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Lack of scientific debate before the French courts: current main disadvantage for companies’ defense

Companies doing business in France are currently facing a detrimental paradox: while the precautionary principle, which is supposed to be triggered by scientific evidence, is increasingly used against them, scientific debate has disappeared before the French courts as line of defense.

This is mainly due to the fact that product liability law in France has shifted these past couple of years from a traditional compensatory function to a greatly punitive logic and a preventive system. As such, the causal link has been diluted. Indeed, French courts tend to be increasingly satisfied with very weak causal links. The result is that manufacturers have been found liable even when there is no scientific certainty of a link between a substance and alleged damage.

Presumptions: companies' worst enemy

Following recent sanitary scandals, which have affected the French health and environmental sector, the French Government and domestic courts have tried to ease the compensation process of plaintiffs. The consequence is that, today, scientific uncertainty acts exclusively in favor of plaintiffs. A couple of examples can be developed in this respect.

Firstly, the courts are significantly assisted by the authorities on the issue of the causal link. Indeed, the recognition of an employer's gross negligence because the latter used a substance in its manufacturing process is made easier by the fact that the Government has decided to create lists of illnesses considered to be linked to such a substance.

As soon as the Government decides that there is sufficient evidence of a link between a substance and an illness, courts no longer have to analyze the issue in question in each single case brought before them. Indeed, they will only need to refer to the Government's lists. These lists create a presumption of causal link and even a presumption of breach by the company of its safety obligation. The mere fact that an illness has been developed triggers liability and courts will almost always ignore the fact that protective measures were implemented and that the manufacturer complied with the law applicable at the time. The legality of a substance is no longer a successful line of defense.

This is why plaintiffs have intensified their lobbying in this respect, knowing that their case would have very high chances of succeeding. The recognition by the French Government that lung cancers are asbestos-related illnesses is a good example. Courts will refuse to take into account the fact that the plaintiff who developed a lung cancer smoked, even heavily: this is not an acceptable line of defense under French case law.

The problem is that companies are not part of the scientific debate leading to the "listing" of an illness by the Government. They often discover that the Government carried out research only once the illness is already listed and it is too late to react. This is what happened with the listing of Parkinson's as a pesticide-related illness in 2012. Since this listing, as soon as someone can prove that he/she used a pesticide for at least 10 years (with no quantity or direct use requirements – environmental exposure is sufficient), he/she can automatically link his/her Parkinson's disease, which he/she unfortunately developed, to pesticide manufacturers albeit the fact that even the French association of Parkinson's victims openly states on the homepage of its website that "the causes of Parkinson's are still unknown".

Even worse: in some cases where illnesses are not identified as being substance-related by the Government, French courts have condemned companies. This is the case, for instance, of Hepatitis B or electromagnetic waves. In the latter case, some courts have ordered relay masts to be dismantled, even in the absence of any scientific evidence that the electromagnetic waves may trigger illnesses.

What's more, this evolution initiated by case law is not limited to cases where plaintiffs have developed an illness.

Indeed, since 2008, new actions have appeared whereby former employees claim damages for their anxiety of developing an illness in the future. By judgments dated May 11, 2010, the French Supreme Court decided to award compensation to employees who alleged having been exposed to asbestos on the ground that anxiety was caused by the fact that the employees "were, due to their employer, in a situation of permanent concern in light of the risk of development of an asbestos-related disease at any time" and that they had to "undergo regular controls and examinations that reactivate this anxiety".

After a number of other judgments, the Supreme Court ruled that plaintiffs and companies should consider that there is a presumption of breach by the company of its safety obligation, a presumption of causal link and a presumption of anxiety. With respect to the latter issue, the Supreme Court even ruled that plaintiffs do not have to prove that they are anxious and that no medical record has to be filed. In other words, the mere fact that the plaintiffs' Counsel states in court that his/her clients are anxious is sufficient medical evidence. Case law relating to anxiety does not even mention the causal link criterion anymore. The presumptions' regime introduced by the Supreme Court has made this fundamental legal requirement disappear. Worse still, some courts even imply that there is no need to provide evidence of a fault.

