SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
If a party wants to rely on evidence in the possession of the opposing party or a third party (eg, a defective product, purchase receipt or medical reports), it has to precisely identify the evidence and request that the court order that the evidence be provided. Preventative taking of evidence If a potential claimant (ie, an injured person) has rea - son to believe that evidence is at risk, it may request the preventative taking of evidence by the court. This request can be filed at any time during the proceed - ings and even prior to the commencement of the pro - ceedings. The preventative taking of evidence is considered an interim measure. The request is usually granted if: • a specific law or provision allows the preventative taking of evidence; • the evidence is at risk (which is the case if the evi - dence may cease to exist or may alter before the ordinary evidentiary proceedings); or • there is another interest worthy of protection. In any case, the requesting party has to credibly dem - onstrate (but not prove) the grounds on which it bases its request. In the case of imminent harm, the request can be granted ex parte. 2.8 Rules for Expert Evidence in Product Liability Cases The court may seek an opinion from one or more experts at the request of a party or ex officio. How - ever, the court will do so only if it considers an expert opinion necessary to prove relevant facts that are dis - puted by the parties. If such an opinion is sought, it is the court that appoints as well as instructs the experts and submits the relevant questions to them. Prior to this, the parties are given the opportunity to submit additional questions or to have the questions modi - fied. The court can order that the experts submit their opinion in writing or present it orally (or via electronic means). It may also summon the experts to the hear - ing to present and explain their written opinion. In that case, the parties will be given the opportunity to ask for explanations or to put additional questions to the expert. However, cross-examination of the expert is not permitted.
Furthermore, the court may put questions to a witness with expert knowledge in order to assess the merits of the case. The expert witness must have special exper - tise in the subject so that the court can examine the expert witness not only with regard to the merits, but also on its assessment thereof. However, an expert witness cannot replace an expert opinion. In contrast to an expert, the expert witness is not subject to an appointment procedure. Lastly, an expert witness is liable to prosecution only for giving false testimony and not for giving a false expert opinion. Parties are free to individually commission an expert opinion and to submit it in the proceedings. As opposed to an expert opinion that was produced by a court-appointed expert, the party expert opinion is not considered to be evidence but will only qualify as a party allegation. 2.9 Burden of Proof in Product Liability Cases As a general rule under Swiss civil law, it is incumbent upon the party who wants to rely on a certain fact to establish and prove this fact. For product liability cas - es, this means that it is generally the injured person who bears the burden of proof for all facts underlying its claim. This holds true for all claims (and the respective requirements) based on tort law and on the Federal Product Liability Act. For claims based on a contract there is one deviation from this rule: the burden of proof for fault is reversed. This means that, if all other requirements are met, it is assumed that the defendant was at fault and it will be upon the defendant (ie, the producer) to prove that this was not the case. From a procedural perspective, it may thus be favourable for an injured person to bring a claim based on contract rather than tort law. For claims based on a sales con - tract, provided that a direct nexus between the dam - age and the defect of the product can be established, fault is not a requirement at all. The same holds true for claims based on the Federal Product Liability Act, which provides for strict liability. The Federal Product Liability Act provides, however, for several exceptions to this strict liability (see 2.12 Defences to Product Liability Claims ). In accordance with the general rule set out above, it is the producer
262 CHAMBERS.COM
Powered by FlippingBook