Product Liability 2009 - Arnold & Porter LLP

Italy
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however, courts tend to determine the preliminary issue at the end
of the case, along with the merits.
Some preliminary issues (such as lack of territorial venue or statute
of limitation) must be raised by the defendant in the statement of
defence, otherwise they cannot be raised at all. Others (such as lack
of jurisdiction or lack of locus standi) can be raised ex officio by the
court without input from the parties and at any stage of proceedings
(including the appeal stage).
4.7 What appeal options are available?
Any party to a claim has a right of appeal to the Court of Appeal
(second instance) and, on issues of law only, to the Supreme Court of
Cassation. Two other “exceptional” appeal options are available:
revocation; and third party opposition. No leave to appeal is required.
Appeal
The losing party to a partial or final judgment can challenge the
decision before the Court of Appeal, formed by a panel of three
judges. The appeal must be filed within thirty days from service of
the first instance judgment; failing service, the term to appeal is one
year from the date when the judgment is lodged with the court clerk.
No leave to appeal is required.
All claims raised in the first instance can be referred to the Court of
Appeal and any error the appellant asserts has been committed by
the first instance court can be ground for appeal. At the appeal
stage, no new objections and claims can be raised and the parties
may not produce new evidence. The appellate court issues a new
judgment, which replaces that of the first instance court.
Cassation
The second instance judgment can be challenged before the
Supreme Court of Cassation. The appeal must be filed within sixty
days from service of the judgment; failing service, the term to
appeal is one year from the date when the judgment is lodged. The
Supreme Court does not re-examine the merits, but only evaluates
whether legal principles and procedure have been complied with in
the previous instances. When the court ascertains errors, it sets
aside the judgment appealed from and remits the case for judgment
on the merits to a lower court, which must re-examine the facts in
the light of the legal principle fixed by the Supreme Court. In cases
where the judgment appealed from is set aside due to a violation or
incorrect application of rules of law and there is no need for reexamination
of the facts, the court itself issues a new judgment
based upon the correct principle of law.
Revocation and third party opposition
Revocation is a proceeding before the court that issued the
challenged judgment (e.g. in case of manifest mistake in the
evaluation of facts or documents, wilful misconduct of one of the
parties or of the judge during the proceedings, judgment issued on
the basis of false evidence). Third party opposition may be raised
by someone who was not a party to the original proceedings,
complaining that the judgment was rendered in his absence and that
this has infringed his rights, or has ruled thereon, or has created a
right inconsistent with his own rights.
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?
In the course of proceedings, the judge can appoint a CTU to assist
in activities that the judge cannot directly perform (see answer to
question 4.2). When the court appoints a CTU the parties can also
appoint their own experts who participate in the technical
investigations. In product liability claims a technical assessment of
the allegedly defective product is often needed and expert
investigations can be the core of the action.
In addition, before the commencement of a case, if there is an
urgent need to verify the state of a place or an object before they are
modified in a way that could hinder their use as evidence in
proceedings (e.g. the scene of an accident or an easily deteriorating
product), a party can request a pre-trial technical investigation.
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?
Fact witnesses
Italian civil law does not distinguish between pre-trial and trial as in
common law jurisdictions. A party wishing to depose a factual
witness in civil proceedings will file the relevant request in the
introductory brief or in the statement of defence and in the
subsequent briefs on evidence, listing the questions on the factual
circumstances of the case that they wish the judge to ask to the
witness. The counterpart has the right to list questions in order to
counter-depose the witness. The judge has the power to admit or
dismiss any such witnesses and to allow or strike off the suggested
questions. Witnesses must appear personally at a prescribed
hearing scheduled by the judge, who is the only person entitled to
ask questions. Depositions constitute full evidence.
Expert witnesses may not be deposed under Italian civil procedure
law. Evidence in the form of sworn affidavit is not admissible,
although experts may prepare reports in writing that parties are
entitled to file with the court as documentary evidence. In this
respect, the Parliament is discussing a reform of the Code of Civil
Procedure whereby the parties will be allowed to file written
witness depositions on questions previously submitted to and
approved by the Court (see section 8 below).
Court-appointed experts
See the answer to question 4.8. CTUs are assistants of the judge,
they are not witnesses, and their findings are not pieces of evidence.
Their report serves the purpose of clarifying technical or medical
aspects to the judge, who is not bound to follow any conclusions
reached by the expert on specific issues. CTUs are never deposed
as witnesses.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
In the Italian procedural system there are no disclosure obligations.
The basic principle is that the claimant must prove its claims by
submitting to the judge all relevant evidence it possesses. The same
applies to the defendant in proving statements made in its defence.
Normally the evidentiary phase of a trial is limited to such
document production and the hearing of witnesses (if any). If a
party fails to submit documentary evidence on its own behalf, it
suffers no adverse consequence in the proceedings save that its
claims may not be proved to the judge’s satisfaction.
The Italian Code of Civil Procedure provides that the judge may
order the inspection or disclosure of evidence in the possession of
another party or of a third party (“items”, like documents, are
usually produced in the trial by one of the parties as evidence of its
claim, rather than “inspected”). If the request originates from one
of the parties to the proceedings, this must specifically indicate the
particular document to be disclosed, and there cannot be a “fishing
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