The legal framework governing product safety in the US is discussed below.

Overarching Federal Laws and Regulations

• Consumer Product Safety Act of 1972 (CPSA), 15 U.S.C. § 2051 et seq

This law established the Consumer Product Safety Commission (CPSC), the independent federal regulatory agency charged with protecting the public from unreasonable risks of harm from consumer products. CPSC is authorised to develop standards, issue recalls, and ban products in the US under certain circumstances.

• Consumer Product Safety Improvement Act of 2008 (CPSIA), Pub. L. 110-314, 122 Stat. 3016

The CPSIA amended the CPSA. It provided new regulatory and enforcement tools, and authorised CPSC to create SaferProducts.gov, a website database where the public can file and read complaints about products under CPSC’s jurisdiction.

• Amendment to Consumer Product Safety Improvement Act of 2008, Pub. L. 112-28, 125 Stat. 273 (2011)

The CPSIA was amended in 2011 to add requirements for SaferProducts.gov, including expanding the information collected in product reports, defining the timing for posting the reports to the database, and expanding CPSC’s authority and discretion to enforce product safety laws.

In addition, certain federal statutes impose safety and labelling requirements for particular products, such as:

• Flammable Fabrics Act, 15 U.S.C. § 1191 et seq
• Labeling of Hazardous Art Materials Act, 15 U.S.C. § 1277
• Refrigerator Safety Act, 15 U.S.C. § 1211
• Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. § 8001 et seq
• Drywall Safety Act of 2012, 5 U.S.C. § 553, 15 U.S.C. §§ 2058, 2063
• Portable Fuel Container Act of 2020, 15 U.S.C. § 2056d

Industry-Specific Laws

Food and Drugs

• Federal Food, Drug, and Cosmetic Act of 1938 (FD&C), 21 U.S.C. § 301 et seq

This law charges the Food and Drug Administration (FDA) with ensuring the safety of the US food supply and cosmetics, and the safety, efficacy and security of drugs, biological products and medical devices. The law seeks to protect the public from adulterated and misbranded products manufactured and sold in the US.

• Food and Drug Modernization Act of 1997, Pub. Law 105-115

The regulation of food, drugs, medical devices and cosmetics was reformed to include off-label use of drugs and medical devices, risk-based regulation of medical devices, elimination of pre-market approval for food packaging, and monitoring healthcare claims for foods.

• Family Smoking Prevention and Tobacco Control Act of 2009 (TCA), Pub. L. 111-31, 123 Stat. 1776

This law authorises the FDA to regulate the manufacture, distribution and marketing of tobacco products in the US.

Transportation

• Federal Aviation Act of 1958, 49 U.S.C. § 40101 et seq (repealed and recodified in 1994)

The Federal Aviation Act of 1958 established the Federal Aviation Agency (FAA) to provide for the safe and efficient use of national airspace and regulate safety in the aviation industry.

• National Traffic and Motor Vehicle Safety Act (VSA) of 1966, Pub. L. 89–563, 80 Stat. 718

This law establishes federal motor vehicle safety standards (FMVSS) for all new domestic and imported vehicles, addresses concerns about tyre safety, and requires manufacturers to notify consumers of safety-related defects and pay for the repairs.

• Highway Safety Act of 1970, 23 U.S.C. § 401 et seq

This law established the National Highway Traffic Safety Administration (NHTSA) and charged it with setting and enforcing safety performance standards for motor vehicles and related equipment and investigating safety defects in motor vehicles.

• Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, 49 U.S.C. §§ 30101-30170

The TREAD Act requires vehicle and equipment manufacturers to periodically report to NHTSA safety recalls in the US and safety campaigns in foreign countries, and report information that could indicate the existence of a potential safety defect, and imposes criminal liability on vehicle manufacturers that intentionally violate reporting requirements.

Toxic Substances

• Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. § 2601 et seq

The TSCA provided the Environmental Protection Agency (EPA) the authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and mixtures. The TSCA addresses the production, importation, use and disposal of specific chemicals. Food, drugs, cosmetics and pesticides are excluded from the TSCA.

• Lautenberg Chemical Safety Act, Pub. L. 114-182, 130 Stat. 448 (2016)

The Lautenberg Act revised the TSCA to in part allow for more rigorous vetting of chemicals before they are allowed into the market and updated the EPA’s risk analysis for chemicals already on the market, including a risk-based safety standard that excludes cost considerations.

• Asbestos Information Act of 1988, 15 U.S.C. § 2607(f), Pub. L. 100-577, 102 Stat. 2901

This law requires companies that make certain asbestos-containing products to report production to the EPA.

