Bailey & Ors v Glaxosmithkline (UK) Ltd

The court may declare material in an expert report inadmissible or irrelevant before trial where the litigation’s issues and preparation have been clearly defined. The exercise requires caution and is directed to excluding impermissible topics, not controlling an expert’s expression. An expert’s report must remain within the pleaded issues, the disclosure given and the expert’s proper field. It cannot introduce new factual allegations, comparisons, regulatory issues or legal conclusions that would expand the trial. Where such material would require fresh disclosure or alter the agreed scope of the proceedings, it may be redacted or excluded.

This was a further case management conference in group litigation concerning whether Seroxat was defective under the Consumer Protection Act 1987 because it allegedly caused worse discontinuation symptoms than other selective serotonin reuptake inhibitors, and whether it was marketed without appropriate warnings.

The claimants had been permitted to instruct replacement experts. The defendant objected to parts of Professor Healy’s report on grounds including irrelevance, unpleaded factual allegations, inaccessible source material and matters outside the expert’s remit. The central issues were whether the report should be redacted and whether further disclosure should be ordered.

1. Scope of the litigation. The proceedings were confined to the pleaded “worst in class” allegations concerning discontinuation symptoms and warnings, together with the existing issues and disclosure. Regulatory breaches, wider marketing questions, the outcome of foreign litigation and unrelated allegations about the defendant were outside that scope.
2. Power to control expert evidence. Although admissibility is ordinarily considered by the trial judge, the court may intervene at an interim stage where it is clear that material should not be included, particularly where its inclusion would enlarge the trial preparations or the trial itself. The court should approach the exercise cautiously. It should not generally interfere with how an expert expresses an opinion, but may declare particular passages or topics inadmissible or irrelevant.
3. Expert’s proper remit. Professor Healy could address evidence relevant to whether Seroxat caused greater discontinuation symptoms than other SSRIs. He could not introduce new comparisons requiring disclosure concerning other medicines, give evidence about matters outside his expertise, advance unpleaded allegations, or determine legal questions such as whether the statutory definition of “defective” was satisfied.
4. Application. The court ordered redaction of specified passages, including material concerning foreign proceedings, alleged lack of regulatory independence, collateral allegations about marketing and research, and matters not previously raised under the development risk defence. Professor Healy was invited to review other material concerning the wider effects of Seroxat, but no further disclosure would follow. No unless order was made.
5. The parties were directed to agree an order giving effect to the judgment.

The judgment records earlier case-management decisions in the same litigation at [2016] EWHC 178 (QB) and [2016] EWHC 1975 (QB). No appeal is stated.