[et_pb_section fb_built= \u00bb1\u2033 admin_label= \u00bbAbout Section \u00bb _builder_version= \u00bb3.26.3\u2033 background_color= \u00bb#ffffff \u00bb background_color_gradient_direction= \u00bb90deg \u00bb custom_margin= \u00bb160px||90px||false|false \u00bb custom_padding= \u00bb80px||0px ||false|false \u00bb box_shadow_style= \u00bbpreset7\u2033 box_shadow_horizontal= \u00bb1120px \u00bb box_shadow_vertical= \u00bb0px \u00bb box_shadow_color= \u00bbrgba(0,0,0,0.1) \u00bb locked= \u00bboff \u00bb global_colors_info= \u00bb{} \u00bb da_is_popup= \u00bboff \u00bb da_exit_intent= \u00bboff \u00bb da_has_close= \u00bbon \u00bb da_alt_close= \u00bboff \u00bb da_dark_close= \u00bboff \u00bb da_not_modal= \u00bbon \u00bb da_is_singular= \u00bboff \u00bb da_with_loader= \u00bboff \u00bb da_has_shadow= \u00bbon \u00bb da_disable_devices= \u00bboff|off|off \u00bb ][et_pb_row column_structure= \u00bb3_5,2_5\u2033 _builder_version= \u00bb4.14.0\u2033 custom_padding= \u00bb0px|0px|34px|0px|false|false \u00bb hover_enabled= \u00bb0\u2033 global_colors_info= \u00bb{} \u00bb make_equal= \u00bbon \u00bb module_alignment= \u00bbcenter \u00bb sticky_enabled= \u00bb0\u2033][et_pb_column type= \u00bb3_5\u2033 _builder_version= \u00bb3.26.3\u2033 custom_padding= \u00bb50px||| \u00bb custom_padding_tablet= \u00bb0px||| \u00bb custom_padding_phone= \u00bb \u00bb custom_padding_last_edited= \u00bbon|tablet \u00bb global_colors_info= \u00bb{} \u00bb custom_padding__hover= \u00bb||| \u00bb][et_pb_text _builder_version= \u00bb3.27.4\u2033 text_font= \u00bbCormorant Garamond|500||||||| \u00bb text_text_color= \u00bb#5e5e5e \u00bb text_font_size= \u00bb18px \u00bb text_line_height= \u00bb1.9em \u00bb header_font= \u00bb|||||||| \u00bb header_2_font= \u00bbPlayfair Display SC|||||||| \u00bb header_2_font_size= \u00bb40px \u00bb header_2_line_height= \u00bb1.3em \u00bb header_3_font= \u00bbPoppins|700||on||||| \u00bb header_3_text_align= \u00bbjustify \u00bb header_3_text_color= \u00bb#b51212\u2033 header_3_font_size= \u00bb20px \u00bb header_3_letter_spacing= \u00bb5px \u00bb header_3_line_height= \u00bb1.3em \u00bb header_4_font= \u00bb|||||||| \u00bb header_6_font= \u00bb|||||||| \u00bb text_orientation= \u00bbjustify \u00bb max_width_last_edited= \u00bboff|desktop \u00bb module_alignment= \u00bbcenter \u00bb custom_margin= \u00bb||||false|false \u00bb custom_padding= \u00bb0px||||false|false \u00bb animation_style= \u00bbfade \u00bb text_font_size_tablet= \u00bb \u00bb text_font_size_phone= \u00bb \u00bb text_font_size_last_edited= \u00bbon|desktop \u00bb header_2_font_size_tablet= \u00bb35px \u00bb header_2_font_size_phone= \u00bb25px \u00bb header_2_font_size_last_edited= \u00bbon|desktop \u00bb header_3_text_align_tablet= \u00bbleft \u00bb header_3_text_align_phone= \u00bbleft \u00bb header_3 _text_align_last_edited= \u00bbon|desktop \u00bb header_3_font_size_tablet= \u00bb18px \u00bb header_3_font_size_phone= \u00bb15px \u00bb header_3_font_size_last_edited= \u00bbon|desktop \u00bb header_2_text_shadow_style= \u00bbpreset2\u2033 text_text_align= \u00bbjustify \u00bb global_colors_info= \u00bb{} \u00bb]<\/p>\n
