The High Court has refused De Puy International Limited’s application to exclude expert witness Mr David John Langton from a case brought by Kiara Kenneally over hip implants. The ruling allows his evidence to be heard at trial; it does not determine the underlying claims or how much weight his evidence should receive.
Ms Kenneally’s proceedings allege liability in contract and negligence, and breach of statutory duty under the Liability for Defective Products Act 1991. She was born with bilateral acetabular dysplasia and received the company’s Articular Surface Replacement implants in both hips in 2005 and 2006. After painful symptoms developed in her left hip, she underwent revision surgery in October 2010. De Puy delivered a full defence, leaving her to prove liability, causation and damage.
The application arose after Ms Kenneally and Professor Dennis Bobyn had given evidence. De Puy objected to Mr Langton being called, arguing that his independence and objectivity were compromised by his involvement in US “qui tam” litigation against the company and his work as an expert in other cases against it. The US proceedings had been dismissed, with appeals pending. The High Court understood that, if successful, the appeals would confine those proceedings to De Puy’s Pinnacle product.
The judge found no basis to conclude that a successful outcome in Ms Kenneally’s case would materially affect the US litigation. He therefore rejected the argument that Mr Langton’s involvement there amounted to a financial interest in the outcome of this case. The court also accepted his explanations about disclosures and unsigned reports prepared before new expert-evidence rules came into force in October 2016.
The court was satisfied that Mr Langton had relevant expertise and understood his duty to give independent, objective evidence. It found that his continuing to express views he had formed before becoming involved in litigation against De Puy did not, on the evidence before it, make him an advocate for the plaintiff.
The order refused De Puy’s application and permitted Mr Langton’s evidence to be adduced. The judge stressed that this did not settle the question of his impartiality or the weight of his evidence. De Puy remained entitled to cross-examine him on those matters during the trial. The judgment also observed that an application to exclude expert evidence should be made as early as reasonably practicable when its grounds are already known.