Product Liability Litigation: Adequacy Of Particulars & Continued Use Of Defective Product

Author:Ms Isabel Foley, Orla M. Clayton and Joanelle O'Cleirigh
Profession:Arthur Cox

Manufacturers of products will be interested in two recent court decisions, one from the Irish High Court and one from the English Court of Appeal. In the Irish case, the High Court considered the adequacy of particulars in product liability litigation. In the English case, the Court of Appeal allowed a manufacturer to escape liability for a defective product as the plaintiff continued to use the product even though it knew that it was defective.


Earlier this year the Irish Court of Appeal held, in Murphy v DePuy Orthopaedics, that defendants to product liability claims seeking to rely on the "state of the art" defence must be prepared to provide full particulars of the facts which they say supports the defence at the pre-trial stage (see our article on this case here). This decision was recently relied on by the High Court in Coleman Harvey v DePuy International Ltd. The High Court in that case also considered the adequacy of particulars of "defects" in product liability litigation. While the adequacy of particulars furnished by a party to proceedings is often an issue before the Irish courts, it is rare that the courts have an opportunity to consider this issue specifically in the context of product liability litigation.

In Coleman Harvey v DePuy International Limited, which, like the Murphy case, related to the DePuy hip implant litigation, there were two motions before the High Court. The first was the defendants' motion for further and better particulars of the exact defects the plaintiff alleged existed in the hip implants. The second was the plaintiff's motion for further and better particulars of the state of scientific and technical knowledge which the defendants alleged existed at the time the implants were put into circulation.

The plaintiff submitted that all that was required of him by law was to supply sufficient particulars so that the defendants would know "in broad outline" the case they have to meet at trial. However the High Court explicitly stated that:

in product liability cases, a plaintiff must establish that there was a defect in the product with sufficient particularity so that the defendants know exactly what defect is alleged. the plaintiff is not required to specify whether the alleged defect was a design or manufacturing defect. once the plaintiff furnishes particulars clarifying the alleged defect, the defendant must then provide full and detailed...

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