Jurisdiction of the Pre-Trial Judge to order an expert report in the context of a group action

A group action was brought by a user association against Laboratoire BAYER HEALTHCARE for a health product defect. As part of the proceedings, the juge de la mise en état, appointed as part of the action on the merits, ordered an expert opinion. An appeal was lodged against this decision by the laboratory, which considered that it represented an excess of power on the part of the Pre-Trial Judge.   In a judgment of 2 May 2024, handed down by the 2nd Civil Chamber of the Court of Cassation, no. 22-10.480, the high court declared the appeal inadmissible. The Court provided a detailed response to the arguments put forward by the laboratory, after recalling the procedural aspects of a group action. The Court recalled that Article L. 1143-2 of the Public Health Code provides that an approved health system users’ association may take legal action to obtain compensation for individual losses suffered by health system users placed in a similar or identical situation and having as their common cause a breach by a producer or supplier of one of the products mentioned in II of Article L. 5311-1 or a service provider using one of these products of their legal or contractual obligations. The action may only relate to compensation for harm resulting from bodily injury suffered by users of the healthcare system. In such a case, the court will find in the same decision that the conditions set out in article L. 1143-2 have been met and will rule on the defendant’s liability in the light of the individual cases presented by the claimant association. The judge will have to define the group of users of the healthcare system in respect of whom the defendant’s liability is engaged and will set the criteria for inclusion in the group. The court will determine the bodily injury likely to be compensated for the users making up the group it defines. Within this framework, the judge hearing the claim will be able to order any investigative measure, including medical expertise. The decision will then set the deadlines within which users of the healthcare system who meet the membership criteria and wish to avail themselves of the judgment may join the group and obtain compensation. The Cour de cassation thus reiterates the specific nature of such a procedure, which takes place in two phases: the first phase, detailed above, aims for the judge to ensure that the action is admissible, as well as to establish the liability of the producer, supplier or user of the health product, and to define the criteria enabling users to join the group action. The second phase is marked by the compensation of the harm suffered by the victims from those responsible, a phase that will regain its aspect of individuality, with each victim suffering his or her own harm. By virtue of articles 848 and 849-2 of the Code of Civil Procedure, the group action is brought, investigated and judged in accordance with the rules applicable to ordinary written procedure. In matters of written procedure, the High Court points out that when an action on the merits is brought before the court, it is up to the president, pursuant to article 779 of the Code of Civil Procedure, to refer cases that are not ready to be heard to the pre-trial judge, who, according to article 789, 4°, of the same code, has sole jurisdiction, when the claim is brought after his appointment, to order any investigative measure. Since group actions are governed by the same procedural rules as any other written procedure,this means that if an action is brought on the merits and the Pre-Trial Judge is appointed, the Pre-Trial Judge has jurisdiction, in the first phase of the group action, to order an investigative measure.

However, at this stage, this investigative measure should only be limited to technical points likely to enlighten the trial judge on questions relating to the liability of the producer, supplier or service provider using the health product, the definition of the criteria enabling users to join the group action, and the damages likely to be compensated. The Court of Cassation thus dismissed the claim for ultra vires and declared the appeal lodged by the laboratory inadmissible, holding that the First President of the Court of Appeal, after recalling the provisions relating to class actions and analysing the terms of reference of the expert assessment ordered, said assessment was intended to enlighten the court hearing the case on the merits on the limited elements, within the limits of the jurisdiction of the trial judge hearing a class action. The Pre-Trial Judge therefore has jurisdiction to order such a measure. This is a fine judgment, the reasoning of which makes it easy to understand and agree with the decision.