JAPAN Law and Practice Contributed by: Shingo Yamada, Yugo Komori, Yasuhiro Akita and Takuma Inoue, Oh-Ebashi LPC & Partners
2.8 Rules for Expert Evidence in Product Liability Cases In Japan, there are no rules for expert evidence spe - cific to product liability cases; the general rules in civil proceedings are applied. Private Expert A party may produce an expert opinion written by an individual whom the party selects and retains, for the purpose of establishing specialised expertise. A party may also apply to the court for witness examination of an expert whom the party also selects and retains. Such evidentiary activities are widely undertaken in practice so that parties are able to select the indi - viduals they consider most suitable to support their claims. Court-Appointed Expert A party may apply to the court for an expert examina - tion by a court-appointed expert for the purpose of establishing specialised expertise. The opinion of the court-appointed expert constitutes evidence. Whilst the court is not strictly bound by the expert’s opinion under the principle of free evaluation of evidence, it has, in practice, a significant influence on the court’s findings. Technical Advisers and Conciliation Commissioners A technical adviser is an expert appointed by the court in order to provide explanations based on specialised expertise. The technical adviser serves in an advisory capacity, supplementing knowledge that the court may lack; however, the technical adviser’s explana - tions themselves do not constitute evidence. By way of exception, the court may appoint an adviser with specialised expertise as a mediation commis - sioner after converting the litigation proceedings into mediation proceedings. In such a case, the court may form its conviction based on the specialised expertise of the adviser, or mediation commissioner. 2.9 Burden of Proof in Product Liability Cases General Principle As described in 2.1 Product Liability Causes of Action and Sources of Law , the principal causes of action in product liability claims are tort, product liability and
inquiries are under a duty to respond; however, there is no sanction for refusal. Inquiry by a Party An inquiry by a party is a procedure under which a party makes written inquiries of the opposing party concerning matters necessary for the preparation of arguments and evidence. A party may use this proce - dure either before or after the commencement of civil proceedings. It is also generally understood that the other party is under a duty to respond; however, there Preservation of evidence as described in 2.6 Rules for Preservation of Evidence in Product Liability Claims is used, especially in medical malpractice cases, as a means not only to prevent the loss or destruction of evidence but also to make the opposing party disclose the relevant evidence, either before or after the commencement of civil proceedings; however, in product liability proceedings, this procedure appears not to be commonly used. Commission of Sending of Documents is no sanction for refusal. Preservation of Evidence Commission of sending of documents is a procedure under which a party applies to the court to request the holder of a specific document, whether the opposing party or a third party, to send the document to the court. A party may apply for this procedure only after the commencement of civil proceedings. It is generally understood that the holder of the document is under a duty to comply; however, there is no sanction for refusal to do so. Order to Submit Documents An order to submit documents is a court order requir - ing the holder of a specific document, whether the opposing party or a third party, to submit it. A party may apply for this procedure only after the com - mencement of civil proceedings. The holder of the document is under a duty to comply. Where the hold - er is the opposing party and fails to comply with the order, the court may deem the applicant’s assertions regarding the contents of the document to be true. Where the holder is a third party and fails to comply with the order, the court may impose a non-criminal monetary fine of up to JPY200,000.
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