On July 2nd, 2015, the Aix-en-Provence Court of appeal published its judgment on the appeal lodged by the notified body, TÜV Rheinland (TÜV), regarding the decision rendered against it by the Commercial Court of Toulon on November 13th. The decision by the Appeals court reverses the prior decision, which was in favour of the hundreds of thousands of victims of PIP’s implants.
Unfortunately, this decision by the Court of Appeals exempts TÜV from any liability regarding the fraud committed by the company Poly Implant Prothèses SA. The decision considers that TÜV was not guilty of any fault within the framework of its quality control mission. Moreover, the decision considers that TÜV had no obligation to conduct unexpected visits to either PIP’s premises or to the NUSIL manufacturer. The Court of Appeals then goes on to peremptorily assert that even if these visits had been conducted, they would not have been successful in discovering the fraud. The Court of Appeal claims that the maneuvers accomplished by executives and employees of PIP’s company were an obstacle in the discovery of the fraud committed by PIP – that fraud being the replacement of the NUSIL gel with a gel other than the only type authorized in the manufacturing of breast implants.
The high degree of complexity of the judgment requires a deep and thoughtful analysis of not only the legal basis but also with reference to the viability of any plea, as the case may be, regarding a stay of the proceedings of the on-going case before the Commercial Court of Toulon, while waiting for the judgment of the Supreme Court.