The Court of Appeal has required two DePuy defendants to give fuller particulars of a defence in a personal injury action concerning an allegedly defective artificial hip device.
The appeal concerned an order made by the High Court on 26 January 2016, directing DePuy International Limited and DePuy France to answer particulars sought by Richard Murphy. The defendants appealed. The Court of Appeal judgment was delivered by Ms Justice Finlay Geoghegan on 3 February 2016.
Murphy claims damages for personal injuries after an artificial hip was inserted. He alleges defects in the device and relies, among other things, on the Liability for Defective Products Act 1991. The defendants deny liability. After obtaining permission in December 2015 to amend their defence, they pleaded that they would rely on section 6(e) of the Act if the product were found to be defective. That provision can exempt a producer from liability if the scientific and technical knowledge when the product entered circulation was not such as to enable the defect to be discovered.
Murphy sought particulars of the scientific and technical knowledge relevant to the alleged defects at the time the product was put into circulation. The defendants said the request sought evidence rather than particulars, and pointed to expert reports already exchanged. They also relied on the volume of information involved and the proximity of the trial.
During the appeal hearing, the dispute over a separate request concerning which alleged defects the section 6(e) defence applied to was resolved. The defendants confirmed that they proposed to rely on that defence, if necessary, in respect of each alleged defect. That issue therefore no longer remained before the court.
The Court of Appeal held that the state of relevant scientific and technical knowledge was a question of fact for the court to determine. The defendants would have to establish both what that knowledge was at the relevant time and that it did not enable the defect in question to be discovered. The court said Murphy was entitled to know, in broad outline, the facts on which the defendants proposed to rely.
The court concluded that the exchanged expert reports did not clearly set out those facts and did not satisfy the obligation to provide particulars. It also rejected the timing and volume of information as reasons to withhold them, noting that the defendants had sought to amend their defence close to trial.
The Court of Appeal upheld the High Court decision in substance but varied the order. It required a reply to one particular: the state of scientific and technical knowledge relevant to the alleged defects when the hip replacement product inserted into Murphy was put into circulation. The judgment noted that different parts of the product entered circulation on different dates between March and November 2005. It left any refinement of the wording to be addressed with counsel. The appeal judgment did not determine whether the device was defective or whether the defendants were liable.