Change of paradigm about laboratories' liability in case of unwanted pregnancy while on contraceptive drugs
On Mar. 15, 2016, during the trial of the special appeal filed by a pharmaceutical laboratory, the Justices of the Fourth Panel of the Superior Court of Justice decided by unanimous vote that the fact that there is no contraceptive method that "is immune to fails" does not entail an exemption of liability.
During the session, the Justices also stated that the pharmaceutical laboratory failed to meet the burden of proving that the consumer had acted in such a manner as to hamper the efficacy of the contraceptive.
This precedent represents a U-turn on the massive case law of the Superior Court of Justice according to which the lack of absolute efficacy of the drug does not entail compensation.
We should clarify that the attribution of liability based on the expectation of failure and on the consequent risk from the use of a contraceptive drug is significant in view of the impact this change may have on proceedings currently in progress.
As soon as the decision is published by the Superior Court of Justice, the issue will be minutely examined in relation to the consumer protection laws, especially in regard to the effects this precedent represents to the already consolidated case law on the matter.
Demarest's Consumer Law team will monitor the decisions by our Superior Courts on the matter and will keep our clients duly posted on the new developments of this approach.