Case against Roche firm can go ahead

Court Decision as reported in The Irish Times, 2nd June 2008

 


Judge Hardiman Mr Justice Adrian Hardiman: "each and every one of these people will benefit from a resolution of the suspicions which they clearly hold"

Grant -v- Roche Products.

SUPREME COURT

Judgment delivered on May 7th 2008 by Mr Justice Hardiman, the Chief Justice, Mr Justice Murray and Mr Justice Geoghegan concurring.

JUDGMENT

This was an application from the defendants in the case, a number of Roche pharmaceutical companies, to stay proceedings taken by Liam Grant, who was suing the companies for the wrongful death of his son, Liam jnr. The companies claimed the proceedings were an abuse of process, and sought to have them stopped in the High Court, where they failed.

They appealed to the Supreme Court, where Mr Justice Hardiman upheld the decision of the High Court and ruled the proceedings could go ahead.

BACKGROUND

The case arose from what the court described as tragic circumstances. The plaintiff, Liam Grant, and his late wife had four children, including a son, Liam jnr.

He was a 20-year-old second year student of engineering in UCD and "a pleasant, outgoing, relaxed and genial person who was happy in his life and his studies". There was no family or personal history of depression.

He did, however, suffer from acne, and he attended his GP, who referred him to a consultant dermatologist, Gillian Murphy, who prescribed the acne drug Roaccutane, manufactured by Roche, to be taken for four months. Only consultant dermatologists could prescribe the drug.

In the first month Liam Grant jnr became depressed and withdrawn, and on June 15th 1997, in the final week of the course, he took his own life.

His GP was very surprised at this and expressed concerns to his father about the reported side-effects of Roaccutane, which included depression.

Mr Grant claims that depression, suicidal ideation and suicide itself are recognised side-effects of the drug, and that it is a defective product.

He sued the Roche companies, the Irish Medicines Board and the consultant dermatologist on his own behalf and the estate of Liam Grant jnr for "damages for mental distress, loss, damage and expense suffered by the plaintiffs and statutory dependants by reason of the negligence, breach of duty and breach of statutory duty of the defendants".

After examining some of the voluminous literature assembled by Mr Grant, Mr Justice Hardiman commented: "It seems clear. . . there has been for a considerable time a volume of discussion in scientific and regulatory circles on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well as alleged birth defects associated with its use by pregnant women".

The Roche defendants denied liability and all the plaintiff's allegations.

On February 18th their solicitors issued a notice of motion seeking to restrain the proceedings, and stating that, in the light of the likely protracted and expensive nature of the proceedings, they had made an open offer to the plaintiff on October 13th, in which they agreed to pay the plaintiff all the damages to which he would be entitled under section 49 of the Civil Liability Act 1961 (as amended), the special damages claimed in the proceedings, and his costs.

The sum was the €25,394.76 recoverable under the Act, and a further €5,594.46 in funeral expenses, also covered by the Act.

This offer was being made in full and final settlement of all claims and strictly without any admission of liability. The Roche defendants would also pay the costs of the other defendants (the Irish Medicines Board and the dermatologist).

The plaintiff rejected the offer as "a cynical attempt to avoid a public trial".

His solicitors also pointed out that he had spent the past seven years investigating the drug in question, and had to incur considerable expenditure as a result.

He also said that the letter did not constitute either a lodgement or a tender within the context of the proceedings.

Maurice Collins SC, for the Roche defendants, told the court that the case was "quantifiable to a unique degree" because of the statutory provision for damages.

He said that this must imply that the plaintiff's right to litigate was qualified, he only had the right to litigate to recover the sums recoverable under the Act. Therefore to insist on litigating when there was an offer to pay the full amount of the damages payable was an abuse of process, as they could "obtain no benefit" from continuing the proceedings.

He said that the plaintiff obviously was seeking a determination of liability apart from any question of damages, that is, a finding that the death of Liam Grant jnr had been caused by the wrongful act of the defendants.

He said that the reference in the statute to death caused by a wrongful act was merely a statutory precondition to obtaining an award of damages, and could not be litigated as an end in itself.

The pursuit of damages was the only legitimate end of such proceedings. Insofar as the law might be conceived as having a social role, this was wholly a matter for "criminal or regulatory law".

Paul Burns SC, for the plaintiff, argued that Mr Grant was seeking to vindicate his personal rights under the Constitution, and one of the ways in which this could be done was through civil action.

He said there was no authority for the proposition that this was limited to criminal law.

"The role of a civil action is more than the allocation of damages; it is one of the ways in which rights are vindicated," he said.

He referred to the right to life of all citizens, and asked how this was to be vindicated if there was no mechanism for enquiring into liability except as a precondition to an award of damages.

If such a procedure could be bought off by simply paying the very restricted amount of damages permitted, it would amount to a "rich man's charter" to subvert the right to life.

Mr Burns cited English and Strasbourg jurisprudence stating that there must be a system for investigating liability where a person dies as a result of what is arguably medical negligence.

When the case was argued in the High Court the then President of the court, Mr Justice Finnegan, stated, among other findings, that a finding of liability was one of the objects of the proceedings, and that the constitutional rights of the plaintiff took precedence over the consequences of the action in terms of costs for the defendants.

DECISION

After reviewing case law on the courts' entitlement to strike out or restrict a claim, Mr Justice Hardiman said that in doing so they should confine themselves to considering whether the issues raised were "frivolous or obviously unsustainable".

"On the basis of the information before the court, I do not consider that the plaintiff's claim is clearly unsustainable or that it is bound to fail," he said.

He added: "I am compelled to add. . . that this state of mind is as far as can be from a belief that the plaintiff is bound to, or likely to, succeed.

" It is simply not possible to come to this conclusion. If the plaintiff's action is permitted to proceed he will be taking on difficult proofs against a well resourced and determined group of defendants in the Roche companies who have every reason to resist his claim."

Referring to the question as to whether the action was an abuse of process, he said he could not hold that a determination that the death was caused by the wrongful act of the defendants would not confer a tangible benefit on the plaintiff, his father.

"It is quite contrary to any holistic view of human nature to fail to acknowledge that each and every one of these people will benefit from a resolution of the suspicions which they clearly hold, that the deceased was led to take his own life by the ingestion of a prescription drug known or believed to be associated with grave adverse psychiatric consequences."

He rejected the argument that the vindication of personal rights was a matter only for the "criminal or regulatory law", as having no basis in the Constitution or the law.

He also found that the plaintiff was entitled to seek to recover the expenses relating to his research on the drug.

He dismissed the appeal and upheld the order of the High Court, allowing the case to go ahead.

The full text of this judgment is available on www.courts.ie

Michael Collins SC, David Barniville SC and Viv Lavan BL, instructed by McCann Fitzgerald, (for the appellant), Paul Burns SC, John Rogers SC and Eileen Barrington BL, instructed by Ivor Fitzpatrick solrs, St Stephen's Green, (for the defendant)