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 challenged”.
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 relief judge.
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.
Client Alert 2016-041