By three court orders issued on 28 January 2016, the Nanterre
Civil Court interim relief judge (Juge des
référés du Tribunal de grande instance de
Nanterre) granted a provision to 13 patients who had taken the
Médiator® drug, in order to compensate for the anxiety
damage they allegedly suffered on the basis of product liability
law (art. 1386-1 and seq. of the French Civil Code).
The interim relief judge rejected the defendant's (the
Laboratoires Servier) statute of limitation argument (the statutory
limit is reached three years after the knowledge of the damage, the
product's defect and the producer's identity). The judge
did not rule on the delay's starting point, although both
parties had different views on this matter.
According to the Laboratoires Servier, the starting point was
the date of the drug's withdrawal from the market by AFSSAPS
(Agence Française de Sécurité Sanitaire
des Produits de Santé – French Agency for the Safety
of Health Products), which took place in November 2009.
In contrast, the claimants alleged that one had to take into
consideration publications of 2011 and 2012 relating to the
drug's toxicity. However, the judge considered that the statute
of limitation had been interrupted on the date the patients had
filed a civil suit before the Criminal Court (Tribunal
correctionnel), examining the criminal aspects of the
proceedings - in May 2012 - because "both claims, yet
distinct, had the same purpose, so that the second one was
virtually included in the first one".
The interim relief judge only granted a provision to patients
who had effectively demonstrated a medical follow-up relating to
the exposure "considering the risk which cannot currently
be excluded of developing PAH (Pulmonary Arterial Hypertension)
more than two years after stopping treatment". In the
judge's opinion, this risk "was likely to induce a
compensable sense of unease on the grounds of anxiety
damage". Conversely, the judge rejected claims of
patients who had not proven an anxiety as well as a constraining
medical follow-up regarding the risk of developing PAH on the
grounds that "the request for provision could be seriously
Although the judge was focused on determining whether the
claimants were really anxious in light of their medical follow-up,
it should be noted that regardless of the follow-up's length,
and, by way of consequence, of the patient's anxiety, a
provision of €1,500 was granted to each of the patients whose
claim was successful.
At the interim relief stage, this eminently subjective damage is
thus repaired on a lump-sum basis, as it is also the case in
asbestos-related matters. One may not, however, speculate on how
the trial judge, evaluating the merits of the case, will rule. He
could indeed decide to modify the amounts of damages granted, or
also compensate claimants who were unsuccessful before the interim
These three orders suggest that courts ruling on the merits
could allow compensation on the grounds of anxiety damage in
matters that greatly differ from occupational exposure to asbestos.
Claims were brought, in the present case, on the ground of
liability for defective products.
As a result, one could foresee that similar proceedings could be
initiated against manufacturers of products considered to be
defective, should their users have been exposed to a risk which has
not materialised into a physical injury, but which has simply
induced anxiety about potentially developing such an injury.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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