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Litigation

Procedure

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

Product liability claims are not regulated by special procedures, but rather follow those set out in the Code of Civil Procedure for all civil law proceedings. To file a product liability claim before the court, the claimant must summon the defendant before the competent court by serving a writ of summons, which includes all the claims alleged against the defendant. After service, the writ of summons must be filed and enrolled with the general register of the relevant court. In addition, claimants that aim to reach an out-of-court settlement may file with the competent court a motion for preliminary technical appraisal proceedings. In these proceedings, the court appoints an expert (eg, a doctor or an engineer, depending on the nature of the technical issued to be assessed) who – after evaluation of all the circumstance of the case – drafts a report containing his or her technical assessment of the case and requests the parties to enter into settlement discussions. This process may end either with the parties reaching a settlement agreement or with the filing of the court-appointed expert’s report, on the basis of which the claimant may commence ordinary proceedings.

Interlocutory motions

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

In product liability cases, as well as other ordinary civil proceedings, the court can issue interlocutory orders and judgments according to the Code of Civil Procedure. Such orders typically address preliminary procedural objections or preliminary objections on the merits (eg, lack of jurisdiction, lack of standing to be sued or expiry of the applicable statute-of-limitation period), which may be successfully raised by the defendant in order to obtain an early dismissal of the claim.

Interlocutory judgments are rarely issued, as the Italian courts often decide the above preliminary objections after the evidence gathering stage, in their final decision.

Pre-trial disclosure

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

There are no pre-trial disclosure/discovery mechanisms in Italy.

Evidence standards

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

In product liability cases, as well as other ordinary civil proceedings, both oral (eg, witnesses) and documentary evidence is accepted. The filing of documents and the request for admission of witnesses must be made within specific procedural deadlines. A list of the proposed questions to the witness must be filed in writing within the term granted to the parties for the filing of their respective briefs on evidence. Subject to compliance with the applicable filing deadlines, documents are in principle always admissible, while oral evidence and other means of proof are subject to a court decision on relevance and admissibility. The court may refuse to hear witnesses if it deems it unnecessary or considers the testimony inadmissible for other reasons. If the court permits witness evidence, the witness is examined by the judge directly – the parties’ advocates make no cross-examination in Italian civil proceedings.

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?

If the parties request or the court considers that the case requires specific technical knowledge, the court may appoint an expert to assess the technical issues underlying the case. The court-appointed expert is chosen from a list of experts available in each court. Where this occurs, the parties can appoint their own experts. The parties’ experts participate in all the technical operations which may be directed by the court-appointed expert or the court. The court sets the timetable for provision of the expert reports and for the parties’ experts to submit any observations on the report of the court-appointed expert. The court-appointed expert’s final report must consider the party-appointed experts’ observations and specify any reasons for disregarding them.

The conclusions drawn by the court-appointed expert in his or her final report are not binding on the court; however, in practice judges often rely greatly on expert reports.

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

To support their claims or defences, the parties may file their own expert’s written opinion or technical reports. These need no authorisation by the judge and are treated as exhibits, which are admitted once they have been filed. However, the documents do not constitute evidence of the circumstances and representations contained therein are considered mere allegations of the party submitting them. Therefore, the reports bear no evidentiary value. In cases where the court-appointed expert is summoned by the judge to provide clarifications on his or her final report, the parties’ experts may also attend the hearing scheduled and express their own comments on the technical issues at hand.

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?

Pursuant to Article 140bis of the Consumer Code, consumers may bring (directly or through a representative body) class actions to protect their collective or individual interests, provided that these interests are homogeneous. Class actions may be brought in order to seek, among other things, redress for the violation of rights arising from product liability. Class actions must be brought before the main regional court where the defendant has its registered office and are heard by a three-judge panel of the civil court. Class action proceedings largely follow the ordinary rules of civil procedure; however, they are characterised by some peculiarities. In particular, after the first hearing, the court rules on the admissibility of the class action, which may be dismissed at this preliminary stage if:

  • the action appears blatantly groundless;
  • there is a conflict of interests;
  • the rights which the lead claimant seeks to uphold are not homogeneous to the entire class; or
  • it appears that the lead claimant cannot adequately protect the interests of the class.

Further, the writ of summons must be served on the public prosecutor, who may express his or her opinion on the admissibility of the action. Italy has adopted an ‘opt-in’ model for class actions. Accordingly, if the class action is deemed to be admissible, the court orders the defendant to publish a notice at its own expense, in order to allow other potential members of the class to opt-in within a certain deadline (which cannot exceed 120 days from the publication of the class action notice).

