Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.    

Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Standard civil procedural law governs product liability claims.

Claimants must file suit with the competent first-instance court. The first-instance court is the local court for claims of €5,000 or less, while the district court is the competent court for claims exceeding €5,000. Claims before a district court may be brought only if the claimant is represented by a licensed attorney.

Local jurisdiction is generally determined by the defendant's place of business, but a claimant may choose to bring a claim in the locality where:

  • a tort was committed or its results were felt; or
  • a contract will be fulfilled.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

German civil procedure law provides no possibility of an interlocutory judgment or an interlocutory judgment as regards the merits of a product liability claim. An interlocutory judgment decides on preliminary questions – usually on points of contention concerning procedural issues. However, the German courts may rule on parts of the claim in advance (eg, a judgment on the merits regarding the legal foundation of the claim will be rendered first and only after that will a judgment on damages be rendered). These judgments are not interlocutory judgments but can be appealed by ordinary appeal.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

None are available.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Evidence may be formally taken:

  • by visual inspection;
  • by hearing witnesses;
  • from experts; and
  • from records and documents.

For certain issues, the judge may rely on less formal evidence.

Evidence taken by visual inspection is offered by designating the object to be inspected visually and by citing the facts regarding which evidence is to be provided. If an electronic document is to be relied on, it is offered as evidence by producing or transmitting the file. Evidence by hearing witnesses is offered by naming the witnesses and designating the facts regarding which the witnesses are to be examined. A party can be heard as a witness only in exceptional and limited circumstances. Evidence from experts is offered by designating the items for which a report will be prepared. Producing the record or document will constitute the offer of evidence by records and documents.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

Only a judge can assess evidence. The court must appoint an expert where it lacks the required technical or scientific knowledge for considering technical issues. The usual course is for the court-appointed expert to prepare a written report on the technical and scientific issues identified by the court and the parties. The expert can be summoned to a hearing for illustrating his or her report. The court may also order a supplement of the expert report.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Each party can obtain its own private expert opinion and submit the opinion as part of its pleading. Private expert opinions are not formal evidence under the Code of Civil Procedure, but the parties can agree that a private expert opinion will be treated as a formal expert opinion. Presenting private expert opinions is common in medicinal and healthcare-related cases.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Class actions, or similar forms of collective redress, are currently not available for product liability claims in Germany but could become available later in 2018. A procedure for consolidating multi-claimant proceedings already exists in securities litigation. The concept being discussed in consumer matters is known as ‘musterfeststellungsklage’. This collective redress mechanism differs from traditional class or group actions. Qualified entities, such as registered consumer associations, will have standing to sue commercial entities for a declaratory judgment, while consumers can benefit by registering for the musterfeststellungsverfahren via a litigation register without becoming a party to these proceedings. The existence or non-existence of prerequisites for civil claims can be a suit’s subject matter. The plaintiff will be required to demonstrate the existence of 10 similar cases where such subject matter could be relevant. In addition to this requirement, the government intends to implement a threshold of 50 consumers registering in the litigation register. Registration with the litigation register will suspend the limitation period for the consumer's claim.  The declaratory judgment is binding in a follow-up suit between a registered consumer and the defendant entity in the musterfeststellungsverfahren.

Appeals

What rules and procedures govern appeals of court decisions?

Appeals of first-instance court decisions may be taken as a right where the amount of the complaint exceeds €600. Otherwise, the party requires leave to appeal to access the Court of Appeal. Court of Appeal decisions can be appealed to the Federal Supreme Court, but only in relation to questions of law. In some instances, higher review also requires the Court of Appeal to grant leave to appeal.

Statute of limitations

What is the statute of limitations for filing product liability claims?

The time limit for bringing product liability claims under tort law, the Product Liability Act or the Drug Act is generally three years. It is a ‘year-end limitation’ (ie, the three-year limitation period begins at the end of the year in which the claimant became or ought to have become aware of the facts on which the claim is based). 

Regardless, time limits expire 30 years after the incident in question occurs (maximum limitation period). However, claims for property damage are limited to 10 years from the time when the damage manifests itself (subject to the 30-year limitation period commencing the day on which harmful event occurs). Claims under the Product Liability Act will be extinguished 10 years from the day on which the producer put the product into circulation, unless the claimant has initiated proceedings during this time.

The court has no discretion to disapply time limits. 

Timeframe

What is the typical duration of proceedings in product liability cases?

The duration of product liability proceedings varies. First-instance proceedings can take from a few months to three years and appeal proceedings can add several months or years.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

The successful party can recover all necessary costs, including court fees and legal costs. The necessary costs for a lawyer are reimbursed according to statutory fees depending on the claim’s value.

What rules and restrictions (if any) govern contingency fee arrangements?

There are strict restrictions for contingency fee arrangements which are generally not permitted. Fee arrangements can be made conditional on the success of a claim only if the case’s specific circumstances justify such an arrangement. The law specifically provides that such a situation may arise where the client, due to its financial situation, would otherwise be prevented from pursuing the claim.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party funding has been available in Germany for several years. Several institutions offer third-party funding. Legal insurance is also common in Germany.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

Claimants can apply to the court for legal aid. Legal aid will be awarded if the applicant has insufficient financial resources to fund the claim and the claim has a sufficient chance of succeeding.

Settlement

What rules and procedures govern the settlement of product liability cases?

No special rules apply for the settlement of product liability cases. Parties can settle in or out of court. Both types of settlement have pros and cons and decisions will be taken on a case-by-case basis if a settlement is the objective.

How common are settlements in product liability cases?

It is difficult to estimate how common settlements are because whether a settlement can be achieved is determined by the facts and circumstances of the individual case.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

ADR methods are not required by law before initiating litigation. The courts sometimes suggest conducting mediation proceedings before proceeding with litigation. The courts must always act in the interests of arriving at an amicable resolution of the legal dispute or the individual points at issue. For the purposes of fostering an amicable resolution of the litigation, court hearings are usually preceded by a conciliation hearing unless:

  • efforts to come to an agreement have already been made before an ADR entity; or
  • it is obvious that the conciliation hearing has no chance of success.

In April 2016 the Consumer Dispute Resolution Act implemented the EU ADR Directive (2013/11/EU) into German law. The act created out-of-court dispute settlement bodies, which are available to consumers in the event of disputes with commercial entities. The law sets out requirements in terms of professional competence, impartiality, independence and transparency and regulates the course of a dispute settlement procedure.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

It is difficult to estimate how commonly ADR is used, as the use of ADR methods is determined by the facts and circumstances of the individual case.

Click here to view the full article.