Product Liability 2009 - Arnold & Porter LLP

Germany
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Lovells LLP Germany
However, the court can dismiss a case without appointing an expert,
even in pharmaceutical cases, if it finds that the claimant’s
submissions are unsubstantiated (e.g. because of a failure to make
precise statements on the medical history) or do otherwise not allow
a finding of causation or a product defect and/or fault (e.g. because
the scientific studies presented are evidently not supportive of the
claimant’s case).
The parties can also obtain their own private expert opinions,
although such an opinion will have minor probative value unless the
parties agree that it will be treated as a formal expert opinion. The
main purpose of private expert opinions is to educate the courtappointed
expert and the court on certain scientific and medical
issues and/or challenge the findings of a court-appointed expert.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
There is no formal pre-trial deposition in Germany. The parties are
free to exchange private expert opinions and similar documents
before the trial, if they wish.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
There is no general pre-trial discovery procedure and no general
claim for disclosure that would help the claimant establish liability.
However, recent reforms of the CCP and the Drug Act have
introduced new rules for the disclosure of documents.
Under section 84a of the Drug Act, the injured person may now
request that a pharmaceutical company (and/or the relevant
regulatory authority) provide information on the known effects,
side effects and interactions of a drug. This claim is usually brought
prior to the damage action.
Procedural law also grants the court the power to order the
disclosure of specified documents in the possession of a party, or a
third person, if a party refers to those documents. Although this
provision is increasingly being used in litigation, it does not allow
for extensive document disclosure procedures.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
Alternative methods of dispute resolution, e.g. mediation and
arbitration, are available in Germany, although these methods are
hardly ever used to resolve product liability cases.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Yes, time limits do exist.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
The time limit for bringing compensation claims under tort law and
under the strict liability regimes is generally three years. Recent
law reforms have introduced a ‘year-end-limitation’. That is, the
three-year limitation period now begins at the end of the year in
which the claimant became, or ought to have become, aware of the
facts on which his claim is based. For example, if the claimant
knew, or ought to have known, of the relevant facts giving rise to
his claim on 1 August 2008, the limitation period will start on 31
December 2008 (24:00 h).
Time limits expire regardless of this knowledge 30 years after the
incident in question occurred; claims for property damage,
however, will be limited to only ten years from the time when the
damage manifests itself (subject to the 30-year limitation from the
harmful event). Rights under the PLA will be extinguished after ten
years from the day on which the producer put the product into
circulation, unless the claimant has in the meantime instituted
proceedings.
The court does not have discretion to disapply time limits.
However, the defendant has to invoke the statute of limitations
defence.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
As the time limit begins at the end of the year in which the claimant
became aware of the facts giving rise to a claim, concealment of
these facts, or fraud, would delay the start of the time limit.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
Claimants can file a claim for compensation and/or declaratory
judgment on the question of liability.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
As of 1 August 2002, all product liability regimes cover, in
principle, both pecuniary and non-pecuniary loss.
Pecuniary loss resulting from personal injury includes, for example,
the costs of medical treatment and, usually in the form of an
annuity, any loss of profit, income or maintenance.
Non-pecuniary loss includes pain and suffering as well as loss of
amenity. The highest amount so far awarded by a German court for
pain, suffering and loss of amenity added up to the equivalent of
€600,000. Mental damage in the form of a recognised
psychological disorder must be compensated, whether it manifests
itself as pecuniary or non-pecuniary loss.
Damage to property is recoverable under all regimes, except for the
Drug Act and the Genetic Engineering Act, but is subject to a
number of restrictions. The PLA limits property damage to
products other than the defective product. It further excludes
damage to items that are usually, or that were largely, used for
business purposes. Finally, €500 will be deducted from the damage.
Damage to the product itself is covered by the law of contract. Tort
law allows the recovery of damage to the product itself only in
exceptional circumstances, for example, where a separable part of
the product causes damage to the rest of the product.
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ICLG TO: PRODUCT LIABILITY 2009
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