Product Liability 2009 - Arnold & Porter LLP

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II. Contractual and tort liability
According to Luxembourg case law, if several producers are liable
for the same damage, they will be declared jointly and severally
liable towards the victim (responsabilité in solidum).
There is no “market-share liability” in Luxembourg.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
As previously mentioned (see the answer to question 1.1), a duty of
information lies with the manufacturer or the seller of a product.
The manufacturer or the seller must generally provide consumers
with relevant information on the product, on the means of use and
on the dangers involved (obligation d’information et de conseil).
A specific duty of information lies with the manufacturer or seller
of medical products, who must provide information on such
products to users and doctors, in particular as to the possible
harmful side effects. Otherwise they may be held liable (both
contractually and in tort) to the extent the breach of the information
duty is directly linked to a damage suffered by the victim.
There is no principle of “learned intermediary” in Luxembourg.
3 Defences and Estoppel
3.1 What defences, if any, are available?
The liability of the producer is not reduced where the damage is
caused both by a defect in the product and by the fault of a third
party.
(c) The liability of the producer vis-à-vis the victim under the
Defective Products Act cannot be contractually limited or excluded.
II. Contractual and tort liability
(a) Where a fault must be proved by the victim (in both contractual
and tort liability), the manufacturer or the seller may avoid or limit
his liability if he proves a case of absolute necessity (état de
nécessité) or a fault of the injured person.
Where a presumption of liability exists (i.e. article 1384, first indent
of the LCC), the manufacturer or the seller may avoid his liability
if he proves (i) a case of unforeseeable circumstances (force
majeure), (ii) a fault of the victim or (iii) a fault of a third party,
provided that this fault presents the characters of force majeure (i.e.
is unforeseeable, unavoidable and beyond his control).
(b) In principle, Luxembourg law recognises the possibility for
parties to contractually exclude or limit their liability for breach of
contract or negligence. However, liability for death, personal
injury, gross negligence or fraud cannot be excluded or limited by
way of contract.
3.2 Is there a state of the art/development risk defence? Is
there a defence if the fault/defect in the product was not
discoverable given the state of scientific and technical
knowledge at the time of supply? If there is such a
defence, is it for the claimant to prove that the fault/defect
was discoverable or is it for the manufacturer to prove that
it was not?
The Defective Products Act has not implemented into Luxembourg
law the provision of the EU Directive on defective products
whereby the producer cannot be held liable if he proves that the
state of scientific and technical knowledge at the time when he put
the product into circulation was not such as to enable the existence
of the defect to be discovered. Hence, the Defective Products Act
does not consider development risk as a means of defence for the
producer.
There are no Luxembourg case law precedents on this specific
issue.
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I. Legislation on defective products
(a) Pursuant to article 4 of the Defective Products Act, the producer
shall not be liable if he proves:
3.3 Is it a defence for the manufacturer to show that he
complied with regulatory and/or statutory requirements
relating to the development, manufacture, licensing,
(i) that he did not put the product into circulation;
marketing and supply of the product?
(ii) that, having regard to the circumstances, it is probable that
the defect which caused the damage did not exist at the time The producer shall not be held liable under the Defective Products
when the product was put into circulation or that this defect Act, in contract or in tort, if he proves that the defect is due to
came into being afterwards;
compliance of the product with mandatory regulations issued by
(iii) that the product was neither manufactured for sale nor for
any other form of distribution for economic purposes, nor
public authorities.
manufactured or distributed in the scope of the producers’
business;
(iv) that the defect is due to compliance of the product with
mandatory regulations issued by the public authorities; or
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
(v) in the case of a manufacturer of a component, that the defect
is attributable to the design of the product in which the
prevent this?
component has been fitted or to the instructions given by the
manufacturer of the product.
Pursuant to article 1351 of the LCC, the authority of res judicata (la
chose jugée) does not allow a challenge to what was definitely
(b) According to article 5 of the Defective Products Act, the liability judged between the same parties. Consequently, the same parties
of the producer can be reduced if the damage is caused jointly by a cannot initiate new legal proceedings based on the same grounds
defect in the product and by the fault of the victim or any person for and the same subject matter.
whom the victim is responsible.
However, it is possible for another victim to sue the same producer
ICLG TO: PRODUCT LIABILITY 2009
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