Stanford v DePuy International Ltd (No 5)

[2015] FCA 340

FEDERAL COURT OF AUSTRALIA

Stanford v DePuy International Ltd (No 5) [2015] FCA 340

Citation:	Stanford v DePuy International Ltd (No 5) [2015] FCA 340
Parties:	TAMMY MAREE STANFORD and JAMIE DUNSMORE v DEPUY INTERNATIONAL LTD and JOHNSON & JOHNSON MEDICAL PTY LIMITED
File number:	NSD 213 of 2011
Judge:	ROBERTSON J
Date of judgment:	13 April 2015
Legislation:	Evidence Act 1995 (Cth) s 135
Dates of hearing:	10 and 13 April 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Applicants:	Mr J Sheahan QC with Mr D Graham SC and Mr NM Bender
Solicitor for the First Applicant:	Maurice Blackburn Lawyers
Solicitor for the Second Applicant:	Shine Lawyers
Counsel for the Respondents:	Mr R Dick SC with Mr DJ Barnett
Solicitor for the First Respondent:	Herbert Smith Freehills
Solicitor for the Second Respondent:	Norton Rose Fulbright

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 213 of 2011

BETWEEN:

TAMMY MAREE STANFORD
First Applicant

JAMIE DUNSMORE
Second Applicant

AND:

DEPUY INTERNATIONAL LTD
First Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	13 APRIL 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The introductory two lines, the subheading “Outline of presentation” and the numbered paragraphs after that subheading of the Outline of proposed oral evidence of Professor Athanasou (the Outline) be rejected.

2.The final sentence of the Outline be rejected.

3.The balance of the Outline be admitted.

4.The following slides in the PowerPoint that accompanies the Outline be rejected: 3, 4 as to the diagram and text referable to edge loading, 5, 6, 10, 11, 13, 15, 20, 24, 26-28 32 and 33.

5.The following slides in the PowerPoint that accompanies the Outline be admitted: 1, 2, 4 apart from the diagram and text referable to edge loading, 7-9, 12, 14, 16-19, 21-23, 25, 29-31, 34-58.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 213 of 2011

BETWEEN:

TAMMY MAREE STANFORD
First Applicant

JAMIE DUNSMORE
Second Applicant

AND:

DEPUY INTERNATIONAL LTD
First Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent

JUDGE:	ROBERTSON J
DATE:	13 APRIL 2015
PLACE:	SYDNEY

REASONS FOR RULINGS

1. The applicants seek to tender an “Outline of proposed oral evidence of Nick Athanasou” (the Outline), and (now) 58 PowerPoint slides he has prepared. Originally the proposed oral presentation material was 122 slides.

2. As first proposed, the material was given to the respondents on Tuesday 7 April 2015. The shortened version of 58 slides was provided to the respondents on Thursday 9 April 2015. Professor Athanasou is scheduled to give his evidence today, and only today, 13 April 2015.

3. Professor Athanasou is a Professor of Musculoskeletal Pathology, University of Oxford, and has made three reports in the proceedings, dated 31 January 2014, 27 March 2014 and 26 June 2014, to which there is no objection on the part of the respondents.

4. I should note that Professor Athanasou’s evidence is highly technical and concerns histopathology, which refers to the study of morphological and other changes in diseased tissues.

5. The general nature of this material is apparent from an early paragraph in Professor Athanasou’s first report as follows (paragraph 1.4.):

   Both my research into the pathobiology of implant loosening, in particular the tissue reaction to implants, as well as my regular diagnostic reporting of a wide range of osteoarticular conditions, including those associated with failed arthroplasties, provides me with the expertise and experience required to provide an opinion on both the general and specific histopathological findings of the cases in these proceedings.

6. Speaking generally, I do not accept the applicants’ application insofar as it involves additional substantive oral evidence. However, insofar as the slides are merely illustrative of propositions in Professor Athanasou’s reports then I would admit them into evidence. I will rule on any specific questions that may arise, for example in the form of a question to Professor Athanasou as to whether slide “X” illustrates what is in paragraph “Y” of one of his written reports.

7. Having studied the 58 slides with the assistance of the schedule handed up by the applicants and the respondents’ written objections, both documents dated last Friday, 10 April 2015, I would admit into evidence the following slides on the basis that they are either mere identification or merely illustrative:

   1, 2, 4 apart from the diagram and text referable to edge loading, 7-9, 12, 14, 16-19, 21-23, 25, 29-31, 34-58. The numbering follows the sequence in the electronic court book, MIS.APP.082.0001. As to slides 42-51 in relation to Mr Dunsmore, they seem to be in substance a combination of page LIA.APP.100.0096 and, respectively, the slides at pages LIA.APP.100.0097-LIA.APP.100.0106. In each case those pages are from Professor Athanasou’s first report, the text of what the slides show being superimposed on each slide. Similarly, slides 53-58 in relation to Ms Stanford seem to be in substance a combination of page LIA.APP.100.0108 and, respectively, slides LIA.APP.100.0109-LIA.APP.100.0114. Again, in each case those pages are from Professor Athanasou’s first report, the text of what the slides show being superimposed on each slide.

8. I would reject the following slides: if they seek to do no more than reproduce parts of Professor Athanasou’s three reports then they operate as a distraction and I would exclude them under s 135 of the Evidence Act 1995 (Cth); to the extent that they depart from the content of Professor Athanasou’s three reports, in my opinion, the respondents should not have to deal with them at this late stage. I say this given the complexity of the subject matter and noting that, as I was told, the respondents have not or have no longer retained a corresponding expert, such as an histopathologist, in light of the terms of Professor Athanasou’s written reports:

   3, 4 as to the diagram and text referable to edge loading, 5, 6, 10, 11, 13, 15, 20, 24, 26-28, 32 and 33.

9. As to the Outline, I would reject the introductory two lines, the subheading “Outline of presentation” and the numbered paragraphs after that subheading. I would reject the final sentence of the Outline, which seems to me to be new. I would admit the balance of the Outline as constituting no more than a summary in less technical language and in a useful form of material in Professor Athanasou’s three reports.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice Robertson.

Associate:

Dated:        13 April 2015