Re Depuy International Ltd

JudgeMr. Justice Cross
Judgment Date05 May 2017
Neutral Citation[2017] IEHC 267
Date05 May 2017
CourtHigh Court
Docket Number[2017 No. 32 MCA] [2013 No. 65 P.] [2012 No. 13064]

[2017] IEHC 267


Cross J.

[2017 No. 32 MCA]

[2013 No. 65 P.]

[2012 No. 13064]


Damages and Restitution – Personal injury – Defective hip implant – Revision surgery – Extension of Additional Dispute Resolution (ADR) scheme – ADR valuation – O. 56A, r. 2(2) of the Rules of the Superior Courts – Compensation – Review of ADR process

Facts: The plaintiffs sought damages from the defendants for the injuries suffered due to the defective hip implants manufactured by the defendants. The High Court referred the matter for ADR wherein all those who had undergone revision of surgery were eligible for the ADR scheme. The plaintiffs contended that the ADR process should be extended to those who had not as yet undergone the revision surgery and also demanded an increase in the amount of already accepted ADR valuation. The plaintiffs also contended that the Court should withdraw the prohibition that no further proceedings be listed for hearing against the defendants pursuant to o.56A r. 2(2) of the Rules of the Superior Court for those cases that apparently had qualified for the scheme.

Mr. Justice Cross rejected all the applications raised by the plaintiffs. The Court refused to raise the amount already agreed upon at the ADR valuation for the damages to be given to one of the plaintiffs. The Court held that extending the ADR scheme to the parties that had not undergone the revision of surgery would result in the rejection of the determination of the assessors by the defendants and thus, another layer of litigation would be added to the list of pending cases. The Court stated that it would also open door for every person in making the claim for compensation. The Court observed that the prohibition u/o 56A (2) (2) was limited to those who had qualified for the scheme and was subject to revision of the process by the Court at an interval of six months. The Court noted that those who did not wish to consent for the ADR process might apply to the Court for a further trial after informing the Court of the reasons why the scheme was not being utilised by the aggrieved party.

JUDGMENT of Mr. Justice Cross delivered on the 5th day of May, 2017

Depuy International Ltd. (Depuy) are defendants in a number of High Court actions in which the plaintiffs allege damages for injuries caused by the allegedly defective implanted hips supplied by Depuy.


As the court was advised that there were approximately 1,000 of these cases pending, and each case would be expected to last up to six weeks, the court invited the parties to establish an Alternative Dispute Resolution (ADR) scheme in order to deal with a number of these cases.


After a series of motions in this Court in which various parties suggested various aspects to a scheme, the court, by order of 16th December 2015, established an ADR scheme whereby certain cases could be disposed of without hearing evidence by a panel of Evaluators selected by the Chairman of the Bar Council on the papers before them and without any determination of liability.


As I indicated at the time and subsequently thereto, there was little point in establishing a scheme for all of the plaintiffs if Depuy would decline any awards made in those categories. Accordingly, the scheme proposed that the applicants should lodge a form with Depuy and submit documents and records as required. After perusing those documents, Depuy would then decide if they would consent to the case coming under the scheme. Grounds for Depuy excluding a case would include that PIAB authorisation had not been obtained, the case was apparently statute barred etc.


The scheme also only applied if the implant of their product occurred in Ireland and the claimant underwent revision surgery in Ireland within ten years of the operation, but not earlier than 180 days after the operation.


The reason for the exclusion of claims where the hip had not been revised was that in cases where there was no revision of the hip, the allegedly defective hip could not be analysed scientifically, so it would be a matter of speculation as to whether any injuries had occurred or whether there was any alleged defect in the product.


The order of this Court of 16th December, 2015, established the scheme and invited the parties to use the ADR process, refused the application of Depuy to adjourn any of the proceedings currently listed for trial, but ordered, pursuant to O. 56A, r. 2(2) of the Rules that no further proceedings in the Depuy litigation be listed for hearing pending a first report approximately six months thereafter, save and except by application to this Court. The court indicated that the ADR scheme would be kept under review every six months or so.


In relation to the ADR scheme, the matter was put in for first review on 27th July 2016, and at that stage, there were some 609 outstanding proceedings in Ireland against Depuy in respect of their product, and in 345 of those cases, the plaintiff had undergone revision and that only in those cases could the claimant enter the process.


