Jackson v Johnson and Johnson Medical Pty Ltd

[2020] NSWSC 265

Supreme Court

New South Wales

Medium Neutral Citation:	Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265
Hearing dates:	17 March 2020
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) That leave be granted to the plaintiff to serve the report of Associate Professor Paul Miniter dated 10 February 2020. (2) That an extension of time be granted for service of that report until 4.00pm on Tuesday 17 March 2020. (3) That costs be costs in the cause.
Catchwords:	CIVIL PROCEDURE — time — extension of time — service of expert report out of time — whether necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 31.28
Category:	Procedural and other rulings
Parties:	Rhonda Annette Jackson (Plaintiff) Johnson & Johnson Medical Pty Ltd (First Defendant) De Puy International Ltd (Second Defendant) Dr Vinny Mamo (Third Defendant)
Representation:	Counsel: A J Bartley SC with J A Hillier (Plaintiff) B Kelleher (First and Second Defendants) M Windsor SC (Third Defendant)   Solicitors: Commins Hendriks (Plaintiff) Norton Rose Fulbright Australia (First and Second Defendants) HWL Ebsworth (Third Defendant)
File Number(s):	2013/78473
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. This matter comes before the Court today pursuant to a motion filed by the plaintiff seeking leave to rely on the report of Associate Professor Paul Miniter dated 10 February 2020.

2. A further order is sought that Associate Professor Miniter participate in the Liability and Causation Biomechanics Joint Conference.

3. These proceedings are listed for hearing before me for three weeks commencing 27 April 2020. At this stage, the proceedings are going ahead, subject to any developments which might arise over the next few weeks.

4. Mr Bartley of Senior Counsel appears with Ms Hillier for the plaintiff, Mr Kelleher of counsel appears for the first and second defendant, and Mr Windsor of Senior Counsel appears for the third defendant. I understand all of those Counsel will be appearing on the hearing of the matter and that Mr Dick of Senior Counsel will be leading Mr Kelleher.

5. The plaintiff seeks to rely on the report of Associate Professor Miniter in circumstances in which the plaintiff is well out of time to serve the report in terms of the orders of the Court.

6. The plaintiff relies on two affidavits of Tonya Teresa Longmore sworn 26 February 2020 and 6 March 2020. Ms Longmore is a solicitor in the employ of the solicitor for the plaintiff. She deposes to the background to the matter and refers to all of the earlier medical evidence which has been served by the parties and offers some explanation as to the reasons why the plaintiff is now seeking to rely on the report of Associate Professor Miniter at such a late stage.

7. The first and second defendants rely on affidavits of Ms Cara Walsh, affirmed on 11 March 2020 and 16 March 2020. The first and second defendants oppose the orders sought. The third defendant supports the plaintiff’s application.

8. The background to the matter is that on 4 March 2009, the Plaintiff underwent a right total knee replacement. During that operation, a DePuy DUOFIX Femoral knee component was inserted.

9. It is the plaintiff's case that that component was defective and that the component part failed as a result of metallosis.

10. The prosthetic part was explanted in March 2011 and the plaintiff underwent revision surgery. I understand that she says that she suffers from significant on-going disability in her right knee and claims damages accordingly.

11. The first and second defendants are the manufacturer and distributor or supplier of the prosthetic part. They deny that the injury, loss, and damage suffered by the plaintiff was caused by any failure of the prosthetic part and any metallosis. The third defendant is the treating surgeon and was joined later to the proceedings on the basis that there is conflicting medical evidence as to the true cause of the plaintiff's disabilities. That is, the plaintiff alleges that the third defendant was negligent in the treatment provided to the plaintiff and I anticipate that the first and second defendants would join in that allegation.

12. So the central issue in the proceedings, so far as I can determine at the moment, is the cause of the plaintiff's on-going disabilities; that is, whether they result from the manifestation of ordinary risk factors associated with the type of operations the plaintiff has undergone, or whether they be caused by a deficiency in the prosthetic part or whether they be caused by some act, error, or omission of the treating doctor.

13. As set out in the affidavits of Ms Longmore, in 2019 the plaintiff became aware of the existence of Associate Professor Paul Miniter, a doctor who professes to have some experience and expertise in assessing and dealing with problems associated with the prosthetic part. It is agreed between the parties that there had been an earlier class action against at least the first and second defendants and that the plaintiff has opted out of that class action.

14. When the plaintiff originally served the report of Associate Professor Miniter, the plaintiff also included a 2012 affidavit of the doctor. The plaintiff no longer relies on that affidavit.

15. The first issue that I am required to determine is whether this is an application in which the plaintiff needs to show exceptional circumstances. As set out in r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), each party must serve experts’ reports and hospital reports on each other in accordance with any order of the court or any relevant practice note not later than 28 days before the date of the hearing at which the report is to be used. There is no dispute that the report of Associate Professor Miniter has not been served in accordance with the orders of the Court.

