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Getting the Deal Through – Product Liability 2009  

by GianBattista Origoni and Barbara Ferraris

Published: May, 2009

Submission: May, 2009

 



1. The court system


What is the structure of the civil court system?


In Italy there are three levels of courts: first-instance courts (justices of the peace and tribunals); second-instance courts (courts of appeal for judgments rendered by tribunals, and tribunals for judgments rendered by justices of the peace); and the Court of Cassation (Supreme Court).


The justice of the peace courts have jurisdiction over legal actions up to the value of approximately e2,600; damages caused by floating or vehicular traffic up to the value of approximately e16,000; and some specific subject matters. Cases filed with the justice of peace in which the amount claimed is less than e1,100 may be decided ‘according to principles of equity’, which means on a ‘commonsense’ basis. In these cases the justice of the peace may depart from the rules of law, provided that the principles of the legal system are respected.


Tribunals have first-instance jurisdiction over all cases not expressly allocated to other courts and second-instance jurisdiction over decisions issued by the justices of the peace. Courts of appeals have first-instance jurisdiction over some specific matters and second-instance jurisdiction over decisions issued by the tribunals.


The Court of Cassation is at the top of the hierarchy. It is the court of last resort and its task is to ensure the consistent interpretation and application of the law. The Court review is limited to issues regarding the interpretation and correct application of the law, as the Court does not review any assessment of facts made by the judge in the trial.



2. Judges and juries


What is the role of the judge in civil proceeding and what is the role of the jury? Italy relies upon an adversarial judicial system and there are no juries in civil proceedings.



3. Pleadings and timing


What are the basic pleadings filed with the court to institute, prosecute and defend the product liability action and what is the sequence and timing for filing them?


A product liability action is governed by the same rules as are set for ordinary proceedings by the Code of Civil Procedure. A case begins with the plaintiff’s writ of summons, which includes all the claims against the defendants. In the writ the plaintiff must clearly state the type of relief sought (ie, claim for compensation for damages) and the facts and points of law supporting the claim, including the reference to any evidentiary means by which the plaintiff intends to prove the allegations. The defendant’s first pleading must include any defence arguments and means of evidence. At the first hearing, any of the litigants may request a term within which to file defensive briefs aimed at amending the respective claims, defence arguments and requests for evidence. The parties are also entitled to file briefs replying to the opposite party’s allegations. The judge, who is not bound to apply the law indicated by the parties (iura novit curia principle), will then set a date for a hearing, during which the items of evidence requested by the parties and considered relevant and admissible will be gathered. Once this has been done, the parties can file – or discuss orally – their final pleadings and then reply to the final pleadings of the other party.


4. Trials


What is the basic trial structure? Italian civil proceedings can be broadly divided into three phases:


• introductory phase – this is to assess the formal and procedural regularity of the proceedings, with regard to the parties (relevant legal standing and powers), jurisdiction of the court, and all the other procedural issues that may prevent the case from reaching the subsequent phase. The court examines the request for evidence and admits the requests it deems appropriate;


• evidentiary phase – the evidence admitted by the court is gathered, witnesses are examined and experts appointed by the judge render their opinions; and



• decision phase – this includes the evaluation of the collected evidence and of the arguments submitted by the parties. This leads to the final decision. There is no the distinction between pre-trial and trial phases found in the common law system. The same judge presides over all three phases, which are not formally divided; the judge sets the dates for the hearings, checks that there are no procedural flaws, rules on the requests of the parties, appoints experts and conducts and oversees the evidence-taking activities up to the final decision. Only the judge can question witnesses, putting to them questions previously submitted by the parties and accepted by the judge.


 


5. Group actions


Are there class, group or other collective action mechanisms available to product liability claimants? Can such actions be brought by representative bodies? A collective representative action was introduced in Italy with the law approved on 21 December 2007 that, however, is still to be put into effect. As a matter of fact, the availability of the relief was postponed first to 1 January 2009 (by means of Law Decree No. 112 dated 25 June 2008) and then to 1 July 2009 by means of Law Decree No. 207 dated 30 December 2008, in order to amend the current structure.


According to the current provisions, a collective action can be started by ‘duly representative’ consumers’ associations in order to request compensation for damages or reimbursement in favour of consumers in the event of unlawful behaviour damaging a plurality of persons, including product liability.


The action is based on an opt-in system and the decision of the court is not a direct condemnation but rather sets the criteria to be used to calculate the amount to be paid to the consumers or, if possible, establishes the minimum amount to be paid to each consumer. The assessment of individual damages is then referred to a subsequent settlement or litigation.


 


6. Timing


How long does it typically take a product liability action to get to the trial stage and what is the duration of a trial? The average length of a product liability action, and of civil proceedings in general, ranges from one to five years, depending mainly on the evidentiary means offered by the parties and admitted by the court and on the workflow of each individual court. Evidentiary issues and damages


 


7. Pre-trial discovery and disclosure


What is the nature and extent of pre-trial preservation and disclosure of documents and other evidence? Are there any avenues for pre-trial discovery? The Civil Code sets forth the preservation of documents for companies and professionals. No formal US-style discovery exists. Any party can ask the judge to order the filing of specific documents with the court.


 


8. Evidence


How is evidence presented in the courtroom and how is the evidence cross-examined by opposing party? In the Italian civil law system considerable weight is given to written evidence. The basic principle is that oral testimony is allowed in cases where documents are either unavailable or unreliable. Apart from very unusual cases, all evidence must be given verbally at the hearings and written statements are not allowed. When the parties submit their requests for evidence, they must also include a list of people to be called to testify, along with the list of questions to the witnesses. The judge rules on the admissibility of both witnesses and questions. Only witnesses of fact can be admitted and no personal evaluation can be expressed by the witness; it follows that experts cannot be used as witnesses. The parties are not entitled to question the witnesses directly and no formal cross-examination exists: it is only the judge who questions the witnesses, while the parties can suggest questions to the judge.


The parties cannot be witnesses, but upon the request of a party, the adverse party or its legal representative can be summoned for a ‘formal examination’. Formal examination is a kind of evidence – not often used – aimed at achieving a confession. The party can be questioned only by the judge, and only on the questions previously approved by the judge. The party cannot be forced to appear, but if he or she fails to appear or refuses to answer, the judge can consider the facts as admitted. Moreover, the court can order the parties to appear in order to question them informally (‘free examination’). During a free examination the party is not bound to answer, and the statements rendered are not considered as technical evidence. The formal and free examinations are not used often, because the examination is not under oath and a possible lie would not be punished as perjury as the party is not – technically – a witness (principle of ‘privilege against self incrimination’). A party’s ‘oath’ is a sworn statement affirming that one or more of the alleged facts is true. It is taken only upon the request of the opposite party, and the party requested to take the oath may also ask the other party to do the same. The oath, when taken, provides ‘legal’ evidence and conclusive proof of the facts. On the contrary, when the party requested to take the oath refuses to do so or fails to appear, the relevant facts are regarded as established. In practice, oaths are rarely used. Written witness statements are not permitted. The court can rely only upon evidence provided by the parties, and must refrain from personally investigating facts deemed relevant to the case. Nonetheless, the judge is entitled to appoint one or more experts, in order to ground his or her decision in facts or circumstances of general knowledge and to call witnesses referred to by other witnesses during their testimony. The judge may ground his or her findings on certain particular items of evidence and disregard other items, provided that a logical and detailed explanation for this is given in the decision. 


 



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