On that occasion, I stated:

‘That the virtual blanket refusal of trial dates from me, certainly in relation to those matters that do not come within the ADR scheme should be revised

When the parties are ready, in the normal course of events trial dates should be available for those parties …’


The court has kept the progress of the scheme under review at six monthly intervals. It is the intention of the court that these reviews or any ancillary inquiries be as informal as possible. It is the general intention of the court that these issues be disposed of without cost to either side. Since the first review, the court has ordered some trials to be allowed to proceed and accordingly allocated some dates after the first review in July 2016. Dates can be allocated for trial in cases that do not come within ADR scheme or for other stated reasons subject to the court's discretion.


Since the establishment of the ADR scheme, a number of cases have over the period, been settled, out of the List, prior to trial and a number of cases have been listed for trial. Some of these cases have settled on the morning of the trial; others have settled after a number of days or even weeks into the trial.


There has only been one case which went to a final determination and that was a case that took a number of weeks in which the defendants had entered a limited defence in which they did not concede liability, but did not contest their obligation to compensate the plaintiff. In my decision in that case, I indicated that notwithstanding that concession, there seemed to have been no significant limitation in the time the case took for hearing.


From the foregoing, it is clear that there has been no judicial determination in this jurisdiction as to the liability of Depuy in respect of their allegedly defective hips.


As of 20th April 2017, the solicitors on behalf of Depuy have apparently received 153 Form Bs (the necessary preliminary form to enter into the ADR scheme), so accordingly, there are nearly two hundred further cases that appear to be eligible for the ADR scheme that have not yet applied. It may be that some of the outstanding proceedings referred to earlier, which do not now qualify, will subsequently qualify for the scheme. But to date, it has to be said, notwithstanding the submissions on behalf of Depuy, that the progress has been lamentably slow.


The slowness of the scheme has been pointed out by the Chair of the panel of adjudicators in correspondence with the parties.


Of the 153 Form Bs received, 97 have been endorsed from a total of 48 different firms; 16 of the claims have been deemed ineligible and a total of 14 evaluations have been made, all of which have been accepted by Depuy, 10 of which have been accepted by the plaintiffs, two of which rejected by the plaintiffs and two accepted by Depuy, but a decision on behalf of the plaintiff is awaited, and a further 11 of the cases submitted to ADR have been settled during the process but prior to evaluation.


Of the 16 claims that Depuy have deemed to be ineligible, they refused to admit them into the scheme on the basis that they do not qualify due to factors such as lack of PIAB authorisation or that the revision was due to allegedly an unrelated infection or that they were unrevised or revised less than 180 days prior to surgery etc.


In a number of applications before the court since the first report in July 2016, counsel on behalf of the various applicants has complained of excessive and unnecessary requirements by Depuy for medial records and paperwork, and counsel on behalf of Depuy has complained about solicitors for the applicants not having their paperwork ready.


As I commented in the course of the motions before me in this matter, it is not my function at this point to adjudicate on fault between the parties, sufficient to say the ADR scheme has not worked with the ease and efficiency that I had anticipated.


In this regard, these applications were made on 25th April 2017 by a number of solicitors in respect of the scheme.


The first application was made on behalf of Malcomson Law Solicitors in the case of John Flynn v. Depuy & Ors., but the submissions were made also on behalf of all the clients of Malcomson Law Solicitors, who qualify for the ADR scheme. This application was supported by counsel on behalf of Ernest Cantillon Solicitors who also have a number of clients.


I will deal with this application secondly.


An application was also made on behalf of Peter McDonald & Company Solicitors who have...

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2 cases
  • Ahearne v O'Sullivan and Others
    • Ireland
    • Court of Appeal (Ireland)
    • 31 May 2023 the fifth named defendants and others. As was observed by Cross J. in his judgement in Flynn v DePuy International Limited & Ors [2017] IEHC 267, at paras. 1 – 2 thereof, there were approximately 1,000 personal injury cases involving defective prosthetic hip implants developed/manufactur......
  • DePuy ADR Process v DePuy International Ltd
    • Ireland
    • High Court
    • 20 December 2019 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 th......

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