Children’s Safety

Several federal statutes address safety measures for products dangerous to children:

• Federal Hazardous Substances Act, 15 U.S.C. § 1261 et seq
• Poison Prevention Packaging Act of 1970, 15 U.S.C. § 1471 et seq
• Child Safety Protection Act, Pub. L. 103-267, 108 Stat. 722 (1994)
• The Children’s Gasoline Burn Prevention Act, 5 U.S.C. § 553, 15 U.S.C. § 2058
• Child Nicotine Poisoning Prevention Action of 2015, 15 U.S.C. § 1471 et seq
• Safe Sleep for Babies Act of 2021, Pub. L. 117-126, 136 Stat. 1208
• Reese’s Law, Pub. L. 117-171, 136 Stat. 2094 (2022)
• STURDY Act, H.R. 2617 (2022)

Consumer Protection

• Federal Trade Commission Act (FTCA), 15 U.S.C. § 41 et seq

The FTCA established the Federal Trade Commission (FTC) and empowered it to prevent unfair methods of competition or unfair and deceptive acts and practices affecting commerce, to seek relief for conduct that harms the public, and to prescribe rules defining and preventing unfair or deceptive acts or practices.

State Laws

Product safety laws at the state level can vary widely and are enforceable both by private action and through state attorneys general.

The main regulators of product safety in the US are: CPSC, FAA, FDA, NHTSA, FTC and EPA. Their authority to regulate product and consumer safety is defined by statute.

CPSC

CPSC regulates consumer products by developing standards and issuing recalls and bans on products in the US under certain circumstances. Its regulations are set forth in the Code of Federal Regulations (C.F.R.), Title 16.

FAA

The FAA regulates airworthiness standards for aircraft and aircraft equipment. Its regulations can be found in C.F.R., Title 14.

FDA

The FDA regulates and safeguard food, cosmetics, drugs, biological products, medical devices and tobacco products. The FDA’s regulations are set forth in C.F.R., Title 21.

NHTSA

NHTSA regulates highway and vehicle safety, establishes and enforces FMVSS, and issues motor vehicle and component part recalls. NHTSA regulations can be found in C.F.R., Title 49.

FTC

The FTC investigates violations and enforces consumer protection laws and federal antitrust laws. FTC rules are published in C.F.R., Title 16.

EPA

The EPA regulates chemical products, pesticides, airline emissions, and air and water quality standards. The EPA’s regulations are set forth in C.F.R., Title 40.

Corrective action, such as product recalls, can be requested or required by CPSC, the FDA and NHTSA.

CPSC

If CPSC makes a preliminary determination that a product defect creates a substantial risk of injury, corrective action is required. It classifies product dangers depending on the likelihood and severity of death, injury or illness as either Class A, Class B or Class C Hazards. Each Hazard Class requires corrective action, which may include a recall, public notice, and remedies for consumers. Corrective action may also include steps to mitigate a potential hazard, such as changes to design, manufacturing materials, quality control, warnings or marketing, or discontinuing a product.

Companies must work with CPSC to prepare a plan for communicating a recall to consumers. Requirements for recall notices are set forth in CFR Title 16, § 1115.27. CPSC has established the Fast-Track Product Recall Program, under which a company may avoid a preliminary determination by CPSC that a product creates a substantial risk of injury if it reports the potential defect, meets other requirements for a timely recall, and works with CPSC to implement a corrective action plan.

FDA

FDA corrective action is largely voluntary and consists of either correction or recall. The FDA evaluates a potential health hazard based on factors set forth in C.F.R. Title 21, § 7.41, and assigns a recall classification (Class I, II or III) indicating the product’s relative degree of health hazard. A Class is assigned based on the likelihood and seriousness of a product’s adverse health impact. The company then submits a proposed recall strategy to the FDA consistent with the requirements set forth in C.F.R. Title 21, § 7.42, and communicates the correction or recall to consumers consistent with the requirements set forth in C.F.R. Title 21, § 7.49. The FDA will notify the public through its weekly Enforcement Report. C.F.R. Title 21, § 7.50.

NHTSA

NHTSA requires manufacturers to recall motor vehicles and component parts that fail to comply with FMVSS or that contain safety-related defects that pose an unreasonable risk to motor vehicle safety. Manufacturers have three options for correcting a defect: repair, replace or refund. If a recall is required, manufacturers must notify by first-class mail all registered owners and purchasers of the affected vehicles or components. The requirements for notification are set forth in C.F.R. Title 49, § 577.5.

The notification requirements concerning potential protect safety issues vary by agency.

CPSC

CPSC mandates risk-based and incident-based reporting. Section 15 of the CPSA requires manufacturers, importers, distributors and retailers to notify CPSC immediately if they receive information that reasonably supports the conclusion that a product: fails to comply with an applicable CPSC safety rule or law enforced by CPSC; contains a defect which could create a substantial product hazard; or creates an unreasonable risk of serious injury or death. Section 15 report requirements are found in C.F.R. Title 16, § 1115. Section 102 of the Child Safety Protection Act requires companies to report certain choking incidents involving children. Code of Federal Regulations Title 16, § 1117 details the information the manufacturer, distributor, retailer and importer should include in the report. Reports under either section must be made within 24 hours of receiving reportable information. If uncertain about whether information is reportable, an entity can conduct an investigation not to exceed ten working days, with some exceptions. Section 37 of the CPSA requires manufacturers of consumer products to report information about settled or adjudicated civil actions after the third such action is terminated. Section 37 report requirements are found in C.F.R. Title 16, § 1116.

FDA

The FDA’s reporting requirements depend upon the product at issue.

