FEDERAL COURT OF AUSTRALIA

Stanford v DePuy International Ltd (No 4) [2015] FCA 333

THE COURT ORDERS THAT:

1.    The applicants’ application to read the balance of paragraphs 90 to 93 of the third affidavit of Professor Graves is refused.

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

REASONS FOR RULINGS

1    The applicants apply to read the balance of paragraphs 90 to 93 of the third affidavit of Professor Graves, dated 5 February 2015, consequent upon the ruling I gave on 8 April 2015, Stanford v DePuy International Ltd (No 3) [2015] FCA 325, which centred on the non-disclosure provisions of s 124Y of the Health Insurance Act 1973 (Cth) (s 124Y). These reasons should be read with the reasons I then gave.

2    The immediate history of the matter is that objection was made to these paragraphs by the respondents, and those objections were notified on 17 February 2015. As I said in paragraph 4 of the reasons I gave on 8 April 2015, on 2 April 2015 I gave a preliminary indication that the underlying data referred to in paragraphs 90 to 93 should be provided. The matter was then the subject of argument on 7 April 2015 when the s 124Y point had emerged in the document indicating the supplementary oral evidence sought to be adduced from Professor Graves. I held that the section did not apply where the information did not identify, either expressly or by implication, a particular individual or individuals.

3    The issue that I identified on 8 April 2015 was that the underlying data, that is, the data underlying paragraphs 90 to 93, including the three figures or tables, had not been made available to the respondents.

4    Subsequent to the ruling on 8 April 2015, I granted leave to the applicants to serve a subpoena on the Australian Orthopaedic Association Limited (the AOA) and that was returnable at 10.15 am this morning. Certain documents were produced in answer to the subpoena and an affidavit sworn by Mr Adrian Cosenza, Chief Executive Officer of the AOA, explained what had been produced.

5    The cross-examination of Professor Graves, which was then partway through, having commenced on 8 April 2015, continued up to its conclusion. I then took an early luncheon adjournment so as to enable the parties to inspect the material that had been produced in answer to the subpoena.

6    The affidavit of Mr Cosenza made clear that, in answer to the subpoena, he had caused the AOA to produce three 7 page analyses of the DePuy ASR Resurfacing and BHR (Birmingham Hip Resurfacing) procedures at three hospitals where those procedures were undertaken, with the hospitals de-identified and links to the surgeons carrying out the procedures removed.

7    The key issue that paragraphs 90 to 93 address is one aspect of Professor Graves’ evidence as to the high revision rate of the ASR Resurfacing. In paragraphs 56 and 57 of Professor Graves’ second affidavit, dated 14 July 2014, he gives a number of reasons and items of evidence in support of the proposition that the high revision rate of the ASR Resurfacing was not related to any so-called “learning curve” and it was not the result of any surgeon-related issues. Five subparagraphs described as “evidence” were originally contained in the second affidavit and one of those subparagraphs was not read, and it is the ”evidence” in that subparagraph which is returned to in paragraphs 90 to 93 of the third affidavit, the subject of the present application.

8    Therefore, paragraphs 90 to 93 deal with one aspect of the proposition as to whether or not the high revision rate of the ASR Resurfacing was or was not related to any “learning curve”, and these paragraphs set out one of the reasons why Professor Graves considers that the high revision rate of the ASR Resurfacing was not related to any “learning curve”. He maintains the other reasons on the basis of what he refers to as the other evidence, and that part of the material is already in evidence. The other bases put by Professor Graves, as I have said, were in his second affidavit and to the extent that the respondents wished to cross-examine Professor Graves on that material, they have done so over the last two and a half days.

9    The key proposition underlying paragraphs 90 to 93, in my opinion, is the performance of a small number of surgeons and the number of those surgeons would appear to be, at most, five. Consistently with s 124Y, as I said in my reasons on 8 April 2015, the material identifying those individuals cannot be disclosed. However, it appears from at least parts of paragraphs 90 to 93 that Professor Graves, by virtue of his position as the Director of the Australian Orthopaedic Association National Joint Replacement Registry (the Registry), has had access to and used that material; and on the basis of his access to that material, he has expressed in those paragraphs his views as to the experience of the individual surgeons.

10    In my opinion, there is a fundamental unfairness, no doubt attributable to s 124Y, in a deponent, by virtue of his position as Director of the Registry, having access to, and the applicants seeking to deploy, data that by virtue of s 124Y is not available to the other parties to the proceedings.

11    I would also note that the material which has been produced on subpoena is not the underlying data which I referred to in my reasons of 8 April 2015, but, according to the affidavit of Mr Cosenza, is a re-analysis and is not by Professor Graves but by staff of the AOA of the underlying data which the Registry has, and this, in my view, does not by any means cure any unfairness and may, indeed, add to further difficulties in the respondents seeking to test the material in paragraphs 90 to 93, including the figures and tables.

12    In addition to those matters, senior counsel for the respondents submits that he is prejudiced by the late production of the three analyses or re-analyses, produced this morning in answer to the subpoena and, in my view, there is prima facie force in the contention that material of this complexity requires some analysis which is not available during a lunchtime adjournment.

13    The alternative would be to permit the conduct of the trial to be disrupted by requiring the respondents to pursue the questions that they would seek to pursue, and, thereafter, to require that Professor Graves be recalled in circumstances where otherwise his evidence, apart from his re-examination, would be concluded. I do not regard that as being conducive to the efficient and economical running of the trial.

14    For these reasons, I reject the applicants’ application to read the balance of paragraphs 90 to 93 of the third affidavit of Professor Graves.

Associate:

Dated:    10 April 2015