Manufacturers of products will be interested in two recent court decisions, one from the Irish High Court and one from the English Court of Appeal. In the Irish case, the High Court considered the adequacy of particulars in product liability litigation. In the English case, the Court of Appeal allowed a manufacturer to escape liability for a defective product as the plaintiff continued to use the product even though it knew that it was defective.

IRELAND: ADEQUACY OF PARTICULARS IN PRODUCT LIABILITY CASES

Earlier this year the Irish Court of Appeal held, in Murphy v DePuy Orthopaedics, that defendants to product liability claims seeking to rely on the "state of the art" defence must be prepared to provide full particulars of the facts which they say supports the defence at the pre-trial stage (see our article on this case here). This decision was recently relied on by the High Court in Coleman Harvey v DePuy International Ltd. The High Court in that case also considered the adequacy of particulars of "defects" in product liability litigation. While the adequacy of particulars furnished by a party to proceedings is often an issue before the Irish courts, it is rare that the courts have an opportunity to consider this issue specifically in the context of product liability litigation.

In Coleman Harvey v DePuy International Limited, which, like the Murphy case, related to the DePuy hip implant litigation, there were two motions before the High Court. The first was the defendants' motion for further and better particulars of the exact defects the plaintiff alleged existed in the hip implants. The second was the plaintiff's motion for further and better particulars of the state of scientific and technical knowledge which the defendants alleged existed at the time the implants were put into circulation.

The plaintiff submitted that all that was required of him by law was to supply sufficient particulars so that the defendants would know "in broad outline" the case they have to meet at trial. However the High Court explicitly stated that:

  • in product liability cases, a plaintiff must establish that there was a defect in the product with sufficient particularity so that the defendants know exactly what defect is alleged.
  • the plaintiff is not required to specify whether the alleged defect was a design or manufacturing defect.
  • once the plaintiff furnishes particulars clarifying the alleged defect, the defendant must then provide full and detailed particulars of what it alleges constituted the state of scientific and technical knowledge at the time the product was put into circulation.

The High Court was very specific as to the contents of the replies to be furnished by the plaintiff and went through the defendants' notice for particulars on a paragraph by paragraph basis. The defendants were not subject to the same scrutiny as the Court held that they did not have to provide detailed particulars of the state of scientific and technical knowledge until the plaintiff furnished detailed particulars of the alleged defects. However, once a plaintiff furnishes sufficient particulars of alleged defects, it would seem likely that a defendant can expect its replies to particulars of the state of scientific and technical knowledge at the time the product was put into circulation, to be scrutinised by a court with the same level of rigour.failure of Howmet's own internal work around system. The Court also found that the manufacturer did not owe Howmet a continuing duty in relation to the safety of the thermosensor as the defect was discovered before the damage took place.

This case underscores the importance of notifying alleged defects to manufacturers upon their discovery and ceasing to use equipment which is suspected to be defective. If you do not, aside from the obvious safety concerns, you open yourself up to carrying full liability for any issues which might arise.

ENGLAND: CONTINUED USE OF A DEFECTIVE PRODUCT

In a significant finding, the English Court of Appeal recently allowed a manufacturer to escape liability for a defective product as the plaintiff had continued to use the product knowing that it was defective.

In Howmet Limited v Economy Devices Limited, the owners of a factory (Howmet) brought a claim when the factory suffered fire damage, causing losses of approximately 20 million. They brought the claim against the manufacturers of an allegedly defective thermosensor which they claimed led to the fire. Prior to the fire, the thermosensor had failed on two occasions, but Howmet's employees had put a "work around" solution in place.

The Court of Appeal found that the effective cause of the fire was not the defective thermosensor device, but the failure of Howmet’s own internal work around system. The Court also found that the manufacturer did not owe Howmet a continuing duty in relation to the safety of the thermosensor as the defect was discovered before the damage took place.

This case underscores the importance of notifying alleged defects to manufacturers upon their discovery and ceasing to use equipment which is suspected to be defective. If you do not, aside from the obvious safety concerns, you open yourself up to carrying full liability for any issues which might arise.