• Drugs and Biologics

Manufacturers, packagers and distributors of marketed prescription drug products that are not the subject of an approved new drug or abbreviated new drug application are required to report all serious and unexpected adverse drug experiences (as defined by C.F.R.) associated with the use of their products within 15 days of receipt of this information. Reporting requirements are found at C.F.R. Title 21, § 310.305.

Biologic manufacturers must report serious and unexpected adverse events within 15 days of learning about the event. Requirements for the report are set forth in C.F.R. Title 21, § 600.80.

• Devices

Manufacturers must report to the FDA within 30 days when they learn a device has malfunctioned and would likely cause or contribute to causing serious injury or death if the malfunction reoccurs. C.F.R. Title 21, § 803.50(a). Device importers are required to report to the manufacturer of the imported device within 30 days a malfunction that would likely cause or contribute to causing serious injury or death. C.F.R. Title 21, § 803.40(b). Reporting requirements are set forth in C.F.R. Title 21, §§ 803.42, 803.52. Manufacturers are also required to report within five days events requiring remedial action to prevent an unreasonable risk of substantial harm to public health. C.F.R. Title 21, § 803.53.

NHTSA

NHTSA requires risk-based and incident-based reporting.

Vehicle and equipment manufacturers must submit a Defect and Noncompliance Information Report to NHTSA within five working days of concluding the equipment or vehicle poses a danger or fails to comply with FMVSS. Information required in the report is set forth in C.F.R. Title 49, § 573.6. Pursuant to C.F.R. Title 49, § 579.11, manufacturers must inform NHTSA of safety recalls or campaigns in foreign countries within five days of deciding to conduct the recall or receiving notice from a foreign government that action is required.

The TREAD Act requires vehicle and equipment manufacturers to report periodically to NHTSA on a variety of information that could indicate the existence of a potential product safety defect and advise NHTSA of safety recalls or campaigns in foreign countries. Pursuant to 49 U.S.C. § 30166(f), manufacturers are required to submit to NHTSA copies of their communications about defects and noncompliance with FMVSS.

Penalties are set by law and imposed by agency or the US Department of Justice.

CPSC

Civil penalties are available if a company violates laws enforced by CPSC. The maximum amounts allowed are USD120,000 for each violation, and USD17.15 million for any related series of violations. In January 2023, CPSC unanimously approved a USD19.065 million penalty against an exercise equipment manufacturer for keeping vital safety information secret and distributing recalled products with a lethal defect. In May 2023, CPSC announced a USD15.8 million civil penalty against a portable generator manufacturer for failing to report finger injuries to consumers.

FAA

The FAA may assess civil penalties up to USD400,000 against persons other than individuals and small businesses, and up to USD50,000 against individuals and small businesses, for violation of a law or statute enforced by the FAA. 49 U.S.C. § 46301; C.F.R. Title 14, § 13.18. Generally, the penalty for each violation ranges from USD1,100 to USD27,500, depending on the provision violated and the category of the alleged violator.

FDA

Civil and criminal penalties can be imposed upon anyone who violates the FD&C. Civil penalties include warning letters, injunctions, seizure and civil fines. 21 U.S.C. §§ 332, 334, 335b. Criminal penalties include imprisonment up to one year, a fine of USD1,000, or both. 21 U.S.C. § 333(a). The FD&C also imposes enhanced criminal penalties for prescription drug marketing violations, violations related to medical devices, and distribution of human growth hormone. 21 U.S.C. §§ 333(b), 333(e), 333(f). Civil penalties can also be imposed by the FDA pursuant to C.F.R. Title 21, § 17 et seq, for failing to submit clinical trial information or submitting false or misleading information. The FDA is also authorised to impose civil penalties for violating the TCA. In February 2023, the FDA filed civil complaints against four tobacco product manufacturers for manufacturing and selling e-liquids without marketing authorisation, seeking USD19,192 per violation, the maximum amount allowed by law.

NHTSA

The VSA provides for civil penalties up to USD21,000 per violation, and up to USD105 million for a related series of violations. 49 U.S.C. § 30165. Submitting false or misleading reports exposes companies to civil penalties of USD5,000 per day, up to USD1 million for a related series of violations. Criminal penalties for falsifying or withholding information include fines or imprisonment up to 15 years, or both. In January 2023, NHTSA imposed a USD130 million penalty against a vehicle manufacturer for untimely recalls, inaccurate reports and failing to notify owners of a recall. In March 2022, NHTSA imposed a USD75,000 penalty against a vehicle importer for submitting improper certificates of conformance, selling or releasing imported vehicles during the waiting period, and changing the location of its operations without informing NHTSA.

EPA

The EPA can impose civil penalties up to USD37,500 for violating the TSCA, criminal fines and injunctions. 15 U.S.C. § 2615. Criminal penalties can include fines ranging from USD50,000 per day for individuals, up to USD1 million per corporate violation of the TSCA; restitution; or incarceration ranging from one to 15 years. 15 U.S.C. § 2615.

FTC

The FTC can impose civil penalties for knowing rule violations, including injunctions and fines up to USD10,000 per violation. 15 U.S.C. § 45.

Product liability is derived from state rather than federal law. There can be significant differences among product liability law of individual states.