The system of proof: the Court of Cassation rules Diethylstilbestrol (DES) is a synthetic diphenol with very potent oestrogenic properties. Mrs B. appealed against the Court of Appeal's decision, and the Court of Cassation was called upon to rule on this case and to refine its position on the evidential regime applicable in this matter.<\/span> [\/et_pb_text][\/et_pb_column][et_pb_column type= \u00bb2_5\u2033 _builder_version= \u00bb3.26.3\u2033 custom_padding= \u00bb||| \u00bb global_colors_info= \u00bb{} \u00bb custom_padding__hover= \u00bb||| \u00bb][et_pb_text _builder_version= \u00bb4.14.0\u2033 _module_preset= \u00bbdefault \u00bb hover_enabled= \u00bb0\u2033 sticky_enabled= \u00bb0\u2033]<\/p>\n Master Zakine wrote a thesis on REACH compounds<\/a> She holds a Master's degree in private law and a D.E.S.S. in European and international law. She is a lecturer at the University of Nice, a lawyer at Antibes and employment law<\/a>real estate and construction.<\/p>\n [\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>","protected":false},"excerpt":{"rendered":" The fight has continued since the start of the distilbene affair The regime of proof: the Court of Cassation rules From the judgment rendered by the first civil chamber of the Court of Cassation of June 19, 2019 (FS-P+ B, n\u00b0 18-10.380) Diethylstilbestrol (DES) is a synthetic diphenol with estrogenic properties [\u2026]<\/p>","protected":false},"author":1,"featured_media":12,"parent":0,"menu_order":314,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"class_list":["post-501","page","type-page","status-publish","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/pages\/501","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/comments?post=501"}],"version-history":[{"count":0,"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/pages\/501\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/media\/12"}],"wp:attachment":[{"href":"https:\/\/www.cecile-zakine.fr\/en\/wp-json\/wp\/v2\/media?parent=501"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n<\/b>Based on the decision of the First Civil Chamber of the Court of Cassation of 19 June 2019 (FS-P+B, n\u00b0 18-10.380)
\n<\/span><\/p>\n
\nThis molecule was synthesised in the United Kingdom in 1938 and was marketed in several countries, including France, under the name of Distilbene, or Stilboestrol, which was prescribed by doctors to \"help\" women who were suffering repeated miscarriages or who were threatened with premature delivery.
\nAdministered in France between 1955 and 1977, Distilbene was the cause of numerous genital anomalies, a high risk of uterine cancer and sterility in children exposed in utero.
\nThis drug has continued and will continue to cause harm to \"distilbene children\" for three generations.
\nIn this case, Ms B. had a malformation in her uterus which was related to her in utero exposure to distilbene.
\nHowever, she managed to complete her pregnancy after undergoing various operations on her uterus, nine miscarriages and two in vitro fertilisations.
\nMrs B. then decided to sue for liability and damages against the compensation one<\/a> of the molecule's producers, UCB Pharma, which subsequently implicated Novartis Sant\u00e9 familiale, which also marketed the disputed product.
\nTo do so, the plaintiff relied on Article 1240 of the Civil Code (formerly Article 1382 of the Civil Code), the basis for tort liability, to bring her action and claim compensation.
\nThe system of liability for defective products - which is more favourable to the victims of defective products and which includes pharmaceutical products - stemming from Law No. 98-389 of 19 May 1998 on defective products, itself stemming from the transposition of Council Directive 85\/374\/EEC of 25 July 1985 on liability for defective products, could not be applied because of the date distilbene was placed on the market.
\nThus, the Versailles Court of Appeal, in a decision dated 23 November 2017, dismissed Ms B.'s claims on the grounds that the proof of exposure to distilbene on the one hand and the proof of the causal link between the malformation of her uterus and the in utero exposure to distilbene on the other hand, were not established with certainty.
