SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
caused by a medication are barred by the statute of limitations. The absolute statute of limitations of (at that time) ten years begins with birth and had there - fore expired in 2011 in this specific case. An exten - sion of the statute of limitations based on criminal law provisions or the case law of the European Court of Human Rights was rejected, as the parents and the child had been informed of the risks and the harm at an early stage and had had sufficient time to assert their claims. The court further clarified that prenatal injuries do not constitute grievous bodily harm under criminal law as long as the injured party has not yet been born and is therefore not a person in the criminal law sense. Civil procedural remedies could have been used to interrupt the statute of limitations. The court rejected an exception based on the gradual develop - ment of the harm or in light of Article 6 of the European Convention on Human Rights. On 22 April 2024, the Federal Supreme Court issued a ruling on jurisdiction under the Lugano Convention in a product liability case involving a bicycle accident in Italy. The Swiss-based plaintiff, who had designed a defective bicycle, sought a negative declaratory judgment in Switzerland to establish that no liability existed, after the defendant had brought a claim in Italy. The court ruled that the dispute qualified as a tor - tious action under Article 5, paragraph 3 of the Lugano Convention. Although the bicycle was assembled and manufactured in China and the Netherlands, the court considered the design work carried out in Switzerland as the relevant harmful act. Therefore, Swiss courts admitted jurisdiction in accordance with Article 5, paragraph 3 of the Lugano Convention (4A_249/2023). On 26 November 2021, the Supreme Court of the Canton of Berne ruled in its decision (ZK 20 399) that the court of first instance had unjustifiably rejected a claim for product liability brought against Johnson & Johnson by a patient who had suffered from several complaints after the implant of a hip prosthesis, which was eventually removed. The Higher Court held that the product’s defectiveness in the sense of Article 4 of the Federal Product Liability Act must be assessed based on the reasonable safety expectations of an average patient at the time the product was brought to market, including knowledge available to physicians. The hip prosthesis was defective: it had a significantly
higher revision rate than expected, caused toxic reac - tions in about half of patients, and was withdrawn from the market after just over five years. The fact that the manufacturer complied with regulatory requirements (such as CE-marking) did not preclude a finding of defectiveness under liability law. The court also clari - fied in relation to Article 5, paragraph 1, letter e of the Federal Product Liability Act that the manufacturer can escape liability only by proving that the defect could not have been detected by scientific or techni - cal knowledge available at the time (development risk defence); the burden of proof for such evidence of exoneration is on the manufacturer. The appeal was therefore partially upheld and remanded to the lower court for further evidence and a new decision. In its decision of 15 March 2021, the Swiss Federal Supreme Court clarified that the provisions of food law also apply to intermediaries. In the case at hand, the package leaflet was qualified as inadmissible, even though it was only directed at the sales staff of drug - stores and pharmacies (2C_733/2020). In its decision of 31 May 2019 (2C_60/2018), the Federal Supreme Court specified that missing expert information from a preparation label, which therefore does not warn of a preparation-specific risk, is not to be considered a product defect in every case. In its decision of 5 January 2015 (4A_365/2014; 4A_371/2014), the Federal Supreme Court held that, in the case of prescription drugs, the justified safety expectations of the product need to be assessed with regard to the safety expectations of the patient, but also with regard to the knowledge of the prescribing physician. In the specific case (concerning the con - traceptive pill “Yasmin”), it was deemed sufficient that the warning of a possible increased risk of a thrombo - embolic event, compared to earlier generation contra - ceptive pills, was only included in the expert informa - tion, not in the patient information. In its decision of 9 September 2013 (2C_13/2013), the Federal Supreme Court held that the malfunction of a product is considered a product defect if the product’s value is specifically based on its serviceability (ie, a fire extinguisher).
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