European Union: Liability Due To Defective Products And Medication: A Patient Can Search For The Responsibility Of An Industrialist Of Health Within Ten Years Of Damage Consolidation

A patient was given three injections of hepatitis C vaccine between January and August 1995. In 2004, the patient was diagnosed with multiple sclerosis.

In 2009, the latter acted in liability against the pharmaceutical company, the manufacturer of the vaccine, based on the basis of liability for defective products.

The Poitiers Court of Appeal in 2013, declared the action of the patient prescribed under the EU Directive 85/374 / EEC of 25 July 1985 concerning liability for defective products. Indeed, this Directive provides in particular for a limitation period of three years from the date on which the victim had, or ought to have, knowing the damage and the defect of the vaccine.

1. In a judgment of 15 May, 2015 , the Court of Cassation cancelled the judgment of the Court of Appeal on the grounds that " action for extra-contractual liability against the producer of a product whose defective nature is invoked (...) is prescribed, according to the disposition of the domestic law, which are not susceptible to be the subject on this point of an interpretation in conformity with the law of the union, by ten years as from the date of consolidation of the damage initial or aggravated".

This interpretation, in compliance with European case law and favorable to the interests of the patient, has since been taken up by the Supreme Court in two recent decisions, which have been analyzed by us (17 January 2018 n ° 16-25817 and 31 January 2018 No. 17-11259 ).

The case having been referred to the Angers Court of Appeal, the latter aligns itself, on 6 March 2018; on the law case established by the Court of Cassation and applies the period of 10 years prescription of common right from the consolidation of the damage.

2. In order to assess the existence of a causal link between the vaccine and multiple sclerosis , the Angers Court of Appeal relies on a judgment of the Court of Justice of the European Union of 21 July 2017. As per this judgement, in the absence of a scientific consensus in favor of a causal link between the vaccine and the disease, the link can be proven by the patient using a severe index beam, precise and concordant subject it is for each patient to establish proof of these evidence, so that the use of such presumption cannot be considered as a reversal of the burden of proof.

Consequently, in that case, the Angers Court of Appeal dismisses the patient on the ground that the factual elements he relies on "does not constitute sufficiently serious, precise and consistent presumptions permitting a causal link to be vaccine injected in 1995 and multiple sclerosis diagnosed in 2004 ".

Thus, for the patient to have reported evidence of a causal link between the vaccine and multiple sclerosis, the responsibility of the pharmaceutical laboratory cannot be engaged, and this, although the action has not been declared prescribed.

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