The 2022 edition of this product liability survey, like those in years past, is intended to provide an overview of developments in our respective national product liability laws and assist counsel in developing product liability and risk minimisation strategies on a global and national level. It is true that the various national product liability regimes are increasingly becoming more uniform, and it is also true that there remain critically important differences in both the procedural and substantive laws that make each jurisdiction’s product liability regime unique. It would be helpful for anyone looking to interpret and apply these laws to seek advice from any of these well-qualified authors or other counsel specialising in those jurisdictions regarding any specific challenges posed by the product liability laws in their countries.
In this review, the authors take a forward-facing approach in this global overview to examine the effect of emerging technologies on the future of tort and product liability law. The pace of technological transformation has meant rapid changes in the global economy. The sharing economy has shifted how we travel, commute, purchase office space, make and obtain loans, and look for and market any number of goods and services. Internet platforms have become the focus of product liability attorneys, applying traditional product liability principles to websites that produce and host different types of content shared with millions of people around the world.
In the United States, many different factors have led to a changing landscape in product liability law. For example, an increasing number of product liability actions have arisen as consolidated multi-plaintiff cases, which some believe increases judicial efficiency. There also have been an increasing number of lawsuits brought by individual state attorneys general seeking to hold manufacturers of different products liable for harm caused to the larger populations of those states. An important example of this is the litigation against manufacturers of prescription opioids, which serves as a model for other litigations.
As emerging technologies continue to develop, additional continued product innovation, which provides fertile ground for future product liability action. Product sectors to watch include autonomous vehicles and other artificial intelligence technology, cannabis, perfluoroalkyl and polyfluoroalkyl substances (PFAS), social media products and other internet platforms, and smart devices.
Particularly in light of the covid-19 pandemic, healthcare and pharmaceutical companies have relied on emerging technologies to collect patient data, provide telemedicine appointments, and render treatment without a patient having to leave his or her home.
Some of the traditional mechanisms for assessing product liability may not be appropriate for these new technologies that blur the line between tangible products and as providers of mobile services. The potential poor fit of traditional product liability notions has – as outlined above – led to initiatives in both the European Union and United States to re-calibrate their existing regimes to change with the state of product liability theories.
In summary, global product liability legislation, regulation and, of course, litigation will continue to evolve and present new challenges not just for product manufacturers, but also for legislative and regulatory bodies.
In this volume, we provide a multinational overview of product liability law with a country-by-country summary of:
- their respective court systems, including the roles of lawyers, judges and juries, as well as the nature of trials or hearings;
- theories of recovery available for product liability claims (strict, tort, contract, fraud, etc) and potential defences;
- discovery procedures available – disclosure and document production requirements – and the role of experts and company witnesses; and
- primary means for assessing potential risks, such as the status of class actions, damage awards, fee arrangements and efforts to introduce or expand these types of access-to-justice provisions.
* The editors wish to acknowledge the invaluable contribution of Jae Hong Lee, Lincoln Wilson, Alison Cooney, Jenna C Newmark, Stefanie A Tubbs and Jordan Carpenter.