The primary causes of action in product liability cases are negligence, strict liability and breach of warranty. Other legal claims that may be applicable to product liability lawsuits include consumer protection, fraud and negligent misrepresentation. Claims can generally be asserted against anyone in the chain of commerce including a manufacturer, seller, distributor or retailer, even if a defendant was unaware of the defect at the time it left its control.

Negligence

A negligence claim focuses on the reasonableness of the defendant’s conduct and whether there was a breach of the duty of care. A defendant owes a duty of reasonable care in its design and manufacturing processes and in its provision of adequate product warnings.

The elements of a negligence claim are the following:

1. The defendant owed a duty of care to the plaintiff;

2. The defendant breached that duty;

3. The breach caused the plaintiff’s injury; and

4. The plaintiff sustained injuries or damages.

Strict Liability

Strict liability focuses on the product itself and not on the defendant’s intent or level of care. As such, even if a manufacturer is found to have exercised reasonable care, it may still be found liable under strict liability. Strict liability generally requires a showing that:

1. The product was sold in an unreasonably dangerous condition when it left the possession and control of the manufacturer, seller, distributor or retailer;

2. The product was materially in the same condition when it reached the plaintiff as it was when it left the defendant’s control; and

3. The defect caused the plaintiff’s injury.

Breach of Warranty

Warranty claims may be based on express affirmations of fact or promises made to buyers or lessees relating to the product, descriptions or samples of goods, or implied warranties of merchantability and for fitness for a particular purpose.

A breach of express warranty arises when a seller makes an express promise to a purchaser that the product will meet a certain standard and it fails to do so. The promises are often found in sales contracts but may exist when there are assurances or descriptions of product quality made to the purchaser.

A breach of implied warranty of merchantability occurs when the product is not fit for the purpose for which it is typically used. The plaintiff typically must prove that the defect in the product rendered it unfit for its ordinary and intended use.

An implied warranty of fitness for a particular purpose may arise where: (1) the seller has reason to know of the particular purpose for which the goods are provided; (2) the seller has reason to know that the buyer is relying upon its skill or judgement to furnish the appropriate goods; and (3) the buyer does in fact rely on the seller’s skill or judgement.

Consumer Protection

Consumer protection statutes are often broad and encompass such business practices as false or misleading advertising or labelling, breach of implied warranties, misrepresentations and safety violations. The statute will typically set forth the standard of proof. Many statutes require proof of intent and reliance on the misleading information or misrepresentation.

Fraud

To establish fraud or intentional misrepresentation claim, a plaintiff must prove that:

1. The defendant knowingly made a false or misleading representation about the product to induce the plaintiff to purchase it;

2. The plaintiff relied upon the misrepresentation when purchasing the product; and

3. The plaintiff was damaged by the representation.

A finding of fraud or intentional misrepresentation may provide a basis for awarding punitive damages.

Negligent Misrepresentation

To prove a claim of negligent misrepresentation, the plaintiff must prove that:

1. There was a false or misleading representation made about the product;

2. The defendant should have known that the information was false or misleading;

3. The plaintiff relied upon the false or misleading representation; and

4. The plaintiff was damaged as a result.

Negligent misrepresentation, unlike fraud, does not require the plaintiff to prove the defendant intended to mislead.

Types of Product Defect

Defects in manufacturing, design, packaging and product warnings can all give rise to liability. A manufacturing defect exists where the product differs from its intended design. A design defect exists where the product’s design is defective, such that all products manufactured and sold with the design are defective and foreseeable risks could have been limited or eliminated by a reasonable alternative design. A defective warning involves the failure to disclose foreseeable risks of the product or the failure to adequately warn of the product’s dangers. Failure to warn claims are typically asserted as negligence or strict liability claims.

The test for whether a product is defective varies among the states. Typically states use the consumer-expectations test, the risk-utility test, or a combination of both. Under the consumer-expectations test, a defect exists if the product is unreasonably dangerous, and the danger exceeds what an ordinary consumer would expect. Restatement (Second) of Torts: Product Liability § 402(a). Under the risk-utility test, the product is defective if the utility of the product is outweighed by the risk of injury. Id.

A person claiming injury resulting from a defective product has standing to bring a product liability claim. The original purchaser of the product is not typically the only one with standing. In a “tort based” warranty action (ie, for personal injuries or property damage other than to the product itself), the plaintiff need not have bought or leased the product directly from the defendant, so long as the plaintiff is a person whom the defendant might reasonably have expected to use, consume or be affected by the product. Theos & Sons, Inc. v Mack Trucks, Inc., 431 Mass. 736 (2000).

Whether a plaintiff can bring derivative damage claims in a product liability action typically depends on the law of the state where the action is filed. For example, a spouse or child may be permitted to bring a loss of consortium claim (for loss of care, guidance and comfort) in certain states. Wrongful death or survivor statutes, which also vary by state law, define when heirs or administrators can bring actions on behalf of the decedent’s estate. Certain states permit claims for emotional distress for individuals who were not physically injured by a product if they were in the “zone of danger” and witnessed someone else being injured.

The time limits within which an action may be brought depends on the cause of action and jurisdiction. Statutes of limitations can range from one to six years. Some states have specific statutes for bringing a product liability action. In the absence of such a statute, the time limit for the cause of action controls.

