SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
the risk of an “Americanisation” of the legal sys - tem. On 17 March 2025, the National Council followed the proposal of the RK-N and decided not to enter into discussions (non-entry). The bill is now be debated by the second chamber, the Council of States. If the Council of States also decides not to take up the matter, the bill will have definitively failed. Otherwise, the bill be referred back to the National Council. 2.17 Summary of Significant Recent Product Liability Claims There are not many published decisions con - cerning product liability in Switzerland as most cases are resolved through settlement. However, the following cases are noteworthy. On 22 April 2024, the Federal Supreme Court issued a ruling on jurisdiction under the Lugano Convention in a product liability case involv - ing a bicycle accident in Italy. The Swiss-based plaintiff, who had designed a defective bicycle, sought a negative declaratory judgment in Swit - zerland to establish that no liability existed, after the defendant had brought a claim in Italy. The court ruled that the dispute qualified as a tortious 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. There - fore, Swiss courts admitted jurisdiction in accord - ance with Article 5, paragraph 3 of the Lugano Convention (4A_249/2023). On 26 November 2021, the Higher Court of the Canton of Berne found in its decision (ZK 20 399) that the court of first instance had unjustifi - ably 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 eventu -
ally removed. The Higher Court held that it was reasonable to conclude that a prosthesis which had caused a toxic reaction in half of the cases: • had to be removed in more cases than expected; • was the object of an “Urgent Field Safety Notice” ; • was revoked from the Swiss market after five and a half years; and • for which the producer had declared (thereby not accepting any liability) to cover all costs for examinations, treatments and revision surgeries, did not meet the user’s justified safety expectations and was, therefore, faulty in the sense of Article 4 of the Federal Prod - uct Liability Act. In its decision of 15 March 2021, the Swiss Fed - eral 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 direct - ed at the sales staff of drugstores and pharma - cies (2C_733/2020). In its decision of 31 May 2019 (2C_60/2018), the Federal Supreme Court specified that miss - ing 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 justi - fied safety expectations of the product need to be assessed with regard to the safety expecta - tions of the patient, but also with regard to the knowledge of the prescribing physician. In the specific case (concerning the contraceptive pill “Yasmin” ), it was deemed sufficient that the
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