A High Court judge has refused to allow a US laboratory introduce certain microscopic evidence in a case by a woman suing over alleged misreading of her CervicalCheck smear slides.
Mr Justice Kevin Cross made the ruling after lawyers for Ruth Morrissey claimed they had been “ambushed” by the attempt by Quest Diagnostics Ireland Ltd to introduce the microscopic evidence.
Michael Cush SC, for Quest, said the substance of the microscopic evidence had been put to an expert witness for Ms Morrissey in cross examination and the expert witness on the Morrissey side had chosen “not to bring his microscope” to court.
He was responding to complaints by Patrick Treacy SC, for Ms Morrissey, who has terminal cervical cancer and less than two years to live, that the Morrissey side were only told at the end of last week an expert witness on behalf of Quest Diagnostics was to make use of a laboratory microscope set up in the court for the hearing.
Mr Treacy said it was “grossly unfair” and the Morrissey legal team felt “ambushed” as such microscopic evidence, he said was not put to their expert witness, consultant cytopathologist Dr Michael McKenna when he took the witness stand in recent weeks.
The reading of Ms Morrissey’s smear slides was the cornerstone issue in the case, his side’s expert was not in court yesterday and they felt “completely ambushed.”
In refusing to allow the microscopic evidence, Mr Justice Cross said he did not think it would be fair to bring it in at this stage.
He said Quest’s expert witness, Dr Robert Marshall Austin, medical director of Cytopathology at Magee Women’s Hospital in Pittsburgh, Pennsylvania, could give evidence as per his reports in the case.
After Dr Austin began his evidence, the case was adjourned on the application and Dr Austin will resume his evidence on Friday.
During the hearing on Tuesday, Mr Justice Cross said he had been told the case would take until the end of March and he had hoped to give his judgment before Easter but that was not now looking likely.
Ms Morrissey and her husband Paul Morrissey, of Kylemore, Schoolhouse Road, Monaleen, Co Limerick have sued the HSE and Quest Diagnostics Ireland Ltd, with offices at Sir John Rogerson’s Quay, Dublin, along with Medlab Pathology Ltd, with offices at Sandyford Business Park, Dublin 18.
It is claimed there was failure to correctly report and diagnose and alleged misinterpretation of Ms Morrissey’s smear samples taken in 2009 and 2012 and a situation allegedly developed where her cancer spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer in June 2014.
It is further claimed a review of the 2009 and 2012 smears took place in 2014 and 2015 with the results sent to Ms Morrissey’s treating gynaecologist in 2016.
It is claimed Ms Morrissey was not told until May 2018 of those review results which showed her smears were reported incorrectly.
The HSE has admitted it owed a duty of care to Ms Morrissey but not her husband. The laboratories deny all claims.