Most states have adopted the discovery rule, which means that the statute of limitations will not begin to run until the plaintiff discovers, or reasonably should have discovered, the injury, cause, and/or wrongful conduct of the defendant. There is variation in the application of the discovery rule among the states that have adopted it. Many states require discovery of the injury and cause to trigger the statute. Other states require only that the plaintiff discover the injury. Certain states require the plaintiff discover the facts essential to prove each element of the cause of action.

State Court Jurisdiction

To maintain a suit against the defendant, the court in which the case is brought must have personal jurisdiction over the defendant. Personal jurisdiction includes both general and specific jurisdiction.

General Jurisdiction

A state court has general jurisdiction to hear all claims over a party where it is incorporated or has its principal place of business in that state.

Specific Jurisdiction

Specific jurisdiction only allows a court to hear a particular case against a party. The US Supreme Court in Bristol-Myers Squibb Co. v Superior Court of California, 137 S. Ct. 1773 (2017) clarified the scope of specific jurisdiction. Specific jurisdiction requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State”. Id. at 1781. Multi-plaintiff product actions with non-resident plaintiffs face jurisdictional hurdles when they are brought in courts of states where the defendant is not headquartered or incorporated and where the alleged incident did not occur.

In 2021, the US Supreme Court further delineated where lawsuits can be filed under the doctrine of personal jurisdiction. The Court held that plaintiffs could file suit against a defendant where the defendant had cultivated and served a market in a state, even if there was no direct link between the product causing the injury and the forum state. Ford Motor Company v Montana Eighth Judicial District Court et al., 141 S. Ct. 1017, 1026 (2021).

Federal Court Jurisdiction

Federal courts have “federal question” jurisdiction over cases arising under the US Constitution, federal laws or treaties. 28 U.S.C. § 1331. Federal courts also have “diversity jurisdiction” in cases where each plaintiff is from a different state or foreign country than each defendant and the amount in controversy exceeds USD75,000. 28 U.S.C. § 1332(d). In diversity jurisdiction, the federal court where the suit is filed must have specific jurisdiction over at least one party.

If federal jurisdiction prerequisites are not met, claims must be brought in the state court that has jurisdiction.

In general, there are no pre-action requirements to bring a product liability claim. Many jurisdictions, however, require a party asserting a warranty claim to provide the opposing party reasonable notice of the breach of warranty upon discovering the breach. UCC § 2-607. The notice requirement exists to provide the allegedly breaching party an opportunity to cure the breach. The notice requirement is typically not a prerequisite for bringing a breach of warranty claim, but the failure to provide reasonable notice may be asserted as an affirmative defence to the claim. In some jurisdictions, the filing of the lawsuit is sufficient notice to the defendant.

Once an entity “reasonably anticipates” becoming party to a litigation or the target of a governmental investigation, it has a common law duty to preserve all potentially relevant documents and tangible things, including electronically stored information, that may be discoverable in that litigation or investigation.

This duty extends to materials within a party’s possession, custody or control, and materials it created, revised, sent, received or changed; and applies regardless of where the party has physical custody of the materials. In product liability cases, parties may also be required to preserve tangible things such as the allegedly defective product.

The standards for appropriate preservation of evidence include reasonableness, proportionality and accessibility. A legal hold should be promptly implemented if it could be credibly argued that either an investigation or litigation involving the materials at issue is likely. Fed. R. Civ. P 37(e) governs the potential consequences if a legal hold is not properly implemented or adhered to.

The scope and timing of discovery in federal court is governed by Fed. R. Civ. P. 26. State court discovery rules and practice are similar to the federal rules but often have their own nuances. Rule 26(b)(1) defines the scope of discovery as “any non-privileged matter that is relevant to any party’s claim or defence and proportional to the needs of the case”. Proportionality requires an assessment of “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”.

Fed. R. Civ. P. 34 governs the production of documents and tangible things, whether in physical documents, electronic records and data, records of communications (physical, email, text, recordings, etc), or physical objects such as the product itself. Fed. R. Civ. P. 45 addresses the procedures for obtaining documents from a non-party through the service of subpoenas. In a product case, typical non-parties include the plaintiff’s employer, prior owners of the product, and healthcare providers.

Expert witness testimony in federal court is governed by Federal Rules of Evidence 702 and 703. Rule 702 requires:

1. The expert’s scientific, technical or specialised knowledge to help the trier of fact understand the evidence or determine a fact at issue;

2. The testimony be based on sufficient facts or evidence;

3. The testimony be the product of reliable methods and principles; and

4. The expert to reliably apply those methods and principles to the facts of the case.

Rule 703 provides that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.

