The German Federal Court (BGH) on the product liability for defective cardiac pacemaker: no need to ascertain a particular defect if a potential defect has been established

BGH, Urteil vom 09.06.2015, VI ZR 284/12

The German Federal Court (Bundesgerichtshof) decided in the present case that the implanted cardiac pacemakers of the insured ”B” and ”W” showed product defects in accordance with Article 3 (1) of the German Product Liability Law and Article 6 of Directive 85/374/EEC. The German Federal Court (Bundesgerichtshof) had in that regard referred to the jurisprudence of the CoJ whereby the CoJ noted that ”Article 6 (1) of Directive 85/374/EEC is to be interpreted as a product, which belongs to a group oder production series of products such as cardiac pacemakers and implant cardioverter defibrillators by which a potential defect is being established, is to be classified as defective without the need to ascertain a particular defect of that same product in question. (Cases C-503/13 and 504/13, NJW 2015, 1163 Boston Scientific Medizintechnik GmbH / AOK Sachsen Anhalt Die Gesundheitskasse, Betriebskrankenkasse RWE)

The main reasoning of the CoJ was that in accordance with Article 6 (1) of Directive 85/374/EEC a product is defective when it does not fulfil the safety measures which a person, under consideration of all circumstances and especially the ones connected with the offer of the product, its use and the time withingwhich it is to be brought on the market, is allowed to expect.

The full text is available on EuroCases

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