Product Liability

In a nutshell

Product liability involves personal injury or property damage litigation arising from alleged design and manufacturing defects, or information/warning deficiencies, in products. Litigation can consist of individual cases arising from one-off injuries, though in recent years much of it has been conducted through mass torts. Mass torts comprise class actions and/or multiple related individual cases brought by plaintiffs. Most cases within a mass tort do not usually go to trial as they tend to be resolved early through mediation or settlement.

Product liability lawyers also advise on how to avoid litigation, since clients are increasingly interested in prevention and mitigation of the costs and risks of significant product liability litigation. Attorneys are also often required to advise on related, nontraditional product claims, such as government investigations, which frequently arise alongside private claims. This quasi-criminal aspect involves defending the client against suits filed by state attorneys general and investigations conducted by the Department of Justice, often simultaneously.

The major industries that see the lion's share of product liability suits are tobacco, pharmaceutical, consumer products, chemicals and medical devices. BigLaw firms normally defend the manufacturers of the products.

What lawyers do

  • Meet with company witnesses to put together the company's defense.
  • Fact investigation and discovery – find out what actually happened.
  • Product investigation – get to know the product.
  • Choose and prepare experts; arrange for experiments if necessary.
  • File motions under the Frye or Daubert doctrines to dismiss inadequate plaintiffs' experts.
  • Write briefs on evidentiary, class action and dispositive motion issues, as well as legal analysis.
  • Take and defend fact and expert depositions.
  • Argue cases before juries.
  • Manage post-trial steps.

Realities of the job

  • Mass torts will typically include some form of consolidation or aggregation of the claims, ranging from a class action – in which plaintiffs have significant issues in common – to a federal multidistrict proceeding coordinating all the cases for pretrial purposes.
  • Cases are heard all across the country, though plaintiffs may like certain jurisdictions better than others for tactical reasons. These include East Texas, Atlantic County in New Jersey, and Philadelphia. The 'bank district' in Los Angeles is popular for its history of awarding multimillion and billion-dollar verdicts. It has been described by advocates of tort law reform as "judicial hell on earth."
  • Not all cases are tried the same way. There are a variety of different trial models that judges are experimenting with, including the bifurcated, reverse-bifurcated and bellwether models. Depending on the model, different strategies will be needed, and will sometimes require a mock jury exercise to see what will work best. Attorneys can suggest alternate trial plans, though the judge has the final say. Once the trial has begun, it is difficult to change how it is tried, though with mass tort, which involves many cases, it is possible to try iterative cases differently. Judges experimented extensively with the thousands of cases in the fen-phen litigation in the Philadelphia courts.
  • The main drivers of complex product liability litigation are the business and strategic decisions made by the plaintiffs' Bar, which do not necessarily involve pure scientific analysis of a product.
  • Plaintiff lawyers jump from product to product and industry to industry, and try to apply the same model to different cases. The tobacco industry has often seen plaintiffs' innovations before any other, whereafter plaintiffs will experiment with those approaches in different industries.
  • Many clients work extensively with the FDA, so current FDA employees cannot be used by the defense as expert witnesses, due to the conflict of interest. Instead, attorneys will work with retired FDA employees to learn about the regulatory and approval processes.
  • Much of the work done preparing for trial will turn out to be for cases that never make it to trial, since most mass torts are resolved before then. But attorneys do not know which of the 20,000-30,000 claims filed will actually be tried. There is, however, a winnowing process whereby judges eventually select a smaller pool of cases to be tried.
  • There is a large amount of routine paper and electronic discovery required, though many firms use staff and contract attorneys to do this job.
  • You don’t have to have a background in science to be a product liability lawyer, though to be a successful one you will have to learn about areas outside the law like engineering, medicine and science. You will also have to be able to communicate complicated scientific ideas to a judge or jury in a clear and simple fashion.
  • You may work with some of the leading scientists and doctors in the country and the world.
  • The job often involves extensive travel for trials and meeting with experts.
  • Most product liability work is domestic.

Current issues

  • Consumer fraud class actions continue to be on the rise in venues across the United States, particularly in California. These actions tend to be filed when plaintiffs’ counsel allege that “defendants mislead consumers as to the benefits of their products,” explains Michael Davis, head of Sidley Austin’s product liability and mass torts practice. These actions often arise when a product “claims to be ‘natural’ or have a specific health benefit, or when there are technical issues with labeling.”
  • Some frequently named defendants, in addition to the traditional consumer, food and pharmaceutical companies, are “energy drink manufacturers who allegedly fail to adequately label their products, helmet manufacturers, and NFL franchises for concussion injuries players allegedly suffered over time,” according to Michael Davis.
  • Another interesting development has been the advent of 'innovator liability'. According to Paul Boehm, partner at Williams & Connolly, this has been driven “by plaintiffs lawyers’ desire to circumvent the Supreme Court’s decision in Mensing. Since plaintiffs, under Mensing, cannot sue a generic drug manufacturer for failure to warn, plaintiffs' attorneys have advanced the theory that the ‘original innovator’ of the product, rather than the manufacturer of the product plaintiff actually used, can be liable under state-based ‘failure to warn’ claims. This theory would represent a fundamental change in some basic principles of tort law. Three state courts have allowed 'failure to warn' cases founded on the theory of ‘innovator liability', but most courts continue to reject it.”
  • Plaintiffs' attorneys continue to bring cases on purely speculative bases. These actions are often based on supposed economic loss or the mere risk of a loss in future. “Such cases are often brought when the actual product works as it should, but it is claimed that negative press coverage about possible damage has reduced the product's value,” according to Davis.