While certain information that an expert relies on in forming his or her opinions may not need to be admissible, if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Federal Standard for Admissibility of Expert Testimony

Under the federal standard, the trial judge acts as gatekeeper and should admit expert opinion testimony only if the Rule 702 requirements are met. Daubert v Merrell Dow Pharm., Inc., 509 U.S. 579 (1983). Courts assess several factors in determining reliability of an expert’s methodology, including:

1. Whether the theory is testable;

2. Whether the theory is subject to peer review and publication;

3. Whether there is a known or potential error rate; and

4. Whether the theory is generally accepted in the field.

Courts applying the Daubert standard typically apply additional factors identified by the Ninth Circuit Court of Appeals in Daubert on remand: “whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying because the former provides important, objective proof that the research comports with the dictates of good science”. Daubert v Merrell Dow Pharm. Inc., 43 F.3d 1311, 1313 (9th Cir. 1995).

Frye Standard

Some state courts apply the Frye standard rather than Daubert when assessing the admissibility of expert testimony. Expert testimony is admissible under Frye if the expert’s methodology is generally accepted by experts in that particular field. Frye v United States, 293 F. 1013 (D.C. Cir. 1923). Experimental methodology or methodology that is not well recognised is generally not admissible.

The plaintiff who asserts a product liability action bears the burden of proving his or her claims against defendant(s). Each element of the claim must be proven by a preponderance of the evidence. The failure to prove any element of a cause of action by a preponderance of the evidence is fatal to the claim. In some states, there is a heightened burden of proof for establishing punitive damages including “clear and convincing evidence” and “beyond a reasonable doubt”. A defendant bears the burden of proving the affirmative defences he or she raises during the lawsuit.

In some states, plaintiffs are required to prove the existence of a feasible alternative design. Evans v Daikin North Am., LLC (D. Mass. 2019).

Product liability cases are typically brought in district court in the federal system and the state trial courts. Product liability cases are most often tried before juries; however, the parties can agree to proceed with a bench trial before a judge. Some states require the plaintiff to affirmatively assert a claim for jury trial, and the failure to do so may waive the party’s right to a jury trial.

In a jury trial, the judge will preside over the trial and rule on all motions, including those for a directed verdict. A directed verdict motion asserts that the plaintiff has failed to meet his or her burden of proof at trial.

There are no unique appellate procedures for product liability cases. In federal court cases, a party may appeal a final decision to a regional Circuit Court of Appeal. A decision is final when the court enters a final judgment (either through ruling on a dispositive motion or following a verdict). Fed. R. Civ. P. 58. In some instances, a party may appeal a district court’s ruling through an interlocutory appeal. The Federal Rules of Appellate Procedure and local rules of individual Circuit Courts of Appeal govern the appeal process. The appellate court will issue a ruling based on its review of the record, the parties’ appellate briefs, and oral argument.

To challenge an appellate court ruling (or a state supreme court’s ruling if there is a federal question), a party can file a writ of certiorari to the US Supreme Court. The Supreme Court has discretion to grant or deny such petitions.

In state court, there is typically a trial court, intermediate appellate court and high court. The appellate procedure is governed by the individual state’s rules of appellate procedure.

Affirmative defences to product liability claims are typically governed by state law and vary among jurisdictions. The defendant’s burden of proving an affirmative defence is by a preponderance of the evidence. The following are among the most common affirmative defences to product liability claims:

Comparative/Contributory Negligence

Most states follow comparative negligence principles, which means that the damages awarded will be apportioned based on the parties’ respective percentages of fault. The most common comparative negligence schemes are the pure and modified approaches. Under the pure comparative negligence rule, the plaintiff’s recovery is reduced by his or her percentage of fault. For example, if the plaintiff is 70% responsible for his or her damages, his or her recovery will be reduced by 70%. Under the modified comparative negligence rule, the plaintiff is barred from recovery if he or she is found more than 50% at fault. A small number of states follow the contributory negligence rule, which means that the plaintiff cannot recover if he or she is found any amount at fault.

Many states have rules or statutes that further define the scope of the comparative negligence defence. For example, in Massachusetts, the plaintiff’s comparative negligence is not a defence to a breach of implied warranty claim unless the plaintiff voluntarily and unreasonably proceeded to encounter the defect.

Assumption of the Risk

The assumption of the risk defence precludes recovery where a plaintiff voluntarily used a product when he or she was aware, or should have been aware, of a defect or other risk of harm, and nevertheless proceeded despite having that knowledge.

Material Alteration

The plaintiff is barred from recovery under this defence when it is established the product was not in materially the same condition at the time of the incident as when it left the control of the defendant, and the alteration or modifications caused the injury.

Unforeseeable Misuse

The plaintiff is barred from recovery when he or she misuses the product in a manner unforeseeable to the manufacturer or seller, and the misuse causes the injury.

Sophisticated User/Learned Intermediary

The sophisticated user defence protects a manufacturer or product seller from liability for failure to warn when the end user knows or reasonably should know of the product’s risks.

Under the learned intermediary doctrine, a product manufacturer may in some circumstances rely on the knowledge of a “learned intermediary” who has received an appropriate warning. This doctrine is most applicable in the prescription drug and medical device context.

Federal Pre-emption

Certain state law claims may be pre-empted and barred by a federal statute governing a particular product. Federal law pre-empts state law if (1) it is expressly stated by Congress, (2) the state law conflicts with federal law; or (3) Congress has indicated that a certain area is not subject to state law. Product cases in which the defence is typically raised are prescription drug and motor vehicle defect cases.

