GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
2.9 Burden of Proof in Product Liability Cases In general, when a claim is brought under the ProdHaftG or general tort law, the burden of proof for proving a claim is on the claimant. This is referred to as “full proof” ( Vollbeweis ). This means the court must be fully convinced of the truth of the fact proven beyond reasonable doubt. Under the ProdHaftG and general tort law, the claimant must first prove that the “product” was defective and then that this defect caused the alleged injury or damage. Once this has been established, the burden of proof shifts to the defendant. In terms of claims under the ProdHaftG, the defendant may invoke one of the liability exclu - sions specified in Section 1 (2) of the ProdHaftG, eg, that the defect did not exist when the “prod- uct” was put into circulation or that the state of scientific and technical knowledge at the time did not allow the defect to be discovered (see 2.12 Defences to Product Liability Claims ). Under general tort law, it is presumed that the defect occurred as a result of the manufacturer’s actions. The manufacturer can defend them - selves by showing that they met all relevant duties of care and that the defect was not their fault. The reversal of the burden of proof aims to assist claimants, who generally face eviden - tial challenges when the cause of the defect lies within the manufacturer’s remit. In future, claimants will find it easier to access the manufacturer’s internal product safety doc - umentation through the new disclosure of evi - dence rules of the Product Liability Directive
they must also consider the protection of confi - dential information and business secrets. This new requirement poses significant risks for manufacturers as the courts have broad discre - tion in determining the extent of disclosure due to vague legal concepts like necessity and pro - portionality. 2.8 Rules for Expert Evidence in Product Liability Cases In product liability cases, expert evidence often plays a crucial role, given the technical complex - ity of the “products” in question. German civil procedural law does not contain a specific set of rules for expert evidence in product liability cases. The same rules which apply to civil pro - cedure cases in general also apply here. In Germany, the court itself appoints the experts (not ex officio but following a request from a par - ty in their submission). Unlike in other jurisdic - tions, the parties are not able to present their own expert witnesses as primary evidence. Opinions rendered by party-appointed experts are generally considered part of the party’s sub - missions and, in general, do not carry the same evidential weight as those of a court-appointed expert. During the selection process, the court often consults with the parties, especially to avoid an expert being rejected because of con - cerns about bias. After the expert report has been written, the par - ties will have the opportunity to comment on it and challenge the findings through oral argu - ments. During the proceedings, the expert may be called to testify and clarify the findings. While the court is not bound by the expert’s opinion, it will assess all available evidence independently, including the expert’s report.
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