French product liability law: towards a pro-plaintiff system.

• Author: Rouhette, Thomas

EUROPE is generally regarded as a place where exposure to damages is relatively low and "seen as place where cases are decided on their legal merits, without a lot of theater". (1) Unfortunately, some European jurisdictions tend to singularize themselves by drifting away from traditional principles of civil liability. Among those, France has become more and more challenging for manufacturers, its civil liability system becoming as unwelcoming for corporations as its tax and employment regimes.

In addition, the past three years in France have been characterized by an increase in the number of warnings against potentially hazardous substances to human health and the environment in consumer products or the workplace. The French public has been targeted by a significant number of headlines that draw attention to scientific reports condemning substances. Media reports have linked alleged dangers to pesticides, diesel particles, GMO, asphalt, phthalates or Bisphenol A, among others.

Industry has been slow to react, while plaintiffs' associations, on the other hand, have been quick to emerge and are very active in seeking to obtain bans or limitations from the French government, which in turn is keen on granting them on the "precautionary principle". Over the past couple of years, French authorities have been under attack as a result of several health "scandals," accused of not taking measures quickly enough. The result is that these same authorities are now (too) proactive in banning substances and imposing new rules on manufacturers.

For instance on June 14, 2012, the French National Agency for the Safety of Medicines and Health Products ("ANSM") (2) issued a decision requesting the recall and sudden prohibition of cosmetic products containing chloroacetamide. (3) The ANSM explained that this prohibition was a precaution until the European Union ("EU") Commission had made a decision on this substance. Less than a year before, the French National Assembly voted against the use of parabens, alkylphenols and phthalates. (4) In the same line, France is one of the first Member States of the EU to ban the use of Bisphenol A in certain children's products, and as of January 1, 2015, in all food packaging. (5) Another exception in France is the vote by the French National Assembly to prohibit a corn GMO manufactured by Monsanto on and after April 15, 2015.

Besides the increasing regulatory burden, which can sometimes be fairly unpredictable, the legal regime around potentially hazardous substances has suffered from a change in civil liability and product liability rules. Indeed, the control of the use of potentially hazardous substances seems to be governed by the will of the French authorities and courts to reassure the public no matter what.

Historically, product liability arose by case law based on the general law of obligations, in particular, civil tort liability. Liability implied a fault of the manufacturer in the design or manufacture of a product, a loss, usually bodily injury, and a causal link between the fault and the alleged loss. The purpose of liability was to compensate the user for the loss sustained due to the latter's exposure by the manufacturer to an established danger.

French case law, as described in this article, has progressively led to a regime of purely objective (strict) liability, through (i) the disappearance of the concept of fault, (ii) the dilution of the causal link, and (iii) an overly favorable regime for plaintiffs concerning the demonstration of their alleged damage.

As discussed in Section I with respect to the concept of fault, the disputes relating to the use of asbestos, which involve both liability law and employment law, are particularly topical. Companies are currently required to compensate all sorts of losses relating to asbestos, including for plaintiffs who are perfectly healthy, based on anxiety (which in the United States may be styled "emotional distress") that one day they will develop an illness, even though the majority of these companies lawfully used asbestos in their manufacturing sites in full compliance with the rules that were applicable at the time. Although these companies have not committed any fault (within the meaning of the traditional concept of an illicit behavior in breach of a pre-established obligation), they are nearly all systematically found liable.

With respect to the causal link, Section II considers cases where liability is found without a scientifically established basis, for example, the existence of a link between the Hepatitis B vaccine and certain neurological disorders like multiple sclerosis. Similarly and more recently, scientific uncertainty surrounding the consequences of the exposure to electromagnetic waves has not prevented some courts from ordering the dismantling of relay masts. Manufacturers of pesticides are also beginning to be found liable, even though there is no scientific certainty of causation and the use of such products remains lawful.

Regarding loss, Section III once again considers the asbestos field, where the French Supreme Court has ruled that plaintiffs do not need to demonstrate anxiety through medical evidence and has decided that there is a presumption of loss in certain circumstances.

Section IV warns manufacturers that, in addition to increasing exposure before employment and civil courts, companies also now face an increasing exposure before criminal courts that must not be underestimated.

1. The Shift In The Burden Of Proof Over Fault

   Under French civil liability law, the burden of proof for fault by the defendant lies with the plaintiff. However, case law has tended to shift this burden of proof to the defendant on the grounds that, in product liability cases, the plaintiff is often an individual, while the defendant is a company with greater means to engage in proceedings. Litigation arising out of the composition of a product provides a good example of such a shift. Indeed, the manufacturer almost always finds itself in a situation where it has to prove that the use of a substance in its product and the resulting exposure of consumers or employees does not constitute a fault.

   1. Genesis: Asbestos-Related Cases

      Pursuant to Article L. 452-1 of the French Social Security Code, "when an [occupational] accident is caused by the gross negligence of the employer [...], the victim or beneficiaries are entitled to obtain additional compensation [...] [from Social Security]." In such cases, employees can also obtain compensation for their non-economic loss, such as the loss caused by physical and moral pain, their aesthetic loss and loss of amenity or losses resulting from the loss or reduction of professional promotion opportunities. Since judgments of the Social Chamber of the French Supreme Court (Com de Cassation) on February 28, 2002, (6) rendered in asbestos-related cases, there is no longer a requirement that the employer's act or omission have been carried out deliberately. The Cour de Cassation ruled that an employer who was, or should have been, aware of the danger to which its employees were exposed and did not take the necessary measures to protect them was guilty of gross negligence.

      In the same decisions, the Social Chamber of the Cour de Cassation ruled that employers are under an obligation to achieve a safe result. In practice, Social Security Courts tend to reverse the burden of proof by holding that employers are presumed to have committed gross negligence if an employee has developed an asbestos-related illness. It is now the employer's responsibility to prove that all the necessary measures were taken to protect employees' health.

      The Com de Cassation also specified that a risk exists if the employees' exposure is "usual" and not only "permanent and continuous." (7) The fact that the employees "did not directly participate in the use or handling of asbestos" (8) is irrelevant.

      Since asbestos-related illnesses were classified as occupational illnesses in 1945 and scientists have warned about the dangers related to asbestos for many years, the Corn de Cassation considers that employers are deemed to have been aware of the dangers of asbestos. According to this reasoning, it may be inferred from the sole fact that employees have been infected by asbestos that their employers did not take necessary measures to reduce risk and therefore committed gross negligence, in spite of the employer's compliance with the applicable health and safety regulations. The Com de Cassation, in a decision dated July 9, 2009, thus considered that even if the samples taken and analyses carried out by an employer had shown that the number of asbestos fibers did not exceed the legal threshold, the employer "should have been aware of the danger to which the employee was exposed." (9) This presumption of gross negligence gives rise to the right for employees to obtain damages and increase their pension.

   2. Extension to Other Substances

      This pro-plaintiff asbestos-related case law makes it extremely difficult for companies to win, and it now extends to other substances, most notably pesticides. French law has tried to facilitate the recognition of the occupational nature of illnesses by creating tables that list types of illnesses that employees may develop due to the exposure to certain products in the workplace. When an employee develops an illness that is listed in such tables, his/her illness is presumed to be occupational, and it is much easier to obtain compensation from both Social Security and subsequently from the employer through a gross negligence claim. If, however, the illness is...