2023-12-11 05:00:05
MDoes putting a drug on the market which turns out to be defective and, secondly, keeping it there, knowing that it causes fatal lesions, amounts to the same thing? This question is at the heart of the trial between Mme X, victim of the Mediator, at the Servier laboratories, which, from 1976, marketed this antidiabetic, at the origin of many deaths.
Mme X, who suffered heart damage, became a civil party in the 2019 criminal trial, following which Servier laboratories were ordered to pay 180 million euros to some 6,500 victims, including herself (30,000 euros), for “deception regarding the dangerousness of the product having generated anxiety damage”.
But she is still awaiting compensation for her bodily injury, for which the Servier laboratories offered her 9,700 euros, while she might receive 175,000, at the end of the second criminal trial, for the offense of injury and manslaughter, which will be held one day, but on a date still unknown.
Liability for defective products
To save time, in July 2020 it took Servier laboratories to court, on the basis of liability for defective products; this is necessary when people suffer the effects of medications which “do not offer the security that one might legitimately expect”.
This basis provides for a short limitation period, of three years – which, in this case, was exceeded – from the moment people know the origin of their damage, unless they prove that this damage is attributable to a ” mistake “, distinct from simple defect; in which case they can ” opt “ for the common law regime and its long prescription.
What liability for defective products
It was on July 25, 1985 that the Council of the European Communities adopted the directive on liability for defective products. This compromise text says that the producer is automatically responsible for damage caused by a defect in his product, whether or not he is linked by a contract to the victim (article 1245 of the civil code). This must only prove the damage, the defect and the causal link which unites them (article 1245-8), and not a fault.
It is, however, subject to a very short limitation period of three years, which runs from the date on which the victim became aware of the origin of his damage (1245-16). It is often shorter than that of common law (in France, ten years from “consolidation”, article 2226). As a result, certain Member States have obtained a right of option (article 13), which the Court of Justice of the European Communities has said (C-183/00) must be exercised on a different basis (article 1245 -17).
M’s lawyerme X, Me Anne-Laure Tiphaine (Coubris firm), therefore maintained that the heart damage suffered by his client, for having taken Mediator between 2006 and 2008, was the result of “deliberate deficiency” Servier laboratories which, informed in the 1990s of the dangerousness of the product, refrained from withdrawing it from the market (while they removed it from Switzerland in 1999, from Spain and Italy in 2003). Without this « inaction »his client would be fine.
The magistrates on the merits, and in particular the Court of Appeal of Versailles, on July 7, 2022, judged that the distinction she made was “artificial”and only intended for ” get around “ the rules of prescription. But, on November 15, 2023 (appeal 22-21.174), the Court of Cassation ruled them wrong: maintaining in circulation the product of which the producer knows the defect constitutes ” a fault “.
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