While compliance with regulatory standards is typically something the jury can consider in assessing the conduct of the defendant, it does not preclude a finding of negligence when reasonable conduct would suggest additional precautions were warranted. The failure of a manufacturer to comply with applicable federal standards can be evidence of a breach of duty or negligence per se.

Compliance with regulatory standards is relevant to rebut a claim that the manufacturer’s conduct warrants the imposition of exemplary or punitive damages.

Under the “American Rule”, each party is typically responsible for bearing its own litigation costs. There are exceptions to this rule, many of which vary by state. Many state rules allow recovery of certain litigation costs from the losing party. Certain state statutes may allow for recovery of attorney’s fees and litigation costs if a plaintiff prevails in a particular type of claim. For example, under the Massachusetts consumer protection statute (M.G.L. c. 93A), a breach of implied warranty is a per se violation of the statute entitling the plaintiff to his or her attorney’s fees and costs.

The availability of “offers of judgment” under both the federal rules and certain state rules and statutes provides a potential avenue to recovering litigation expenses. Under Fed. R. Civ. P. 68, a party can make an offer of judgment to the other party at least 14 days before trial. If the opposing party rejects the offer and the final judgment is less than the offer, the opposing party must pay the litigation costs incurred by the party making the offer incurred after the date of the offer.

Contingency fee arrangements are the typical manner in which injured plaintiffs pursue product liability claims. In these arrangements, the plaintiff’s counsel will receive a percentage of the award or settlement in addition to litigation expenses if there is a recovery. When there is no recovery, the lawyer receives no fee or reimbursement for expenses.

Third-party litigation funding arrangements in which a non-party funds the lawsuit in exchange for a portion of any recovery continues to be a growing trend in personal injury litigation.

Multidistrict litigation (MDL) was created by statute and has as its primary purpose establishing a centralised forum where related cases pending in federal court are consolidated so that coordinated pretrial proceedings can proceed in an efficient and effective manner. Pretrial proceedings include pretrial motions and discovery. The objectives for an MDL proceeding are many, including reducing litigation costs through more efficient discovery, avoiding conflicting rulings and schedules among court proceedings, streamlining key issues, and moving cases towards a resolution – either through trial, motions or settlement. State courts may permit consolidated proceedings involving similar claims of product defect.

Class action proceedings are available in federal court if the prerequisites of Fed. R. Civ. P. 23 are met. Product liability and personal injury actions are rarely appropriate for class action proceedings because they require an individualised assessment of causation and injury, making it difficult to satisfy the requirements of Fed. R. Civ. P. 23.

W. Virginia v Environmental Protection Agency, 142 S. Ct. 2587 (2022)

In June 2022, the US Supreme Court issued a six-to-three ruling limiting the scope of powers granted to the EPA under the Clean Air Act, 42 U.S.C. § 7411(d), and held that Congress must provide clear direction to the EPA for it to regulate greenhouse gas emissions, rather than a broad delegation of power. The Court invoked the “major questions doctrine” in requiring that Congress provide clear direction in delegating its authority. This is the first time the US Supreme Court formally applied the major questions doctrine to limit a broad delegation of congressional authority to the EPA. The suit originated in a challenge to rules adopted by the EPA to limit emissions. The case is relevant to the regulation of products through federal agencies because it implicates how much authority can be delegated to an agency.

In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, MDL No. 3047 (pending matter)

This case exemplifies a recent trend in which traditional product liability theories are applied to personal injuries alleged to have resulted from an intangible product. In this matter, the product claims are asserted against social media platforms, alleging that they can lead to addiction and poor mental health outcomes in adolescents. This litigation remains in its early stages and has implications for how courts will allow product claims to be utilised in new contexts and relative to new technologies.

Firearms as a Public Nuisance

In the wake of mass shooting events across the US, state lawmakers have explored novel legal theories in an attempt to allow legal claims to be pursued against gun sellers and manufacturers. For example, the federal 2006 Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903 (PLCAA), offers protections to firearm manufacturers and sellers from lawsuits that resulted from the criminal or unlawful use of a firearm, if it was legally sold. In July 2021, New York passed a law permitting gunmakers to be held liable for public nuisance in certain circumstances, such as recklessly selling legal weapons or for failing or refusing to employ sufficient safeguards in their sale. The law was challenged and upheld in 2022 but has been appealed. Similar laws have been passed in New Jersey and Delaware. Other efforts to avoid the PLCAA have been unsuccessful in the past. The cases have national implications.

Product Claims and Social Media

Social media companies are facing product liability claims in an attempt to bypass the traditional legal immunity they enjoy for content posted by users (third-party content) under § 230(c)(1) of the 1996 Communications Act, 47 U.S.C. § 230. Claims allege that services and algorithms are addictive by design, including that they lead to adverse mental health in adolescents. An MDL lawsuit was filed in February 2023 in the Northern District of California, which will test whether traditional product and tort claims can be applied to intangible products where the alleged injuries are personal mental health problems.

Relatedly, the US Supreme Court recently heard arguments on and remanded to the 9th Circuit Gonzalez v Google LLC, 21-1333, which concerns the scope of legal immunity to providers of computer services under § 230(c)(1), particularly where the provider makes targeted recommendations to users. A ruling on the scope of legal immunity under § 230 may also implicate whether product-based legal theories can be pursued against online providers.