Class actions afford no specific benefits to claimants – the main advantage of a collective action is to increase the pressure on the defendant and publicity around the issue, which can garner greater leverage in settlement discussions.

Class actions are rare in Italy due to the strict admissibility requirements, which often represent an obstacle for claimants.

Appeals

What rules and procedures govern appeals of court decisions?

First-instance court decisions may be appealed before the second-instance courts (ie, the courts of appeal). Appeal proceedings are aimed at judicial review of the first-instance trial, including a review of the facts of the case. The review is strictly limited to the facts and allegations filed in the first-instance proceedings. Therefore, new claims, objections or evidentiary requests are precluded. Court of appeal decisions can be challenged before the Supreme Court on limited grounds only. These grounds are set out by the law and include:

  • breach of the rules of law on jurisdiction or proper venue;
  • violation or false application of the law;
  • nullity of the challenged decision or proceedings; or
  • failure by the second-instance court to examine a fact of the case that is decisive and has been discussed between the parties in the course of the proceedings.

Accordingly, appeals before the Supreme Court cannot be grounded on the facts or flaws in reasoning in the factual findings.

Statute of limitations

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

The applicable limitation period for product liability claims under the Consumer Code is three years from the date on which the injured party became (or should have reasonably become) aware of:

  • the damage;
  • the product defect; and
  • the identity of the producer.

Further, a 10-year forfeiture period from the date on which the allegedly defective product was put on the market applies to product liability claims under the Consumer Code. If a claim is brought under the national general tort liability regime, the applicable limitation period is five years.

Timeframe

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

The duration of product liability cases varies depending on the size and related workload of the court before which the action is brought, as well as the complexity of the evidence stage of the proceedings (eg, use of court-appointed experts or permissibility of witness evidence). On average, proceedings range between 24 and 48 months.

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?

As a general rule, the Italian civil legal system implements a ‘loser pays’ rule for costs liability. However, the court may order that each party bear its own costs in cases where the claim was unusually complex. Further, where the court applies the ‘loser pays’ rule, the successful party will rarely recover all costs incurred in the proceedings. Fees are calculated pursuant to the parameters set out by a decree on legal costs issued by the Ministry of Justice. These parameters consider the work carried out by the average single-lawyer law firm and do not reflect larger firms’ billing systems. General costs and expenses are determined at 15% of the awarded attorneys’ fees.

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

Italian law prohibits any agreement whereby the solicitor receives a share of the judgment award as payment for his or her work. However, the party and its solicitor may structure a fee agreement to allow for a part of the agreed fees to be paid contingent on the outcome of the suit.

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

Third-party litigation funding is admissible in Italy, although it is underdeveloped and unregulated.

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

In Italy, indigent parties may file an application with the local bar associations to obtain legal aid. Aid is granted provided that the applicant’s annual income falls within the thresholds set by Presidential Decree 115/2002 (as amended) and the claim is not manifestly groundless.

Settlement

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

No specific rules govern the settlement of product liability cases. A settlement agreement may be reached by the parties before or during the proceedings, either organically or by means of alternative dispute resolution (ADR) proceedings. Claimants that aim to reach an out-of-court settlement may file with the competent court a motion for preliminary technical appraisal proceedings. In these proceedings, the court appoints an expert who – after evaluating all the circumstance of the case – drafts a report containing his or her technical assessment of the case and encourages the parties to reach a settlement agreement. This process may end either with the parties reaching a settlement agreement or with the filing of the court-appointed expert’s report, on the basis of which the claimant may commence ordinary proceedings. Alternatively, claimants can apply for assisted negotiation or mediation proceedings (two types of ADR), which the defendant can join. Although participation in ADR is not compulsory, failing or refusing to participate in proceedings can be considered by the court and form the basis for finding the reluctant party liable for an award of aggravated damage due to poor or unreasonable conduct in the proceedings.

How common are settlements in product liability cases?

Settlement is rare in product liability cases. However, as settlements are usually covered by confidentiality clauses, limited information is available to assess the true percentage of product liability claims that are resolved via settlement.

Alternative dispute resolution

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

In some cases, claimants must initiate ADR proceedings before taking action before the courts. This happens in cases regarding, among other things, damages arising from medical and healthcare liability. In such cases, claimants must first pursue either preliminary technical appraisal proceedings or mediation proceedings, both of which aim to reach an amicable settlement of the dispute. In all other cases, even if not required to do so, claimants can opt for ADR proceedings or invite the defendant to attend assisted negotiation proceedings.

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

As the pursuit of pre-trial ADR proceedings is not usually required in relation to product liability cases, ADR is rare for such disputes.

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