The High Court has directed a plaintiff suing over DePuy ASR hip implants to provide further particulars on several alleged defects, and ordered the manufacturers to give detailed particulars of the scientific and technical knowledge they say existed when the products entered circulation. The manufacturers’ obligation to reply is deferred until the plaintiff provides the particulars ordered by the court.
In a judgment delivered on 5 July 2016, Mr Justice Barr considered cross-motions for particulars in a personal injuries action. The plaintiff alleges that a DePuy ASR artificial left hip inserted in July 2005 was defective and that he underwent revision surgery in March 2007. He alleges that a second implant was defective and that further revision surgery followed in September 2011. These are allegations; the judgment does not decide whether either implant was defective or determine the underlying injury claim.
The manufacturers sought greater detail about alleged design and performance problems, including the implants’ arc of cover, clearance, wear and edge loading. The court held that the plaintiff must state the actual or approximate arc of cover alleged for his implant and the point at which he says it becomes defective. He must also give the alleged reduction in arc of cover caused by thickening the cup walls, the actual clearance alleged and the clearance level below which he says a defect arises, and the factual basis and details of increased wear attributed to the rim inside the acetabular component. The court also ordered particulars of what the plaintiff says amounts to excessive edge loading, what occurred in relation to his device, and the basis for alleging that the first and second defendants caused, allowed or permitted it.
The court declined to require the plaintiff to classify alleged defects as design or manufacturing defects, or to explain how each defect separately caused particular injury or loss. It also found that several other requests had been sufficiently answered, were matters of evidence, or sought information the plaintiff could not be expected to know, including the precise source and level of metal debris from different implant components.
The plaintiff sought detailed particulars of the scientific and technical knowledge relied on by the defendants under section 6(e) of the Liability for Defective Products Act 1991. The defendants’ existing response described the ASR product and metal-on-metal devices as state of the art and made general assertions about wear, clearance and edge loading. The judge found that response inadequate. He ordered the defendants to provide full and detailed particulars, but only after the plaintiff supplies the court-ordered replies. The judgment records that the orders set timeframes for both sides; it does not specify those dates in the text reproduced here.