Product Liability Litigation in the US and Europe: Diverging Procedure and Damage Awards
| Published date | 01 December 1996 |
| Author | Rod Hunter,Lucas Bergkamp |
| Date | 01 December 1996 |
| DOI | 10.1177/1023263X9600300405 |
| Subject Matter | Article |
Lucas
Bergkamp
*
Rod
Hunter
**
Product
Liability
Litigation
in
the
US
and
Europe:
Diverging
Procedure
and
Damage
Awards
1
§1.
Introduction
Among European lawyers and the public at large, the US product liability system is
thought of as a lottery awarding, more or less at random, huge awards to the lucky
ones. Cases like the McDonalds' hot coffee litigation (a woman, having suffered burns
from spilling coffee over her legs while driving with the cup between her legs, was
awarded several million dollars in damages from McDonalds for its selling of excessive-
ly hot coffee) make the front pages of European newspapers. Critics of the US product
liability system refer to these notorious cases in arguing that US product liability law
has gone astray. One thing is clear, significant awards and a large number of claims
have turned the US product liability system into a multi-billion dollar industry.
This article examines aspects of US product liability litigation that have received rela-
tively little attention in Europe. While most literature on the subject focuses on substan-
tive law, this article addresses striking differences between US and European civil
procedure, and diverging rules on evidence, compensable damages and damage awards.
In doing so, this article explores causes of the relatively high level of litigation in the
US and the sometimes extraordinary results of US product liability litigation, and thus
*
**
Dr. Bergkamp, who is both a medical doctor and practising lawyer, studied law at the University of
Amsterdam, and at Yale Law School. He practised law in Washington D.C. in 1989 and 1990, and
has been associated with Hunton &Williams in Brussels since 1990.
Mr. Hunter, who received his legal education in the U.S. (University of Virginia, J.D.), has practised
in Brussels with Hunton &Williams since 1989. During 1986-87 he served as Judicial Clerk to Judge
Boyce Martin, U.S. Sixth Circuit Court of Appeals, and in 1988 as Associate to Sir Anthony Mason,
Chief Justice of Australia.
The authors gratefully acknowledge the insightful assistance of Professor Dr. H.C. Taschner, of the
University of Saarbriicken, who commented on earlier drafts of this article. Professor Michael G.
Faure and Professor Ton Hartlief also provided thoughtful comments. The authors are of course solely
responsible for the contents of this article.
MJ 3 (1996) 399
IProduct Liability Litigation in the US and Europe
suggests that the basic reason for the wide trans-Atlantic differences lies in these essen-
tially procedural differences.
The first part of this article surveys differences between the US and European litigation
systems. The second part examines in more detail the procedural and other features of
the US system. The procedural, evidentiary and related imnerfections of the US system
are contrasted with the European system. In addition to the enormous damage awards,
high litigation and indirect cost, this part addresses the unintended side effects of dis-
covery, admissibility of unsound scientific evidence, pitfalls of decision-making by
juries, and the impossibility of proving absence of defect and causation (all
of
which
may influence application of concepts of 'defect' and 'causation' to sets of specific
facts).
It
explores how these features of the US liability system may help explain the
liability crisis. The third part deals with selected substantive law issues, including
evidence. The fourth part sets forth the conclusions.
§2. Summary of Differences between U.S. and European Product Liabi-
lity Litigation
By way of introduction, this part highlights some of the most salient differences between
the two systems. The U.S. litigation system is very different from the civil law liability
systems common in continental Europe. These differences are by no means unique to
product liability, but the contrasts are often most stark in this context.
The relevant U.S./European product liability differences relate mostly to procedural
rules and, to a much lesser extent, substantive law. As to the procedural differences,
US civil procedure provides plaintiffs with ample opportunity to obtain documents from
defendants through 'discovery'. 2The process
of
discovery permits plaintiffs to obtain
copies of any documents 'or other tangible things' that are in the defendant's possession.
Even documents and information that will be inadmissible at the trial may be subject to
discovery. 3In civil law systems, discovery is an entirely foreign concept. Courts, not
parties, have primary responsibility for fact-gathering and eliciting evidence. If a defen-
dant in product liability litigation does not submit documents that the court has identified
as relevant or if he does not provide enough information for the plaintiff to go forward
with his furnishing of proof, a civil law court, under well-defined conditions, may
effectively shift the burden of proof to the defendant. The defendant will then have a
strong incentive to produce documents that support his position, since he will lose if he
is not able to prove his case.
2. In civil law systems, the court has a much greater responsibility for fact-gathering. See J. Langbein,
'The German Advantage in Civil Procedure', 52 University
of
Chicago Law Review (1995), 823.
3. The only limitation is that 'the information appears reasonably calculated to lead to the discovery of
admissible evidence' , Federal Rules of Civil Procedure, Rule 26.
400 MJ 3 (1996)
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