Defendants to product liability claims seeking to rely on the ‘state of the art’ defence must be prepared to provide full particulars (or details) of the facts which they say support the defence prior to trial. The Court of Appeal made this clear in a recent decision arising from the DePuy hip implant litigation.

What is the ‘state of the art’ defence?

The ‘state of the art’ defence is one of the defences set out in the Product Liability Directive (Directive 85/37/EEC) and the Irish Liability for Defective Products Act 1991. The defence exempts a producer from liability where it can show that, in light of the state of scientific and technical knowledge at the time it put the product into circulation, it could not have discovered the particular defect.

MURPHY V DE PUY ORTHOPAEDICS & ORS

The decision in Murphy v DePuy Orthopaedics & Ors relates to DePuy hip implant litigation. The plaintiff is claiming damages for personal injuries which he says he incurred when he was fitted with an allegedly defective artificial hip device. His claim includes a claim under the 1991 Act. The DePuy defendants have raised the state of the art defence.

The plaintiff recently applied to the High Court for an order compelling the DePuy defendants to provide further details on the state of the art defence.

Specifically, the plaintiff sought further particulars as to the scientific and technical knowledge that existed at the time the artificial hip device was put into circulation. The DePuy defendants said that this was a matter for evidence and they declined to provide the particulars sought. However, the High Court made an order directing them to do so.

The DePuy defendants appealed to the Court of Appeal. The Court noted that a defendant is obliged to give particulars of facts on which it proposes to rely in its defence. It said that what the DePuy defendants were being asked to do was to state the facts (i.e. the state of scientific and technical knowledge at the time the product was put into circulation) on which they intended to rely for the purpose of advancing the state of the art defence. The Court said that the plaintiff is entitled to know, in broad outline, the facts upon which the DePuy defendants propose relying in pursuing the state of the art defence.

EXPERT REPORTS

The DePuy defendants argued that the expert reports already delivered in the case identified the scientific articles that would be referred to in evidence. However, the Court said that expert reports cannot fulfil an obligation to deliver particulars of fact in a defence. The Court also noted that the DePuy defendants accepted that none of the reports set out clearly the facts which DePuy contended constitute the relevant state of scientific and technical knowledge at the date the product was put into circulation. The Court said that therefore they could not constitute the delivery of particulars to which the plaintiff was entitled.

TIMING OF TRIAL

The Court also said that the fact that the trial was due to take place shortly was not a good reason to refuse to give the plaintiff particulars to which it was otherwise entitled.

AFFIDAVIT OF VERIFICATION

The Court also noted that a representative of DePuy had sworn an affidavit of verification in the proceedings verifying that the assertions, allegations and information contained in the defence were within his knowledge and were true. The Court said that this affidavit should not have been sworn in these terms without DePuy having identified what it considered to be the state of scientific and technical knowledge at the time of circulation relevant to the alleged defects. The Court said that without having identified and considered this information, DePuy could not have formed the view that it had at least an arguable defence.

INVOKING THE ‘STATE OF THE ART’ DEFENCE

This decision applies to all defendants who wish to invoke the state of the art defence in Irish product liability cases. It makes clear that:

  • it is not enough to plead the state of the art defence in bald terms with the intention of providing full evidence on this point at the trial of the action.
  • a defendant must, at least in broad outline, be in a position to put forward the facts on which it intends to rely in support of the state of the art defence.
  • expert reports cannot fulfil the role of particulars of fact in a pleading.
  • a person who swears an affidavit of verification in a personal injuries defence must be in a position to verify all facts relied on.