SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
If a party wants to rely on evidence in the pos - session 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 evi - dence be provided. Preventative taking of evidence If a potential claimant (ie, an injured person) has reason 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 proceedings and even prior to the commencement of the proceedings. The preventative taking of evidence is consid - ered an interim measure. The request is usually granted if: • a specific law or provision allows the preven - tative taking of evidence; • the evidence is at risk (which is the case if the evidence 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 cred - ibly demonstrate (but not prove) the grounds on which it bases its request. In the case of immi - nent 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. However, the court will do so only if it considers an expert opinion necessary to prove relevant facts that are disputed by the parties. If such an opinion is sought, it is the court that appoints as well as instructs the experts and submits the rel - evant questions to them. Prior to this, the parties
are given the opportunity to submit additional questions or to have the questions modified. The court can order that the experts submit their opinion in writing or present it orally (or via elec - tronic means). It may also summon the experts to the hearing 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 wit - ness must have special expertise 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 proceed - ings. 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 cases, this means that it is gen - erally the injured person who bears the burden of proof for all facts underlying its claim.
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