendants, there has been for a considerable time a volume of discussion in scientific and regulatory circles on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well as alleged birth defects associated with its use by pregnant women.

The present motion.

12 The plaintiff's proceedings continued with the delivery of a statement of claim on the 6 ^th July, 2000, followed by a long and detailed notice for particulars by the Roche defendants, replied to in September, 2001. On the 8 ^th February, 2002, the Roche defendants delivered a defence which is a full denial of liability and of all the plaintiff's allegations. Specifically there is a denial that Roaccutane "caused or contributed to the risk of severe depression or psychiatric disorders or suicidal ideation or suicide as alleged to at all."

13 On the 18 ^th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:

"An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein or, alternatively, restraining the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the plaintiff by solicitors for the first, second, third, fourth and fifth named defendants by letter dated the 13 ^th October, 2004, the relief sought by the plaintiff in the proceedings has been offered to him by these defendants and in those circumstances the continued prosecution of the proceedings would be an abuse of the process of the court."

14 This application was grounded on the affidavit of Mr. Roderick Burke, Solicitor, in this he refers to the extensive discovery which has been made in the case and to further discovery which may be anticipated. He says that on reviewing this:

"It became apparent to my firm and to the Roche defendants that the discovery ordered by the Master could be even more extensive than that previously estimated. Furthermore it became apparent that even on the basis of the discovery ordered by the Master any trial of the proceedings could last for many months and would be extremely time consuming and involve enormous expense. In those circumstances following a careful review of the plaintiff's claim, the Roche defendants instructed my firm to write to the plaintiff solicitors an open letter...