Product Liability 2009 - Arnold & Porter LLP

Germany
160
Lovells LLP Germany
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Germany.
This year the German Federal High Court of Justice
[Bundesgerichtshof - BGH] published a widely expected judgment
on the question of whether manufacturers have to provide a free of
charge replacement in the event of safety risks arising from
products they have put on the market. The BGH pointed out that
Ina Brock
Lovells LLP
Karl-Scharnagl-Ring 5
80539 Munich
Germany
Tel: +49 89 290 120
Fax: +49 89 290 122 22
Email: ina.brock@lovells.com
URL: www.lovells.com
Ina Brock is in charge of Lovells’ Product Liability practice in
Germany.
“Said to be “one of the best product liability lawyers in the world””
(The International Who’s Who of Life Sciences Lawyers 2008) and
being “consistently cited as one of Germany’s top product liability
specialists, active in representing some of the world’s major
pharmaceutical and medical device players on EU aspects of bigticket
product liability cases.” (PLC Cross-border Handbook: Life
Sciences - The law and leading lawyers worldwide 2007/08), she
focuses on product liability, mass torts and pharmaceutical liability,
including international conflict of laws and cross-border forum issues.
Ina’s experience spans over 12 years. Since the beginning of her career
she has been advising and representing German and international
clients in connection with all types of product safety issues, pro-active
defence strategies, settlement negotiations, liability litigation, crisis
communication and insurance issues. Ina also has extensive
experience in co-ordinating multi-jurisdiction and multiparty product
liability litigation across Europe, Asia, Africa and the Middle East.
Ina is chair of the German Steering Committee of DRI Europe and a
member of the International Association of Defence Counsel
(“IADC”). She is also an author of numerous publications on
product liability law issues and assisted on the conduct of a major
study on the practical operation of product liability laws throughout
the EU and the feasibility of greater harmonisation of those laws in
the instruction of the European Commission.
there is no general obligation under German tort law to repair or
replace products because of safety risks. This means that, in many
cases, the manufacturer could comply with its obligation of hazard
prevention by issuing warnings, by requesting that the use of the
products be stopped, or by informing the competent authorities.
According to the Court, these principles apply in cases where users
can easily be identified and in cases where it can legitimately be
assumed that the warnings will be observed.
As to the general tendencies, over the last few years there has been
a significant increase in the number of product liability claims in
Germany. While this development affects nearly all industries, the
most noticeable increase in claims has been in the area of
pharmaceuticals. This trend has begun in the last few years and is
still ongoing. The reasons for the increasing number of claims
include an increased media interest, heightened consumer
awareness, easier access to information and a more active claimant
bar. Moreover, by European standards, obtaining funding for
claimants to pursue product liability claims is relatively easy in
Germany. In addition to the availability of legal aid, legal cost
insurance is widespread and alternative methods of funding are
developing. The recent changes in the law permitting the use of
conditional fee arrangements as well as contingency fees may
contribute to a further increase in claims.
Dr. Sebastian Lach
Lovells LLP
Karl-Scharnagl-Ring 5
80539 Munich
Germany
Tel: +49 89 290 120
Fax: +49 89 290 122 22
Email: sebastian.lach@lovells.com
URL: www.lovells.com
Dr. Sebastian Lach joined Lovells in 2005 and is a senior associate
in the firm’s Munich office. He is a member of Lovells’ Dispute
Resolution practice group. Sebastian advises and represents
German and international pharmaceutical, medical devices and food
manufacturers as to regulatory issues and issues of product liability.
Sebastian Lach has special expertise in the defence, coordination
and implementation of international mass product liability cases.
He further specialises in advising with regard to the implementation
of European legal requirements for pharmaceutical, medical devices,
chemicals and food manufacturers.
With over three and a half thousand people operating from 27 offices in Europe, Asia, the Middle East and the USA,
Lovells is one of a small number of truly international law firms.
Lovells has an outstanding product liability practice covering all aspects of product liability including risk prevention
and management, compliance with product safety regulations, product recalls and personal injury claims, with
particular emphasis on multi-party and cross-border litigation. The practice operates in all key jurisdictions with over
90 highly experienced practitioners globally.
Our lawyers have been closely involved in many of the major product liability issues over the last decade, having advised
on a wide range of products including pharmaceuticals, food and drink, motor vehicles, tobacco, mobile phones,
aircraft, trains, vaccines, cosmetics, blood products, medical devices and asbestos.
Lovells’ product liability lawyers are supported by dedicated Science and Project Management Units.
To find out how Lovells can help you around the world, please contact:
John Meltzer, Head of Lovells International Product Liability Practice:
Tel: +44 20 7296 2276 or john.meltzer@lovells.com
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