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Hendersons - Barristers' Chambers
Articles Group Actions 21st May 2018

Success for Defendant in DePuy Pinnacle Metal on Metal hip litigation

In a decision that will be very influential for other metal on metal claims, on 21 May 2018 judgment was given in favour of the defendant DePuy International Limited on preliminary issues in the DePuy Pinnacle Metal on Metal group litigation.

The preliminary issues included the correct legal approach to the assessment of defect under the Consumer Protection Act 1987 and the Product Liability Directive 85/374/EEC.  As the DePuy Pinnacle Metal on Metal group litigation was the first metal on metal group litigation to come to trial, the court gave permission for the parties in other metal on metal group litigation and managed litigation to make submissions on the law.  From Henderson Chambers, Malcolm Sheehan QC and James Purnell made submissions on behalf of Biomet UK Limited, Prashant Popat QC and Geraint Webb QC made submissions on behalf of Smith & Nephew Orthopaedics Limited and Oliver Campbell QC made submissions on behalf of Wright Medical Technology Inc.

In her decision Mrs Justice Andrews favours the legal approach to the interpretation of the Act and the Directive  put forward by DePuy, Biomet, Smith & Nephew, Wright Medical Technology Inc and Zimmer GmbH and Zimmer Limited.  She rejected the Claimants’ argument that the potential for damage associated with a product could be a defect for the purposes of the Act and the Directive where the potential for damage identified is a normal risk associated with normal use of the product.  In these circumstances a claimant must establish that there was an abnormal risk associated with the allegedly defective product when compared with the appropriate comparator product.

Mrs Justice Andrews held that the DePuy Pinnacle Claimants had failed to adduce reliable evidence that the Pinnacle Ultamet prosthesis had an abnormal risk of revision when compared to the entitled expectations of persons generally at the time the prostheses were introduced to the market.

Mrs Justice Andrews’ findings on important issues such as the relevance of risk/benefit factors, the relevance of the avoidability of risk, the relevance of regulatory compliance and the significance of a learned intermediary will be of importance to future product liability claims in general.  Her determination that the NICE 2000 guidance was not a safety benchmark and her findings about the unreliability of UK National Joint Registry data for the purposes relied on by the Pinnacle Claimants are likely to be influential in all future metal on metal hip claims.

A copy of the judgment is available here.

Read our Alerter here , by Noel Dilworth and Hannah Curtain


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