Invoking the ‘state of the art defence’? Be prepared to back it up pre-trial


Author: Isabel Foley and Orla Clayton

Defendants to product liability claims seeking to rely on the ‘state of the art’ defence must be prepared to provide full particulars (or details) of the facts which they say support the defence prior to trial. The Court of Appeal made this clear in a recent decision arising from the DePuy hip implant litigation.

What is the ‘state of the art’ defence?

The ‘state of the art’ defence is one of the defences set out in the Product Liability Directive (Directive 85/37/EEC) and the Irish Liability for Defective Products Act 1991. The defence exempts a producer from liability where it can show that, in light of the state of scientific and technical knowledge at the time it put the product into circulation, it could not have discovered the particular defect.

Read the full briefing here.


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