French Minister of Health Marisol Touraine has recently proposed a new National Health Bill that, among other sweeping changes, would extend the availability of class actions to claims involving injuries to health. Companies that might be targeted by such claims are well advised not only to learn about this new law, but to become engaged in this policy debate.
In March 2014, France adopted a new Consumer Law, which includes a class action procedure that is limited to consumer protection and antitrust claims. The proce- dure is only available for recovering material damages and cannot be used for claims based on damages to one’s health. The law takes effect on October 1, 2014.
At the time of adoption, however, the government stated that it will review the new law within 30 months to determine whether to extend the model to health and environmental claims. Min. Touraine has accelerated this plan by inserting a variation of the class action procedure found in the new Consumer Law into her proposed National Health Bill.
- Scope: The scope of the proposed health class action is quite broad. It would allow patient associations to seek redress for personal injuries caused by specific health products listed in Article L. 5311-1 of the Code of Public Health. Potential defendants would include the manufacturers and suppliers of these products, if the injury is caused by a defect in those products, or health professionals, if the injury is caused by the professional’s negligent use of those products.
The list of products in Article L. 5311-1 is extensive and includes: all manner of drugs, contraceptives, medical devices, diagnostic tests, blood and cellular products, organs and tissues, compounded products, therapeutic products, oils and herbal medicines, certain disinfectants, contact lenses and non-corrective lenses, cosmetic products, breast milk conserved by milk banks, insecticides, certain micro-organisms and toxins, tattooing products, and even software used in medical laboratories.
- Standing: The delegation of standing to patient associations differs from the Consumer Law, which permits only those consumer associations that are officially recognized as representative on a national level. Presently, there are 15 such consumer associations. In contrast, the National Health Bill would allow even local patient groups to file a claim.
- Jurisdiction/Venue: Whereas the Consumer Law only permitted class actions in civil courts, the National Health Bill would permit them in either civil or adminis- trative court, depending on the defendant.
- Decision on Liability + Certification: Like the Consumer Law, in the first phase, the patient association files a claim based on several exemplary individual cases. The civil court then decides the defendant’s general liability toward the class based on these exemplary cases. Unlike the Consumer Law, however, there is no requirement for the court to examine whether the claim may be admitted as a class action and no certification criteria for that analysis aside from the presence of a similar or identical issue. The court defines the class and the claims to be compensated. The defendant may appeal this decision immediately.
- Opt-in to Enforce: In the second phase, once the appeals are exhausted, notice is provided to the absent class members as defined in the judgment, who are given between two months and two years to join the case and enforce their claim (the Consumer Law limits the opt-in period to six months). The court sets the terms and conditions for opting in and may appoint an expert to assess the individual’s membership in the class, including an assessment of causation. The opt-in period is suspended until the expert’s report is filed.
The use of the expert appears to be an effort to sidestep the likely predomi- nance of individual issues in health claims and related manageability challenges. Moreover, depending on the weight given to the expert’s report, this may result in a shifting of the burden to the defendant to counter the expert’s conclusions regarding the claims of the individual class members.
- Simplified Procedure: If the necessary information about the impacted class of consumers is clearly identifiable (i.e., their names, the number in the class, the total damages suffered) and the damages are “identical or similar,” then the judge has the authority to order the defendant to compensate each of the consumers directly and individually.
The draft Heath Bill is currently under review by the Council of State. The Council of Ministers may consider it during fall 2014, and it could be examined in Parliament by early 2015.