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Landmark decision in Metal-on-Metal Hip product liability litigation

21 May 2018. Published by Genevieve Isherwood, Senior Associate

This morning Mrs Justice Andrews DBE handed down a landmark judgment in the 'biggest ever' products group litigation England and Wales has seen.

Today's decision to find for the Defendant in the DePuy Pinnacle Metal-on-Metal ("MoM") hip litigation is one that will have a significant impact on the future of products litigation.

Thousands of patients, all over the world, have been implanted with MoM hip prostheses, many of whom commenced litigation. In England and Wales the claims were primarily brought against manufacturers of orthopaedic devices (but also involved private healthcare providers, NHS Trusts and individual surgeons) and concerned an alleged adverse reaction to the MoM implants.

Ten different manufacturers faced claims from hundreds of individuals, and various Group Litigation Orders were put in place to manage the claims. In late 2015 it was ordered that a trial of preliminary issues should take place in the Group Litigation against manufacturers DePuy and Corin (to be heard together). All other claims were stayed pending the outcome. The trial of the claims against Corin was subsequently vacated and only the DePuy Pinnacle litigation proceeded.

The Claimants' case was that the MoM hip implants were defective under the Consumer Protection Act 1987 ("CPA") - i.e. their safety was 'not such as persons generally are entitled to expect' – because they had suffered an adverse reaction to the metal debris ("ARMD") that is generated from the articulating surfaces of the metal "ball and socket" joints. The threshold for a claim under the CPA is much lower than in negligence as there is strict liability so long as there is a defect in the product and this defect caused injury or damage. It is therefore a powerful tool for Claimants.

In the DePuy Pinnacle litigation the Claimants' primary case on defect was the alleged propensity to produce metal debris. There was also a secondary allegation that the Pinnacle implants required earlier revision than other comparable products.

There had previously been two key decisions in relation to the CPA: A v National Blood Authority in 2001 and Wilkes v DePuy in 2016. National Blood Authority found for the Claimants; and Wilkes found for the Defendant. In reaching their different conclusions (albeit on two very different sets of facts) the judges used widely contrasting methods of analysis. As both decisions were first instance the law on bringing a claim under the CPA remained unclear and somewhat contradictory. Andrews J's judgment given this morning goes some way to clarifying the position (although, as another first instance decision, it does not overturn the previous two).

The decision to find in favour of DePuy should reassure manufacturers (and their insurers). It bolsters an argument (along with Wilkes) that National Blood Authority should be distinguished (or approached with caution), meaning a claim under the CPA should be easier to defend. It also provides much needed guidance on what should be considered a defect under the CPA, what relevant circumstances the Court should take into account when considering a claim under the CPA, and on what basis comparisons to other products should be made. We will be considering these points, and providing guidance on the practical impact of the decision, in our upcoming blog series. However, for now, manufacturers (and insurers) can be content that this landmark decision has gone in their favour.


RPC represented Corin in the Corin Metal-on-Metal hip litigation

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