This may explain why plaintiffs are trying to extend the anxiety case law relating to asbestos exposure to the exposure to other substances.

Legal and court systems which have proven to be inappropriate

The disappearance of a true scientific debate can be explained by the fact that both the legal and court systems have not evolved with the rise and sophistication of product liability, toxic tort and environmental liability claims.

For instance, the Government only works with a limited number of selected scientists who are, for most, directly or indirectly associated with victims' associations or environmental protection associations.

Another example is that companies are not invited to participate in the medical examination of a person who claims to have developed an illness because of the said companies. They are not even allowed to receive the medical record of the plaintiff. The only possibility for the company to access this file is for a court to allow court-controlled expert operations to take place in the scope of a liability claim, which they only allow reluctantly.

In addition, most French proceedings do not accept testimonies. In other words, courts will not get the opportunity to listen to, and question, experts. Companies are, therefore, limited to filing an expert's written affidavit. The plaintiff will do the same. Courts tend to ignore these as they are always of contradictory opinions. Courts rather put aside the medical and scientific debate, hiding behind the presumptions of liability and the precautionary principle.

For instance, the Lyon Civil Court, in a judgment dated February 13, 2012 relating to pesticides, ruled that there was a link between the pesticide at stake and the farmer's health in light, notably, of medical expert operations, which did not follow the adversarial principle, and were criticized by the manufacturer insofar as they had not included any study enabling to determine the minimum inhalation level necessary to result in the problems shown by the plaintiff.

Moreover, the Lyon Civil Court considered that the manufacturer had breached its contractual obligations by selling a dangerous product with a label that did not show the necessary precautions to be taken when using it. It is noteworthy that the label had been approved by the administration, as had the introduction of said product on the market. It appears that companies cannot avail themselves of the authorizations they have obtained in compliance with regulatory obligations. One can see, through this reasoning, the application of the precautionary principle.

A scientific debate increasingly controlled by the media

The French Government and domestic courts also tend to increasingly rely on media coverage to determine whether or not there is scientific certainty, which should result in a presumption of causal link.

As mentioned above, French authorities have been accused of a number of sanitary issues for not banning a number of substances earlier (e.g. asbestos) or for granting authorizations to place some products and substances on the market which were then linked to illnesses (e.g. pesticides or drugs). Some of these sanitary issues led to scandals with officials being replaced and even indicted.

The result is that now, as soon as the media links a substance/product to an illness, the authorities tend to take immediate measures on the ground of the precautionary principle.

Looking back at asbestos, pesticides and electromagnetic waves-related case law, one can understand this phenomenon. Indeed, courts expressly refer to scientific findings published in the media as the starting point for manufacturers to know that a substance could and will be at the origin of a health or environmental issue. In the same line, the recent media coverage around diesel particles and car emissions issues did not stay without consequences. A complaint has been filed in May 2017 against the French State by a plaintiff on the ground, notably, that she would have developed asthma because of pollution. The plaintiff's Counsel publicly announced that he will file tens of similar claims soon. The authorities have in parallel announced a number of measures to impose new limits on the automotive industry.

How to turn around the wheel of fate?

Real and fair scientific debate needs to be reintroduced into the French legal system, at the law drafting stage and before courts or manufacturers will totally lose their opportunity to defend themselves in future product liability and toxic tort claims. This has become even more of an emergency as class actions have and are being introduced into French law and given that the plaintiffs' Bar is getting increasingly powerful.

This starts with making publicly available the scientific data collected by manufacturers, which show that there is still scientific uncertainty around the effects of substances and products. Their experts should start participating in media debates to give a voice to manufacturers. This, however, means that the compensation of these experts by companies has to be addressed as this is often the argument used to try to challenge their credibility.

There is also a need to pressure the French Government to comply with the rules surrounding the application of the precautionary principle. It should apply only if there is a proven scientific concern and only temporarily. The precautionary principle must no longer be used to justify the enactment of definitive bans or controlled use.

Finally, a reform of French proceedings should be discussed in order to allow experts to testify in the scope of civil litigation.