Thursday, November 29, 2018, Paris
PIP breast implants case: the Nanterre Court orders TUV to compensate Swedish patients following the decision of the Court of Cassation
By a decision handed down on Thursday 29 November, the Nanterre Regional Court (Tribunal de Grande Instance) ordered the German certifier TUV Rheinland to compensate Swedish victims of PIP implants.
This judgment confirms the hope that is being rekindled for many victims around the world. “We welcome this fifth conviction of TUV in this case,” said Cédric Joachimsmann, manager of PIPA. As a reminder, the Toulon Commercial Court convicted the German company three times in 2013 and 2017, and in Spain a court in Valencia also confirmed its civil liability.
This judgment is an extension of the intervention of PIPA, represented by French lawyer Olivier Aumaître, on behalf nearly 20,000 victims since 2011. The work of PIP recently led the French Supreme Court to open the way to the final conviction of the certifier, in the so-called TUV1 procedure. The PIPA association is delighted that its action since 2011, and that the favourable decisions obtained against TUV, continue to benefit women with PIP implants.
The arguments developed over the past eight years by PIPA now seem to be heard by all French courts, even if the judgments are not delivered at the same pace and in a completely harmonious manner.
While the Nanterre Court ordered TUV to compensate 400 Swedish patients, the terms of the sentence imposed are less favourable to victims than the decisions handed down by the Toulon Commercial Court.
This is due to the fact that this procedure in Nanterre was not followed by PIPA/Olivier AUMAITRE but by another law firm, which did not consult Olivier Aumaître, which is regrettable.
- Although the Nanterre court was seized at the same time as the Toulon court, it rendered its decision in 4 years, against 2 years in Toulon;
- The Nanterre court has capped TUV’s sentence at 80% of part of the damages which have been fixed at 7300 euros as final compensation for each patient; whereas in Toulon, the victims will be entitled after expert appraisal to total compensation for an amount which may be twice as high (for example for anxiety damage, the Nanterre court awarded 1440 euros against 3000 euros in Toulon)
- Above all, the Nanterre judgment does not have provisional enforcement, which means that TUV, which is going to appeal, has no obligation to pay, whereas in Toulon, a provision of 3000 euros, payable immediately was ordered;
These 400 Swedish patients will therefore have to wait until the end of the call (at least 2 years) to hope to receive compensation (even though they have been waiting for 4 years already): while the Swedish patients represented by PIPA have already received 3000 euros in TUV 2 and TUV 3 in Toulon.
The Toulon procedure for which Olivier Aumaitre is in charge is therefore the best option.
“In the context of Implant Files, the confirmation of the responsibility of one of the main notified bodies in Europe reinforces our conviction,” says Cedric Joachimsmann. “Only heavy financial consequences will force medical device companies to self-regulate,” added Mr Aumaître. It is to be hoped that the sums involved will encourage TUV and all certifying bodies to change their practices. With 400,000 women affected and an average estimated compensation of between €10,000 and €20,000, the PIP case could theoretically cost the German group’s insurers nearly €6 billion. This is an incentive for the latter to respect its obligation of vigilance, which was duly reminded by the Supreme Court.
“However, it must be stressed that this compensation route was only made possible thanks to the intervention of private economic actors,” says Olivier Aumaitre. It is indeed the distributors of PIP implants, who are also victims deceived by the TUV certification, who are at the origin of the action against the latter. “If they had not decided to devote their last resources to challenging the German quality assurance giant eight years ago, everything suggests that TUV would have come out of it cheaply,” adds the lawyer from the PIPA association. The situation has now completely shifted in favour of the victims.
This new episode only highlights the need for an European compensation fund for victims of CE-marked medical devices, as we call for in a petition launched several weeks ago. The final condemnation, now almost certain of TUV, makes the creation of such a fund all the more relevant: it could advance the amounts of compensation immediately to the victims, with the serenity of knowing that in the end it will be the responsible entities who will pay and not the taxpayers. “Patients often lack the resources and skills to take appropriate legal action. However, a compensation fund, which act in court on behalf of the victims, would fight on equal terms with the commercial companies that must be implicated,” concludes Mr Aumaître.