Mass Torts Claims and Bankruptcy

Four recent product liability cases in MDL have involved parent companies seeking to take advantage of bankruptcy protections afforded to a subsidiary in the context of mass tort litigation. The entities filing for bankruptcy were subsidiaries that had taken on the liabilities of their parent companies. The Third Circuit Court of Appeals rejected this effort in the first of the four cases in January 2023, which revived lawsuits that would have been stayed due to the bankruptcy. The three other matters are pending before the Fourth and Seventh Circuit Courts of Appeal.

Future policy issues with the potential for significant implications in the product liability legal landscape include: CPCS’s goals and priorities to enhance product safety and how these influence its actions and the regulation of various products; the regulation of the internet; artificial intelligence; and self-driving vehicles including the role played by NHTSA in the development of this technology.

Policy Development – CPSC 2023-2026 Strategic Plan

As discussed above, federal agencies regulating products will play a major role in shaping future policies. CPSC recently published its 2023-2026 Strategic Plan, setting forth key priorities over the next four years (www.cpsc.gov/s3fs-public/Strategic-Plan-2023-2026.pdf?VersionId=Y6434PE4JIewh_2ns7YynofecxqNIv1B). The goals set forth in the Strategic Plan include: preventing hazardous products from reaching the market and addressing those that do in a fast and effective manner; improved and timely consumer product safety; and increasing efficiency in operational support, technology, governance and management.

To help achieve these goals, CPSC intends to enhance its data analysis and research capabilities to identify existing and potential emerging product hazards that pose the greatest risks; address product hazards associated with changes in traditional manufacturing methods; evaluate safety implications of e-commerce sales and evolving distribution options; help develop voluntary standards and adopt mandatory regulations; identify, research and inform the public about chemical and chronic hazards in consumer products; and increase the ability to interdict potentially non-compliant de minimis shipments of e-commerce products.

Another major component of CPSC’s prevention approach is identification and interception of hazardous consumer products through import surveillance and inspection programmes. CPSC conducts establishment inspections of manufacturers, importers and retailers; monitors internet and resale markets; responds to industry-generated reports about potentially hazardous products; and tests products for compliance with specific standards and mandatory regulations.

Regulation of the Internet

Beginning in 2023, five states will begin enforcing new data privacy laws based on the European Union’s General Data Protection Regulation, under which individuals own their personal data and have a presumptive right to control it and who can use it. This marks a shift in the approach to data privacy in the US.

Artificial Intelligence

In April 2023, the National Telecommunications and Information Administration, an agency within the US Commerce Department, indicated that it is seeking public comments on potential accountability measures for artificial intelligence systems (ntia.gov/issues/artificial-intelligence/request-for-comments). This reflects the growing regulatory interest in artificial intelligence in the US.

Self-Driving Vehicles

In 2022, NHTSA updated occupant protection safety rules to include vehicles without manual driving controls. This allows companies to develop autonomous vehicles if they meet other state and federal standards (www.nhtsa.gov/press-releases/nhtsa-finalizes-first-occupant-protection-safety-standards-vehicles-without-driving). NHTSA will continue to oversee the safety testing and deployment of autonomous vehicles from a public safety and regulatory standpoint as the technology evolves.

COVID-19

Federal courts and individual state courts have issued their own policies for handling COVID-19, which have evolved over time. This has increased a trend towards conducting more proceedings remotely, although courts have generally returned to in-person trials as the severity of the COVID-19 pandemic has decreased. The return to remote trials has remained an option when COVID-19 cases spike in individual jurisdictions.

Several states tolled statutes of limitations with the onset of COVID-19 in the US, starting in or around March 2020. The tolling period varies by individual state, with the general purpose of preserving legal claims that would have expired when the courts were closed or limited. Individual state laws should be reviewed to determine whether this continues to affect filing deadlines for new claims.

The Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. § 247d-6d and 42 U.S.C. § 247D-6E, has provided some relief from product liability claims in certain circumstances related to the COVID-19 pandemic. The PREP Act may provide liability immunity related to the manufacture, testing, development, distribution, administration and use of medical countermeasures in certain circumstances, including epidemics and pandemics.

Supply Chain Issues

2023 expects to see continued disruptions to global supply chains.

• Access to critical materials will be a challenge in 2023 as inflation continues to plague the US dollar and increase prices of a range of goods.
• Geopolitical tensions, including the Russia-Ukraine war and increased tensions between the US and China, both directly and indirectly impact global supply chains without a foreseeable conclusion. Limitations to key manufacturing inputs, such as semiconductors, and the fluctuation of key commodity prices, such as grain from Ukraine, will continue to impact global markets.
• Increased activities by cyber-criminals continue to plague businesses around the world. Issues of cybersecurity and reassessing cyber-risk and related exposures to businesses and supply chains are expected to continue to increase.
• Extreme weather events and other systemic changes that have been attributed to climate change are projected to continue and are likely to lead to other production and supply chain challenges.

These factors, and others, have shifted thinking towards locally sourcing more manufacturing.