WWW.LAWYER-MONTHLY.COM 51 that all regulations are complied with. All laws you read will come with Decrees explaining some of their provisions and even Ministerial Orders detailing aspects of the Decrees. In other words, never stop your analysis of laws. What are the most common challenges companies face when defending against product liability claims in France? The challenges we face in defending against product liability claims in France are quite similar to what companies will face in all jurisdictions in the EU under the upcoming New Product Liability Directive. Given that there is no discovery/ disclosure process in France, it is fair to say that Courts tend to shift the burden of proof onto companies to demonstrate a lack of defect rather than expecting the claimants to prove the existence of the alleged defect. We have the possibility to have a Courtappointed Expert look into the technical root cause of the incident. However, experience shows that the current pool of experts is not familiar enough with products integrating technology, whether older or new. They are often retired engineers who are not up to speed with new technologies. This creates a lot of uncertainty regarding how they will understand a product and a complex issue, which can lead to disastrous results where they conclude there is a defect in the product when it is not the case, and then the Court follows their opinion, as a Judge would necessarily trust a technical Expert. It is therefore very important to have a sophisticated team in place: experienced product litigators, third-party technical experts to assist said litigators, and the engineers of the company that is being sued. The other main challenge is that when small claims are filed, the claim can fall under the radar of the legal team of the company that is being sued, and expert proceedings are not necessarily ordered (as they would cost more than the damages at stake). In that case, no proper defence is developed, and a decision can be handed down recognising a defect without any analysis of the product having been carried out. How do you balance defending your clients while ensuring that consumer safety and regulatory compliance are upheld? I do not know any company that does not want to make consumer safety a priority. As outside Counsel, our mission is to ensure that our clients understand the standards applicable in France to determine whether a product is compliant, and if it is not, whether French law contains specificities that need to be known, such as the requirement that all communications to French consumers be in French.
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