Court of Cassation Ruling on Causal Link in Medication Damage

Extract

[...] The establishment in question is that of 'the direct cause' of the damage (in this case, cancer) suffered by the victim (Mrs. Y). According to Arnaud Lecourt, the causal link can be defined as link of cause and effect between a fact generating damage and the damage itself'.1 This is a notion that is not defined by the legislator, but whose contours and criteria for appreciation have been defined by the jurisprudence. Thus, before the commented judgment, we already know that the direct character of the causal link is decisive in the search for the courtroom. [...]

[...] Without this causal link, the cassation judge would not have censured the decision. Indeed, when comparing this decision with another rendered on the same day by the same civil chamber, this observation is verified. In fact, the situation of each of the respective applicants for each of the two cases was similar, with one 'detail' being different. In the other case (Civ September 2009, n° 08-10.081), the Versailles Court of Appeal had considered that the proof of exposure to 'DES' was not provided. [...]

[...] Indeed, even without knowing whether it is one or the other of the two companies to which the damage can be attributed, the proof being so complex to provide for the victim, the Court has operated a reversal of the burden of proof. It is ultimately the application of the theory of equivalence of conditions. This presumption of causality has the effect, according to the judge, of reversing the burden of proof. However, this reversal was possible because the victim was exposed to the medication. [...]

[...] ) there was no causal link'. In the judgment submitted to our study, this is less explicit, but well present by the few words 'after having established that' since the Court of Cassation does not come to invalidate or confirm this causal link, it simply takes up this establishment. However, it will be decisive in resolving the dispute. B. The establishment of the direct link by the judges of fact, a decisive element of the cassation The finding of a direct link raised by the Court of Cassation demonstrates that the direct link is a prerequisite for the compensation of damage. [...]

[...] The judges had to answer the question of who must bring the proof of the causal link? On September the Court of Cassation quashed and annulled the judgment of the judges of the fact, as they would have violated articles 1382 and 1315 of the Civil Code, since it had 'found that the DES had indeed been the direct cause direct of the tumor pathology'. In addition, since 'Mrs. Y . had been exposed in utero to the disputed molecule', it was up to each of the companies to 'prove that their product was not the origin of the damage'. [...]