Product Liability 2009 - Arnold & Porter LLP

Lovells LLP Germany
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
Where the damage was caused by the fault of the defendant and a
third party, the defendant and the third party are jointly and
severally liable, irrespective of their individual contribution to the
damage.
Under the PLA, every producer is liable for a defect in the product
irrespective of the actions of a third party. The producer is not liable,
however, “if it is probable that the defect which caused the damage
did not exist at the time when the product was put into circulation by
him or that this defect came into being afterwards” (Article 7 (a)
PLD). This is the case, for example, if a third person (or the claimant)
tampers with the product post-circulation. Moreover, the producer is
not liable “in the case of a manufacturer of a component, if he proves
that the defect is attributable to the design of the product in which the
component has been fitted or to the instructions given by the
manufacturer of the product” (Article 7 (f) PLD).
Where the defendant and the third party are jointly and severally
liable, the defendant may be able to seek recourse from the third
party. It is in this procedure that the court will apportion the
respective share of liability. The defendant can seek recourse
against the third party only in subsequent proceedings, and there are
time limits for such proceedings. However, the defendant can issue
a third party notice in the original proceedings in order to suspend
the limitation period.
3.6 Can defendants claim that the claimant’s actions caused
or contributed towards the damage?
The defendant can claim that the claimant’s actions caused or
contributed towards the damage. In the first case, the defendant
will in general not be liable; and in the second case, damage awards
will be reduced depending on the proportion of the claimant’s
contribution to the damage.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
The trial is by a judge or a chamber of judges.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
No, it is only for the judge to assess the evidence (see also questions
4.1 and 4.8).
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
Class actions, or similar forms of collective redress, are not available
for product liability claims in Germany. There are procedures to
ICLG TO: PRODUCT LIABILITY 2009
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consolidate multi-claimant proceedings in securities litigation, and the
government is considering whether similar mechanisms could and
should be introduced for other areas of law, including personal injury
litigation. Although the EU debate on collective redress has had some
impact on the legislative activities in Germany, the government has
not yet expressed a clear desire for reform in this area. What we have
been observing in multi-claimant litigation, however, is that judges
gradually develop their own mechanisms of case management to deal
with the increasing number of cases.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
Representative actions are not available in the area of product
liability.
4.5 How long does it normally take to get to trial?
There is no formal pre-trial stage in Germany. The period of time
between the filing of a claim and the first court hearing is usually
between two and six months. Although a case can be decided as
early as in the first hearing, the period of time between the first
hearing and a first instance judgment is generally between five
weeks and two years.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
There is no trial about preliminary issues of law or fact. That is, the
court cannot formally split a trial and decide on certain preliminary
issues with binding effect for subsequent proceedings. The only
practical exception to this rule is that a court can render a decision
on the merits, whilst reserving until later the assessment of damages
(quantum).
What a court can do, however, is to consider certain issues (of law
and fact) first and, if necessary, take evidence on those issues. For
example, in pharmaceutical cases, courts often limit the
proceedings to issues regarding causation. Therefore, if the
claimant cannot prove causation, the court will dismiss the case
without having to consider other relevant issues such as the
existence of a product defect.
4.7 What appeal options are available?
Appeal from the decisions of the court of first instance (Berufung)
may be taken as of right where the amount of complaint exceeds
€600. Otherwise, the party requires leave to appeal. The Federal
Supreme Court revises the decision of the court of appeal on
questions of law only (Revision) if either it or the court of appeal
allows revision.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
The court can, and must, appoint an expert where it lacks the
required technical or scientific knowledge itself. The courtappointed
expert will prepare a written report on the technical and
scientific issues as identified by the court and the parties.
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