Product Liability 2009 - Arnold & Porter LLP

Brazil
94
Barretto Ferreira, Kujawski, Brancher e Gonçalves (BKBG) Brazil
exemption from liability, development risks, that is, risks and
defects that could not be foreseen due to the current state of
technique and science when the products would have been offered
in the market.
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?
The Brazilian Consumer Protection Code and the Civil Code did
not include, among the causes for exemption from liability, proper
compliance with rules and requirements for the product because
liability for a product or service defect is objective.
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?
It is possible that different consumers may exercise their right of
action for a product or service defect, except in the case of class
actions.
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?
All economic agents involved in the production and sales of a
certain product are objectively 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. It is possible, however, to exercise the right of recourse
against who actually caused the defect through a subsequent
lawsuit.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Exclusive fault of the victim is an event of exemption from civil and
criminal liability. In case of contributory fault of the victim or third
party, there may be a reduction in the compensation payable.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
Under the Brazilian legal system, civil actions are not subject to
Jury Trial. Brazilian law limits Jury Trial to very few and specific
types of crime, limited to cases involving intentional crimes against
life, such as homicide, infanticide or kidnapping with death.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
Yes, a court can appoint an expert in the cases where evidence of
the disputed fact requires technical expertise. This professional
cannot only examine the evidence presented by the parties but can
also produce expert evidence in the procedure. Note that the
number of experts involved in the investigation can be increased
according to the fields of knowledge involved in the matter. Thus,
a court can, for example, appoint a medical expert and a mechanical
engineer to examine injuries caused by a defect in a home
appliance.
In addition, it is worth remembering that the parties may appoint a
technical assistant to be present in the expert examinations and
assess and challenge the final report submitted by the expert
appointed.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
Protection of collective rights in consumer relations is obtained
through civil class actions, regulated by Law 7347 of July 24, 1985.
In these actions, like the entire Brazilian collective law, res judicata
only operates secundum eventum litis, that is, the effect of a
judgment granting a collective claim is necessarily extended to the
entire community. Instead, if the claim is denied, res judicata will
prevent a new class action from being filed, but will not stop
individual actions on the same matter. Thus, there is no practical
need for, for example, the right to opt out because res judicata on a
class action only operates to the benefit of the community, not to its
detriment. In other words, unfavourable res judicata cannot even
affect or prevent filing of an individual action seeking the same
rights.
With regard to class actions, in accordance with Article 82 of the
Consumer Protection Code, the following also have standing to sue:
(i) the Public Prosecution Service; (ii) the Federal Government,
States, Municipalities and the Federal District; (iii) centralised and
decentralised governmental agencies; and (iv) associations duly
organised for at least one year with a mission that includes the
defense of collective interests and rights.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
Yes, as set forth in question 4.3, associations, including those for
consumer protection, have standing to sue on behalf of a group of
consumers.
4.5 How long does it normally take to get to trial?
Not applicable. There is no pretrial stage in the Brazilian legal
system.
4.6 Can the court try preliminary issues, the result of which
determines whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
Yes, motions for dismissal of the case can be decided preliminarily.
Thus, before trying the claim brought to the court, matters like
standing of the parties, legal right to sue, and legally cognizable
relief are heard before consideration of the merits.
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