Looking at recent decisions of German courts in the field of Product Liability, two themes are worthwhile to discuss:
(1) Foreseeable misuse in connection with the installation of a product
The German Bundesgerichtshof (Federal Supreme Court) recently decided a case in which the plaintiff had installed an electrical water heater on his own that he had bought in a supermarket for construction equipment. Attached to the water heater was a clear description that installation should only be done by qualified personnel and that certain steps had to be taken during the installation that the plaintiff probably ignored. The heater exploded.
The Bundesgerichtshof held that safety of a product is only required as far as instructions for use and installation are observed.
This decision is important for the industry in differentiating cases in which clear instructions are ignored from cases of foreseeable misuse of the product which manufacturers must consider and take care of in the safety design of the product.
(2) Suspected defects of a serial product
Several German courts of the first and second instance had to decide cases concerning the question if and under which circumstances a merely suspected defect of a serial product can lead to liability under sec. 1 para. 1 of the German Produkthaftungsgesetz (Product Liability Law, „ProdHaftG"). Prerequisite of liability is a product defect within the meaning of sec. 3 ProdHaftG. The burden of proof that the product has a defect and that this caused the damage lies with the plaintiff.
But what about cases in which it is well known that a number of products within a series have a defect (while others don't) and the individual product cannot be examined any longer? What if the manufacturer has already ordered a recall because of this situation?
The AG Charlottenburg had to decide about the costs for the surgical removal of a part of a pacemaker which could no longer be examined in the litigation and held that an earlier recall of this type of product alone was not enough to prove a product de-fect. In a similar case, the OLG Frankfurt also denied a claim arguing that the plaintiff could not prove that the pacemaker had been defective.
The OLG Düsseldorf had to decide a case of an implantable defibrillator and held that the risk of a malfunction alone could be a defect of the product because the patients relied on the proper working in life-threatening situation. Upon appeal, the Bundesgerichtshof has forwarded the case to the European Court of Justice to clarify the question whether Art 6 para 1 of the European Product Liability Directive is to be interpreted in the sense that an implanted medical technical product already has a product defect if a certain number of the same series have shown a malfunction while a defect in the individual product cannot be proven.
A personal comment: Let's hope that the European Court of Justice will uphold the principle that the plaintiff must prove that the individual product is defective and will allow exceptions only where the suspicion of a defect is very concrete and cannot be affirmed or contradicted without destroying or removing the product from the human body while a defect would lead to severe damage to life or health.