16. As set out in UCPR r 31.28(4):

Leave is not to be given as referred to in subrule (3) unless the Court is satisfied—

(a)   that there are exceptional circumstances that warrant the granting of leave, or

(b)   that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

17. Mr Bartley initially made submissions on whether I should grant leave on the basis that he had established exceptional circumstances. That submission was supported by Mr Windsor who added to Mr Bartley’s list of exceptional circumstances with reference to an affidavit of a Mr Bockhurst, recently served by the first and second defendants.

18. In my view, it is not necessary that the plaintiff show exceptional circumstances. Rule 31.28(4) of the UCPR refers only to whether leave should be given as referred to in sub-rule (3). As set out in sub-rule (3) except by leave of the court or by consent of the parties an expert report or hospital report is not admissible unless it has been served in accordance with the rule.

19. In my view, sub-rule (3) deals with questions of admissibility. I am not dealing with questions of admissibility today. If the plaintiff had not sought an order from the Court that it be granted leave to serve the report out of time then on the hearing of the matter the defendants would have been able to oppose the admission of the report and the plaintiff would have been required to demonstrate exceptional circumstances for that report to be admissible.

20. As such, it is not necessary that I consider whether the plaintiff has demonstrated exceptional circumstances.

21. The application falls to be determined on what I will call a conventional basis. That is, the plaintiff seeks an order from the Court effectively extending the time for service of the report. The Court has a general discretion to vary its earlier orders or extend the time for service in the appropriate case.

22. The first and second defendants oppose the orders being made on two bases, both of which they say demonstrate prejudice to them.

23. Firstly, Mr Kelleher points to what he says are the deficiencies in the report in terms of the lack of reasoning and the reference to other cases as if the doctor is giving evidence in the nature of tendency evidence. He raises an admissibility issue.

24. Secondly, he says there is a danger in allowing the plaintiff to rely on the report at such a late stage because Associate Professor Miniter will be required to participate in the conclave and the other doctors who involve themselves in the conclave will not be aware of the real basis of Associate Professor Miniter’s opinion and may be caught by surprise by matters raised by Associate Professor Miniter at the conclave. That is, only at the conclave might Associate Professor Miniter properly explain the basis of his opinion. In essence, Mr Kelleher submits that there is a real danger in allowing such a report to be served in circumstances where, on his submission, there is a significant doubt as to its admissibility and a significant risk that it might in some way subvert the conclave.

25. One of the issues which might have given rise to concern is whether the implant would be available for examination by the defendants, if that has not already occurred. I understand from Mr Bartley that the solicitor for the plaintiff has the implant and will make it available to any of the parties who wish to examine it, no doubt with the usual precautions being adopted.

26. It is notable that Associate Professor Miniter did not examine the plaintiff and he has not yet examined the implant. Whether that makes his report inadmissible in due course is a matter for another day.

27. In my view, questions of admissibility should not determine the outcome of this application. Whilst Mr Kelleher raised in his submissions whether it would be appropriate for me to consider admissibility or even determine admissibility at this stage, there is no application before the Court and I would not hear such an application without proper notice to other parties. It is of course a matter for the first and second defendants whether they wish to bring such an application but that has not yet been done.

28. In the circumstances, I am not satisfied that the problems with the content of the report identified by Mr Kelleher provide a proper basis for not making the orders sought. I am not intending to make any comment on whether the report is admissible or whether there is merit in Mr Kelleher's submissions about the problems with the report.

29. The second basis for the objection is that the participation of Associate Professor Miniter at this late stage in the conclave has the potential to subvert the conclave process or place the other doctors at a disadvantage because perhaps only at the conclave will Associate Professor Miniter explain his reasoning process. Of course there is a premise to that proposition, being that Associate Professor Miniter has not explained his reasoning process and I have not made any ruling on that at this stage.

30. The difficulty with that second submission is that I must proceed on the basis that all the doctors who have thus far offered expert opinions have done so in circumstances in which they have been satisfied that they are fully appraised of all facts and circumstances of which they need to be aware for the purposes of offering their opinion. Of course it is always possible that Associate Professor Miniter might raise something new during the conclave which the other experts are required to consider but I would not adopt the position that experts of the calibre assisting the Court in this matter are likely to in some way be influenced by Associate Professor Miniter or form a different view based on what they might hear from Associate Professor Miniter. I would assume they are all experts who offered opinions in accordance with their duty to the Court and will continue to do so.

31. In the circumstances, particularly having regard to the fact that the plaintiff is no longer seeking to serve the earlier affidavit from Associate Professor Miniter and having regard to the content of the report, I am satisfied that leave should be granted to the plaintiff to serve the report and I extend the time for service of this report until 4.00pm today.

32. I have heard the parties on costs. Mr Bartley seeks an order for costs in his favour. Mr Kelleher opposes it. Mr Windsor is taking the view that as long as it does not affect his client, he does not have anything to say. This is an argument that often arises during the normal course of these proceedings. In my view, the appropriate order is that costs be costs in the cause.

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Decision last updated: 19 March 2020