Product Liability 2009 - Arnold & Porter LLP

Russia
268
Orrick (CIS) LLC Russia
injury was caused by a force majeure circumstance or by the
consumer’s failure to comply with the rules for the use or storage of
the product.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
It is not obligatory to arrange for an expert examination to obtain
proof of causation. A claimant may describe the connection
between an injury and the specific product that caused it in the
claim. Naturally, however, an expert opinion will give additional
weight to a claim.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
The conception of “market-share liability” does not work in Russia.
Theoretically, the claimant has the right to file a claim to several
possible producers. However, it is most probable that a court would
dismiss such an action as the defendant is not specified.
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?
Under the Consumer Protection Law, failure to provide adequate
warning about certain characteristics of goods or services will
enable a consumer to claim compensation for injury or loss caused
by such characteristics. All relevant information regarding a
product should be provided to the consumer. In case of injury or
loss a consumer has the right to claim compensation from a seller,
manufacturer, or importer.
The principle of “learned intermediary” is not used in Russia.
3 Defences and Estoppel
3.1 What defences, if any, are available?
Article 1097 of the Civil Code provides a limitation period, which
is either the recommended lifetime or the shelf life of the product.
If these times are not established, then the limitation period is ten
years from the date of production of the product. It should be noted
that the ten-year term may be used when the manufacturer or the
seller is not required to specify the lifetime or shelf life of the
product. If such time is not indicated, and is required by law, the
consumer may make a claim for compensation for loss at any time.
Article 1083 of the Civil Code allows a court to reduce the amount
of an award of damages depending on the degree of contributory
negligence of the claimant, but the damages may not be reduced to
zero if the consumer has been killed or suffered injury or damage to
health by using the product in question. The same Article, however,
prevents an injured party from claiming compensation for an injury
incurred ‘by his own deliberate actions’.
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?
There is no state of the art/development risk defence in Russia. In
such a case a general rule applies: the claimant must prove that the
injury actually resulted from the product in question, regardless of
the state of scientific and/or technical knowledge at the time of
supply, and the defendant must prove that the injury was the result
of a breach of the manufacturer’s instructions, for example.
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,
marketing and supply of the product?
A manufacturer should ensure that its products comply with safety
requirements relating to the protection of consumer’s health and
property and the environment. However, if a claimant proves that
the product in question caused harm to him/her, and that he or she
followed the manufacturer’s instructions, the court may hold that
the manufacturer produced a defective product even though safety
requirements were complied with.
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
prevent this?
The claimant can only re-litigate issues of fault, defect or the
capability of a product in another action brought by that claimant.
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?
The defendant can file a recall action to a third party requesting
indemnification of losses in subsequent proceedings. According to
a general rule, such an action may be filed within three years.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Yes, the defendant may claim that the claimant contributed to the
damage, and may submit an expert opinion to the court as evidence
of this.
WWW.ICLG.CO.UK
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London