There have been two recent significant product liability cases in the US which have involved products which are common place in the UK market.
The first involves talcum powder manufactured by Johnson & Johnson. In July, a jury in Missouri awarded a group of 22 Claimants $4.7bn (£3.6bn) in compensation and punitive damages following a claim that use of the talcum powder caused them to develop ovarian cancer, as the products contained asbestos.
The second involves a jury decision in San Francisco where Dewayne Johnson was awarded $298m (£233m) after the jury found that regular use of the commonly used weed killer, Roundup, caused him to contract non-Hodgkin lymphoma, leaving him with only months to live. In his role as a groundskeeper and pest manager at a school in Benicia, he sometimes had to spray the herbicide on school grounds for several hours a day. Both Johnson & Johnson and the manufacturers of Roundup, Monsanto (now owned by Bayer) intend to appeal the respective decisions.
The Court system in the US allows a jury to reach first instance decisions on both liability and damages. This is markedly different to how civil cases are determined in the United Kingdom, namely by a Judge sitting without a jury. Whilst a Judge is not necessarily unsympathetic to the stories that Claimants outline in Court, they are expected to weigh up the evidence impartially and in a dispassionate manner. In comparison, the jury system in the US can lead to awards being significantly affected by the highly emotional nature of Claimants’ predicaments.
In the absence of clear scientific evidence to establish a causal link between the products and the injuries alleged, it is highly doubtful that either case would succeed in the UK. As matters stand, it appears that there is insufficient scientific evidence for both.
However, the impact of such court decisions in the US can be felt reputationally on the marketing of those products in the UK. Following the Roundup case, despite Monsanto’s assurances and the fact an appeal is to follow, at least one major UK retailer has reviewed their sales of the product. B&Q have confirmed that they are reviewing all of their garden products and that they already offer alternatives to weed killers which contain glyphosates, the chemical alleged to have caused Mr Johnson’s cancer.
In the UK, claims of this sort would be determined under the strict liability regime set out by the Consumer Protection Act 1987 (CPA) or in tort for negligence. A claim under the CPA would need to establish that the product in question was defective in failing to meet the level of safety consumers are generally entitled to expert, and that any such defect caused injury. Causation would also be an essential part of a negligence claim. In the absence of scientific evidence to establish a causal link between the use of talcum powder products or glyphosates and the development of cancer when used in accordance with any instructions/recommendations that apply to the product, it is difficult to see how either case could proceed successfully.
The cases do, however, highlight the importance of vigilance. Where scientific studies reveal new concerns over a product, manufacturers should review whether any remedial or protective action is required and/or whether warnings or guidance accompanying their products should be updated.