Pharmaceutical Product Liability in Europe Is increasingly mass
torts litigation involving claims brought in the courts of many
different Member States But few European countries provide suitable
procedural tools to effectively manage mass torts So safety of
products increasingly regulated by harmonised national laws or at
EU level are subject to diverse litigation systems
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Collective action Traditionally, collective action not
available There has been a move across Europe to increase group and
class action procedures
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Facilitating collective action The move towards facilitating
collective action has taken place on two levels: EU National level
of Member States
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Facilitating collective action at the EU level Legal Aid
Directive 2002/8/EC
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Facilitating collective action at the EU level The Brussels
Regulation (Council Regulation 44/2001) Art. 5 No 3: Special
jurisdiction: Place the harmful event occurred or may occur
Alternatively: Art. 2: General jurisdiction: Domicile in Member
State
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Facilitating collective action at the EU level No forum non
conveniens: Owusu v Jackson and others (Case C-281/02) X
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Facilitating collective action at the EU level Recent
developments European Commission Study on " alter- native means of
consumer redress other than individual redress " Background
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Facilitating collective action at the national level Mechanisms
for group litigation are at various levels of development
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Facilitating collective action at the national level Presently,
there are broadly two models of class action style procedures
available: Permitting certain representative organisations to bring
a single claim on behalf of a group of individuals or for the
benefit of the public at large ("representative actions")
Representation of a specifically defined group of individuals using
the concept of a "lead case" or procedural management tools in the
form of "group litigation orders"
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National measures - United Kingdom - 1998 Group Litigation
Order enabling co- ordinated management of individual actions
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National measures - Spain - 2001 New Civil Procedural Act -
Consumer Associations can bring collective actions
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National measures - Sweden - 2003 Act on Class Actions
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National measures - Ireland - 2003 Consultation Paper on
Multiparty Litigation
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National measures - Italy - 2004 Bill amending Consumer
Protection Act
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National measures - The Netherlands - 2005 New Law on
Collective Settlement of Damage Claims
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National measures - France - 2005 Task force working on a
proposal adopting class actions for consumer claims
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National measures - Finland - 2005 Proposals being discussed,
including General Act on Class Actions
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National measures - Germany - 2005 Law on the Introduction of
Investor Representative Proceedings
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Implications for Global Pharmaceutical Companies Increased
Product Liability risks in Europe Cross-fertilisation Competition
of national systems for collective actions / forum shopping Pan
European litigation strategy and management essential
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US Discovery In Support of Non-US Proceedings Letters Rogatory
Hague Evidence Convention Section 1782 US Federal license to go
fishing?
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Section 1782 Applications The tribunal or any interested person
can apply directly to US Federal court In support of a proceeding
before a foreign or international tribunal From a person who
resides or is found in the District US style discovery
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Factors To Be Considered By Court (Intel) Aims of Section 1782
Whether person is a participant in foreign proceeding Receptivity
of foreign court Whether 1782 is being used to circumvent
restrictions on discovery in foreign proceeding Whether discovery
sought is unduly intrusive or broad
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Extraterritorial Application of 1782? Documents located outside
the US Documents in custody of affiliates located outside the US
Depositions of non-US residents
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Advice For US Company Opposing 1782 Obtain objection from
foreign tribunal Intervene to oppose discovery of non-parties Argue
Intel factors Argue privileges and confidentiality Seek limitations
and obtain quid pro quo
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Advice For Non-US Company Sued Outside US By US Residents Seek
1782 discovery from US plaintiffs Seek 1782 discovery from
non-parties located in the US Seek 1782 discovery from non-US
persons visiting the US