The High Court has refused an application by defendants in a Thalidomide injury claim to inspect two medical expert reports before the usual exchange of expert evidence.
In a judgment delivered on 6 December 2018, Mr Justice Noonan held that the defendants had not shown that early inspection was necessary for the fair disposal of the case. The decision concerned access to the reports at this stage; it did not determine the claimant’s injury claim or the underlying limitation dispute.
Sandra Dunne claims that birth defects she suffers were caused by her mother taking Thalidomide during pregnancy. She is suing the drug’s manufacturer, its Irish distributor and State defendants. The allegations have not been determined.
Dunne was born in 1961 and the personal injury summons was issued in July 2017. The defendants rely on the Statute of Limitations. Dunne pleads that her date of knowledge for limitation purposes occurred no earlier than 25 November 2015, when she says she received medical opinion linking her injuries to maternal Thalidomide use.
Her pleadings refer to examinations and opinions by consultant clinical geneticist Dr Willie Riordan in November 2015 and Professor Trent Stephens in February 2016. The defendants sought the reports for inspection under the Rules of the Superior Courts. Dunne refused, saying they would be disclosed in due course under the rules governing exchange of expert reports.
The judge said the reports had been cited for the limited purpose of establishing when Dunne says she first learned of the alleged cause of her injuries. The defendants already knew the conclusion she attributed to the reports, and the way the experts reached that conclusion was not material to the date-of-knowledge issue before the court on this application.
Noonan also considered the risk of giving the defendants an advantage by letting them analyse Dunne’s reports before they were required to exchange their own, if any. Referring to earlier decisions on simultaneous exchange of expert reports, he said ordering inspection at this point could create the unfair advantage those decisions sought to avoid.
The court therefore refused the application to compel production for inspection. The judgment did not decide whether the reports’ conclusions were correct, whether the claim was time-barred, or the merits of the claim.