JAPAN Law and Practice Contributed by: Shingo Yamada, Yugo Komori, Yasuhiro Akita and Takuma Inoue, Oh-Ebashi LPC & Partners
operator is under a general liability to pay damages to a number of affected consumers; and • in the second stage, for each consumer who belongs to the class confirmed by the first-stage judgment and has opted in, it is determined, through a simplified procedure, whether the con - sumer is entitled to payment and, if so, the extent of such entitlement. However, in practice, this procedure is unlikely to be used for product liability claims. This is partly because claims that may be brought under this procedure are limited to claims relating to consumer contracts including contractual claims and claims for damages in tort within a strictly defined scope; claims for damages under the Product Liability Act are excluded. In addition, claims under this proce - dure are primarily limited to the value of the purchase price of the product, and may not extend to conse - quential damage, loss of profits, or damage arising from harm to life or body. Instead, where a number of victims are affected, mul - tiple victims may jointly file lawsuits, which may be consolidated for hearing. Such group litigation, or mass tort litigation, is no more than the joinder for consolidated hearing of individual actions brought by each victim, that is, there is no mechanism whereby victims are compulsorily brought into proceedings as parties; however, plaintiffs often try to establish frame - works similar to a class action by requesting courts and defendants to enter into a comprehensive settle - ment scheme covering all victims, not merely those who are parties to the proceedings. 2.17 Summary of Significant Recent Product Liability Claims In Japan, there is only one Supreme Court judgment in which the court has presented a substantive interpre - tation of product liability. This case was a widely pub - licised mass tort litigation, in which the plaintiffs were, among others, the bereaved families of patients who died due to side effects of a lung cancer drug, and the defendants were the pharmaceutical company, which the author firm represented, and the Japanese gov - ernment. The main issue in the case was the existence of a design defect and warning defect. In 2013, the
Supreme Court held that no defect existed, stating with respect to warning defects that it was sufficient for manufacturers to provide warnings regarding risks that were foreseeable based on scientific or technical knowledge at the time of delivery. This aligns with the definition of warning defects under the Restatement (Third) of Torts in the United States. Another significant case is a mass tort litigation, in which patients who developed wheat allergies after using a wheat-containing soap claimed for damages against the seller, manufacturer, and raw material sup - plier. There were numerous issues in this case: for example, the High Court held in 2018 that the seller of the soap was a de facto manufacturer based on the facts, such as the seller’s registration of the trade mark, statements in brochures indicating that the seller was the product developer, and the fact that manufacturing equipment owned by the seller was used by the manufacturer. The court also addressed issues including the relevant point in time for deter - mining defects, the development risk defence, and the factors to be considered in assessing defects in generic products. There are also several significant cases with respect to the burden of proof as described in 2.9 Burden of Proof in Product Liability Cases . For example, in a case where a victim suffered a low-temperature burn caused by prolonged use of a mobile phone inside a Japanese kotatsu, a heated table with a blanket, the High Court held in 2010 that, whilst the plaintiff bore the burden of proving the existence of a defect, given circumstances such as the occurrence of the accident during normal use, the fact that the mobile phone was the cause of the burn, and the occurrence of abnormal overheating of the phone, it was possible to infer the existence of a defect, even in the absence of specific proof regarding the details of the defect or the mechanism of the overheating. In another case concerning damage to a house caused by a fire, the High Court held in 2020 that based on facts such as the burn patterns on an air conditioner’s outdoor unit and the situation immediately following the outbreak of the fire, it was possible to infer both the existence of a defect and the causal relationship between the defect and the fire, even without specific proof regard -
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