Product Liability 2009 - Arnold & Porter LLP

Barretto Ferreira, Kujawski, Brancher e Gonçalves (BKBG) Brazil
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
The Brazilian Consumer Protection Code, Law No. 8078/90,
provides for the possibility of shifting the burden of proof to benefit
the consumer when, at the discretion of the court, the consumer’s
claim is reasonable or when he is disadvantaged.
A reasonable claim is one likely to be true, whether or not supported
by evidence. In addition, it is possible to shift the burden of proof
if the consumer is disadvantaged, which happens in case of both
economic and technical disparity between the litigants, which
makes the consumer vulnerable.
The causes for exemption from civil liability are expressly and
categorically provided by the Brazilian Consumer Protection Code.
See question 3.1.
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?
The consumer protection system in Brazil provides for the concept
of product and service liability. The quality of products and
services is insufficient when fitness defects and safety defects arise.
In the case of safety defects in the product or service, there is a
distinction between inherent danger and acquired danger. Inherent
danger is latent, normal, and foreseeable in the product, while
acquired danger is the result of an unexpected defect in the product.
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?
All economic agents involved in the production and sales of a
certain product are responsible for ensuring its safety and quality.
All of them are, therefore, jointly and severally liable to fully
compensate the consumer for defects in the product or service and,
of course, have a right of recourse against who actually caused the
defect.
The Consumer Protection Code and the Civil Code do not provide
for the impossibility of determining what product damaged the
consumer and do not define any method for sharing of liability
based on the suppliers’ share in the relevant market. In addition,
there is no case law in this respect.
ICLG TO: PRODUCT LIABILITY 2009
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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 information and warnings required to be placed on products are
sparsely determined in various regulations issued according to the
product class.
Anyway, the Brazilian Consumer Protection Code establishes
certain information that is required on products or services:
characteristics; qualities; quantity; composition; price; warranty;
expiration period; origin; and risks. Therefore, failure to warn is a
violation of law.
In case of an anonymous, misidentified, or perishable product
requiring special storage, the merchant can also be held liable
because it becomes the apparent supplier and if there are
intermediaries in the supply chain, they are jointly liable as
mentioned above.
In either case, there is a right of recourse against who actually
caused the damage, if it can be proven.
Finally, there is no “learned intermediary” principle under Brazilian
laws.
3 Defences and Estoppel
3.1 What defences, if any, are available?
The causes for exemption from civil liability are expressly and
categorically provided by the Brazilian Consumer Protection Code,
without prejudice to exemption from liability in case of an act of
God as defined in the Brazilian Civil Code. They are: failure to
offer the product in the market; lack of defect in the product or
service; and exclusive fault of the victim or third party.
The Brazilian Penal Code, in turn, provides for events of criminal
law exclusion and exemption from guilt. In addition, in the
criminal field, liability will always depend on the subject’s criminal
intent and it is unreasonable to speak of objective liability.
Likewise, liability of independent professionals depends on
negligence.
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
defense, 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?
Generally speaking, note that the Brazilian Consumer Protection
Code and the Civil Code did not include, among the causes for
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