Product Liability 2009 - Arnold & Porter LLP

Sweden
300
Roschier, Attorneys Ltd. Sweden
theoretically be applicable. Also, for some specific products, e.g.
medical technical products, there are criminal sanctions for
supplying defective products.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
A person claiming compensation according to the PLA has the
burden of proving (i) that he has incurred injury or property
damage, (ii) the existence of a defect in a product, and (iii) that the
injury or property damage was caused by that defect.
A person claiming compensation according to the TLA must prove
(i)-(iii) above and also (iv) that the defect was caused by the
defendant’s negligence.
A product is considered defective when it is less safe than a person
is entitled to expect. So-called systemic defects, i.e. the known and
accepted risks or effects of certain products, e.g. known side effects
of pharmaceutical products or the effects of alcohol or tobacco, do
not fall within the scope of the PLA.
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?
There is no established standard of proof of causation for product
liability. It would however not be enough to show an increased risk
of injury. Rather, the claimant must prove that the injury was
caused by the defect in the product. In cases where causality can be
unclear or complex, e.g. environmental or medical injuries, the
courts have been known to apply somewhat lower standards of
proof for causation.
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?
There is no market-share liability. However, any producer that
cannot show that he was not responsible for putting the defective
product into circulation is liable. If more than one producer is thus
considered responsible, they are jointly and severally liable.
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?
The Product Safety Act stipulates that a producer that has put a
dangerous product into circulation must warn of the risks for
damage and injury and inform consumers of how it can be avoided.
While failure to warn does not directly give rise to liability,
insufficient information and documentation about a product may be
considered a defect in the product according to the PLA and may
therefore, provided that it can be established that this defect caused
a damage or injury, be grounds for a claim under the PLA.
There is no principle of learned intermediary in Swedish law.
3 Defences and Estoppel
3.1 What defences, if any, are available?
A number of defences can be made against a claim under the PLA. If
the defendant proves (i) that he did not put the product into
circulation, (ii) that it is probable that the defect did not exist at the
time he put the product into circulation, (iii) that the defect was
caused by compliance with mandatory regulations by a public
authority, (iv) that the product was not produced by him for sale or
for any form of distribution for economic purpose nor produced by
him in the course of his business, or (v) that the defect, given the
scientific and technical knowledge at the time the product was put
into circulation, was not discoverable, he is not liable under the PLA.
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?
Yes, see question 3.1 above. The producer has the burden of proof
regarding discoverability. There is unfortunately no Swedish case
law regarding the standard of proof for such a defence.
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?
Yes, but only if the defect causing damage was due to such
compliance and only if the requirements were mandatory.
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?
There is no issue estoppel preventing different claimants from
litigating the same issues of fault, defect or damage in separate
trials. Between two parties, the same issues may not be re-litigated
if already tried in earlier proceedings.
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?
Defendants can seek contribution from a third party, however only
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