\nIn its decision, the Court of Appeal stated:
\nThe Court stated that \"even if we consider that these elements constitute prima facie evidence, they must be corroborated by other clues, drawn from the pathologies presented, which may constitute serious, concordant and precise presumptions both of exposure and of the imputability of the damage to this exposure, but that, in order to fulfil this probative role, the pathologies presented must have no other possible cause than in utero exposure to DES\".
\nIn other words, in order to win her case, the plaintiff had to prove not only in utero exposure to DES but also the causal link between the in utero exposure and the damage suffered as a result of the malformation of her uterus.
\nThe trial judges also required the victims to provide proof that the exposure to distilbene was unique and exclusive of any exposure to another agent. [\/et_pb_text][et_pb_image src= \u00bbhttps:\/\/www.cecile-zakine.fr\/wp-content\/uploads\/2021\/12\/affaires-du-distilbene-800.jpg \u00bb _builder_version= \u00bb4.14.0\u2033 _module_preset= \u00bbdefault \u00bb alt= \u00bbdistilbene affair \u00bb title_text= \u00bbdistilbene-affair-800\u2033 hover_enabled= \u00bb0\u2033 sticky_enabled= \u00bb0\u2033][\/et_pb_image][et_pb_text _builder_version= \u00bb3.27.4\u2033 text_font= \u00bbCormorant Garamond |||||||| \u00bb text_text_color= \u00bb#ffffff \u00bb text_font_size= \u00bb18px \u00bb text_line_height= \u00bb1.9em \u00bb text_orientation= \u00bbjustify \u00bb hover_enabled= \u00bb0\u2033 text_text_align= \u00bbjustify \u00bb global_colors_info= \u00bb{} \u00bb sticky_enabled= \u00bb0\u2033]<\/p>\n
As a reminder, other women who had initiated similar liability actions had faced difficulties in obtaining proof of in utero exposure to DES, as the only possible proof would have been to produce in court their mothers' prescriptions or testimonies.<\/span>
This is why the Court of Cassation has always shown a certain flexibility in previous cases.<\/span>
In order to establish the causal link, the judges of the High Court either considered that exposure to DES was simply presumed (Civ. 1re, 24 Sept. 2009, No. 08-16.305 and 28 Jan. 2010, No. 08-18.837), or required proof of exposure to DES, even though multifactorial exposure might be present (Civ. 1re, 24 Sept. 2009, No. 08-16.305 and 28 Jan. 2010, No. 08-18.837).<\/span>
In this case, by its judgment of 19 June 2019, the Court of Cassation reiterates the principles arising from the burden of proof in matters of tort but goes even further by refining its position, as follows:<\/span>
\"If it is not established that DES is the only possible cause of the pathologies presented, the proof of an in utero exposure to this molecule and then that of the imputability of the damage to this exposure can be brought by any means, and in particular by serious, precise and concordant presumptions, without it being required that the pathologies have been exclusively caused by this exposure.<\/span>
On reading this opinion, it is clear that the Court of Cassation sanctioned the Court of Appeal for requiring the plaintiff to prove that exposure to DES was the sole cause of the damage.<\/span>
Indeed, this requirement obviously leads to the failure of victims' actions who cannot prove with certainty the absence of a multifactorial exposure.<\/span>
The Court of Cassation has finally censured the trial judges in order to alleviate the struggle of distilbene victims.<\/span>
However, although the position of the Court of Cassation seems to be in line with the struggle of these women who were victims of distilbene due to in utero exposure, it does not mean that it has finally been won.<\/span>
Before the Court of Cassation rules, the system of proof will first be assessed by the trial courts, which will decide whether or not to award compensation for the liability claims against the producer of distilbene.<\/span>
Will the trial judges then follow the latest position of the Cour de cassation and no longer require proof of single exposure to distilbene?<\/span>
It remains to be seen how the judgment of 19 June 2019 will be taken into account by trial judges in assessing the evidentiary regime for distilbene exposure disputes.<\/span>
If there is a risk linked to the use of chemical substances, pesticides or medicines, it is advisable to be well advised on the liability and proof regime applicable under French and European law. <\/span><\/p>\n