NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
The defectiveness of a product is presumed where the defendant fails to disclose relevant evidence. Defend - ants can also request disclosure of relevant evidence and need to present facts and evidence sufficient to demonstrate the defendant’s need for evidence to counter a claim. When determining whether the disclosure is necessary and proportionate, national courts will consider the legitimate interests of all parties concerned, including third parties, in particular concerning the protection of confidential information and trade secrets. 2.8 Rules for Expert Evidence in Product Liability Cases The parties are allowed to present expert evidence to support their arguments and positions. In addition, the court can appoint an expert, either upon request of one of the parties or upon its own authority. The court-appointed expert is regarded as fully independ - ent. The expert is not permitted to have a role in the decision-making process alongside the judge. 2.9 Burden of Proof in Product Liability Cases Burden of Proof The burden of proof lies with the claimant. The injured party needs to prove the damage, the defect and the causal link between the damage suffered and the defect (Article 6:188 of the DCC). The same applies to a tort claim, based on Article 6:162 of the DCC, although proof of an attributable unlawful act is also required. The new PLD introduces the presumption of defect and/or causal link under certain conditions. Res Ipsa Loquitur In cases of incidental product failure, defectiveness can be presumed under this doctrine. Batch Liability In the Boston Scientific case of 5 March 2015 (ECLI:EU:C:2015:148) involving pacemakers and defibrillators implanted in patients, the European Court of Justice introduced the principle of “batch liability”:“ Where it is found that such products belong- ing to the same group , or forming part of the same production series , have a potential defect , products
within that batch may be classified as defective without needing to prove the defect in the particular product in question ”. In the same judgment, the Court ruled that compensation for damages includes the costs relating to replacing the defective product, provided that such replacement is required to overcome the defect in the product in question. Batch liability is adopted in the new PLD. 2.10 Courts in Which Product Liability Claims Are Brought Civil Court Product liability claims in the Netherlands are normally brought before one of the eleven District Courts. The cantonal court is competent for claims with a maxi - mum quantum of EUR25,000. The relative jurisdiction of a specific court depends on factors such as where the harmful event occurred or where the defendant is domiciled. Judges Cases are decided by judges. The Dutch legal system is not familiar with juries. 2.11 Appeal Mechanisms for Product Liability Claims Parties are allowed to appeal within three months at the Court of Appeal. One can also appeal at the Supreme Court, for which a term of three months also applies. Shorter terms apply for interlocutory proceed - ings. 2.12 Defences to Product Liability Claims According to the current Article 6:185 of the DCC, the following statutory defences regarding strict liability are available to the manufacturer: • they did not put the product on the market; • with regard to the circumstances, it is likely that the defect that caused the damage did not exist at the time the product was put on the market or that the defect occurred afterwards; • the product was neither manufactured by the manufacturer for sale or any form of distribution for economic purposes nor manufactured or distrib - uted by them in the course of their professional practice or business;
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