FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
2.9 Burden of Proof in Product Liability Cases The burden of proving the elements constituting liability lies with the claimant. In the case of vaccines alleged to be defective, the Court of Cassation has accepted the use of presumptions of fault to prove the defect and the causal link between the defect and the dam - age where there is scientific uncertainty. This has been validated by the Court of Justice of the European Union, subject to the fact that the national courts ensure that the practical appli - cation they make of the said evidential system does not result in disregarding the burden of proof established by Directive or in undermining the effectiveness of the liability system estab - lished by this Directive. It also states that the Directive precludes a system of proof based on presumptions which would always be regarded as established when certain predetermined fac - tual indications of causation are met (Judgment of the Court (Second Chamber) of 21 June 2017, N. W and Others v Sanofi Pasteur MSD SNC and Others). A recent ruling of the Conseil d’État has stated that, although no causal link has yet been estab - lished between the administration of vaccines and multiple sclerosis, the hypothesis that such a link exists has been envisaged by scientific research work that has given rise to publications in recognised journals, which are not formally contradicted by current scientific data. Thus, the fact that scientific work has been carried out on the subject would suffice to presume the exist - ence of a causal link, regardless of the outcome of this work (Conseil d’État, 7 November 2024, Nos 472707, 472625 and 4662883).
• take cognisance of the document alone and, if necessary, order an expert report and seek the opinion, for each of the parties, of a per - son authorised to assist or represent them, in order to decide whether to apply the protec - tive measures provided for in this article; • decide to limit the communication or produc - tion of this document to certain of its ele - ments, order its communication or production in summary form or restrict access to it, for each of the parties, to a maximum of one natural person and one person authorised to assist or represent him or her; • decide that the hearing will take place and that the decision will be handed down in chambers; or • adapt the reasons for its decision and the means of publicising it to the requirements of protecting business confidentiality (Article L. 153-1 of the Commercial Code). 2.8 Rules for Expert Evidence in Product Liability Cases There are no specific rules of evidence in relation to defective products before appointed experts. In France, experts are appointed based on lists drawn up by the Cour de Cassation and the Courts of Appeal. Article 275 of the Code of Civil Procedure allows the expert to ask the parties directly to provide all documents he/she deems necessary in order to carry out his/her task. This request is not subject to any formalities and the parties must respond without delay. However, if the parties fail to do so, the expert will inform the judge, who may order the submission of docu - ments under penalty. On the other hand, the judge can order the par - ties to produce specially designated documents but cannot compel them to produce “any docu- ments requested of them” by the expert.
80
CHAMBERS.COM
Powered by FlippingBook