Product Liability 2009 - Arnold & Porter LLP

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hearings. In the first hearing (audiencia previa) the court will
decide upon any procedural issues that may impede the
continuation of the proceedings or determine their ending. These
issues are, among others, lack of capacity or representation, absence
of joinder, res iudicata, litispendens, or inadequate procedure.
Issues of fact cannot be decided in the preliminary stages.
4.7 What appeal options are available?
The main appeal options foreseen under Spanish law are:
(a) Ordinary appeal: This appeal is filed against the final
decisions and judgments rendered by the First Instance
Courts (recurso de apelación). The appeal is decided by the
Court of Appeal who can review the facts as well as the
application of the law.
(b) Extraordinary appeals: These appeals are filed against the
judgments issued by the Court of Appeal and it is decided by
the Spanish Supreme Court. In order to file a cassation
appeal (recurso de casación) the case must meet one of the
following requirements: (i) affect the protection of
fundamental rights; (ii) the amount involved exceed 150,000
Euros; or (iii) cassational interest of the decision of the Court
of Appeals. In order to file an procedural infringement
appeal (recurso extraordinario por infracción procesal) the
case must meet one of the following requirements: (i)
infringe laws regarding jurisdiction and competence; (ii)
infringe law regarding the ruling; (iii) infringe laws
regarding the equitable treatment of the parties; or (iv)
infringement of fundamental rights recognised in Article 24
of the Spanish Constitution.
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?
Parties are entitled to file expert witness reports together with their
claim or answer to the claim. Parties can also ask the court to
appoint an expert witness.
There are no restrictions on the nature or extent of the expert
evidence.
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?
In civil proceedings there is generally no pre-trial deposition. It will
only be possible to practice evidence prior to the commencement of
proceedings in exceptional circumstances: when the claimant
foresees and proves that due to the nature of the evidence it might
turn impossible to practice it at a later moment. The claimant may
also seek measures to secure evidence. Provided these exceptional
circumstances are met, factual or expert witnesses may be required
to present themselves for pre-trial deposition.
Expert reports are filed together with the parties’ pleadings. The
reports requested by the parties must be filed in any event prior to
the preliminary hearing (audiencia previa), and the claimant is
entitled to request an extension of his expert report if the report filed
by the defendant raises issues not dealt with in the claimant’s
expert’s report.
ICLG TO: PRODUCT LIABILITY 2009
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4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
There are no proceedings for discovery or disclosure of documents
under Spanish civil procedure. Indeed, as a general principle, the
parties freely decide what factual evidence they want to file in
support of their claims. However, Article 328 of the Spanish Code
of Civil Procedure allows a party to request from the other parties
the disclosure of a document that the party does not have. The
documents to be disclosed must be correct and precisely identified.
In specific circumstances and at the discretion of the judge, a third
party can be requested to file or disclose a specific document which
is in its possession if the court considers it is essential for the case.
Before proceedings are commenced, a party may also request from
a judge to seek elements of proof on which the solution of the
dispute may depend (e.g., request the defendant to disclose a
document that is in his possession; request the defendant to disclose
his insurance contract; in collective actions, take the necessary
measures to identify the affected consumers when they are easily
determinable).
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
Arbitration is an available alternative method of dispute resolution.
Parties may choose to resort to arbitration either in their initial
contracts (in an arbitration clause) or after a dispute has arisen.
Arbitration clauses between suppliers and consumers will only be
valid if they refer the dispute to the consumer arbitration system.
Within the consumer arbitration proceedings, the parties will be
first encouraged to settle the dispute through mediation.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Yes there are time limits, which vary depending on the action to be
brought.
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?
Time limits are set out by law and are compulsory for the judge, as
the latter has no discretionary power to alter or ignore them.
Under the strict product liability regime, the producer may be
found liable for ten years after the product was put on the market,
provided that no judicial claim has been initiated previously
(Article 144 of the Consumer’s Act). Within such a period of time,
the victim’s claim must be filed no later than three years after it
suffered the harm provided that the person responsible for the
damage is known (Article 143 of the Consumer’s Act). If the
plaintiff is a supplier who has not manufactured the product but is
sued by the injured party, he may bring an action against the
manufacturer under the same rules applicable to the injured party,
no later than one year after he paid the indemnity to the injured
party (Article 143 of the Consumer’s Act). After ten years from the
date on which the product was put on the market, a claim can still
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