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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Generally, in order to file a lawsuit in the United States, a plaintiff must plead the essential facts to make a prima facie case under whichever theories of liability he or she is proceeding. That pleading takes the form of a complaint, which must be served on defendant(s) in the manner required by the local rules where the case is filed. Perfecting service of the complaint on defendant(s) initiates the lawsuit. In order for a court to take up a product liability claim, it must have both personal and subject matter jurisdiction.

Under Federal Rule of Civil Procedure 11, all pleadings must be signed by at least one attorney of record. The signature certifies that:

  • it is not being presented for any improper purpose;
  • the claims, defences and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying or reversing existing law or for establishing new law;
  • the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
  • the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

Courts may issue interlocutory orders or judgments in certain product liability cases. Federal Rules of Civil Procedure 54(b) applies to judgments and 28 US Code Section 1292 applies to interlocutory orders.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

Generally, written discovery requests in the form of interrogatories, requests for production and requests for admission are available. Interrogatories are written questions used in discovery to obtain information from the other party. Each interrogatory must be answered separately and fully in writing under oath, unless it is objected to. The objecting party must state the reasons for objection.

A request for production is a request to produce and permit the requesting party or its representative to inspect, copy, test or sample items in the responding party’s possession, custody or control. It may also be a request to permit entry onto designated land or other property possessed or controlled by the responding party.

A request for admission is a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26.02 of the Federal Rules of Civil Procedure.

Some states and federal courts require parties to submit initial disclosures of relevant information and documents without waiting for a request from an opposing party. 

Oral depositions are another key discovery tool. They may be exclusively used for discovering facts about the case or, in some jurisdictions, be used as a substitute for trial testimony.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may obtain discovery regarding any non-privileged matter which is relevant to the subject matter involved in the pending action, whether it relates to:

  • the claim or defence of the party seeking discovery; or
  • the claim or defence of any other party.

The information sought need not be admissible at trial, but must be reasonably calculated to lead to admissible evidence.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

Under Rule 702 of the Federal Rules of Evidence, the court may appoint an expert to assist in examining the merits of a case. If scientific, technical or other specialised knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, then a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:

  • his or her scientific, technical or other specialised knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
  • the testimony is based on sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the expert has reliably applied the principles and methods to the facts of the case.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Under Rule 702 of the Federal Rules of Evidence, parties can rely on expert witness testimony to support his or her claims if:

  • the knowledge is based on sufficient facts, data or opinions;
  • there are sufficient assurances of trustworthiness for the theory;
  • the explanative theory was applied in accordance with proper procedures;
  • the witness is qualified as an expert by his or her knowledge, skill, experience, training or education to provide such knowledge; and
  • the knowledge assists the trier of fact to understand the evidence or determine a fact in issue.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Product liability class actions are permitted under Rule 23 of the Federal Rules of Civil Procedure and applicable state court equivalents. However, collective proceedings are permitted under the Federal Labour Standards Act and do not apply to product liability claims.

Class actions are a procedural mechanism by which a large group of similarly situated plaintiffs may attempt to prosecute a lawsuit based on common claims as a class, instead of individually, as long as certain preconditions are met. A class representative or named plaintiff takes an active role in pursuing the class action claims on behalf of the entire class. Federal Rule of Civil Procedure 23 identifies the circumstances in which class treatment is appropriate in federal courts.

The class action mechanism is designed to simplify litigation involving large numbers of individuals with closely similar claims and encourage uniform decision(s) for the claims. Other benefits afforded claimants in class actions include:

  • providing a group remedy for the class without the cost and delay of multiple separate lawsuits (this is particularly important where individual monetary claims are relatively low, making it unlikely that plaintiffs would proceed individually); and
  • providing the class with more bargaining power than they may have as individuals.

For class actions certified under Federal Rule of Civil Procedure 23(b)(3), class members must be given the right to opt out of the class action. If a class member falls within the definition of a certified Rule 23(b)(3) class and does not affirmatively opt out, that person automatically becomes a class member generally bound by the outcome of the litigation. However, for class actions certified under Federal Rule of Civil Procedure 23(b)(1) and 23(b)(2), class members are not given the right to opt out.

Appeals

What rules and procedures govern appeals of court decisions?

The Federal Rules of Appellate Procedure govern procedure in US courts of appeals. Most states have their own set of appellate rules and procedures that are listed for the public on the state’s websites.

Statute of limitations

What is the statute of limitations for filing product liability claims?

The time limit for filing product liability claims varies by state and is often dictated by statute. The statute of limitations generally ranges from two to four years after the cause of action accrues, depending on the type of action.

Timeframe

What is the typical duration of proceedings in product liability cases?

There is no set timeframe for the length of a product liability case. Each case will vary depending on:

  • the complexity of the matter;
  • the amount of discovery;
  • the time required to try the case; and
  • the nature of the court’s docket.

While many cases settle before trial, most last for several years.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

Under the American rule each party pays their own legal fees regardless of who prevails. Although it differs by state, there are statutory exceptions where the prevailing party can recover legal fees from the losing party.

What rules and restrictions (if any) govern contingency fee arrangements?

Contingency fees are permitted in product liability actions. They are usually governed by the state’s rules of professional conduct. Generally, contingency fees range between 25% and 40% of the judgment.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party litigation funding is a relatively new concept in the United States. If it exists, laws governing third-party litigation funding vary by state, often focusing on the doctrines of champerty and maintenance and rules regulating attorney conduct. Third-party funding of all types of product liability cases – from individual actions to large multi-district litigations and class actions – is a rising phenomenon in the United States.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

Every state makes certain provisions for legal aid to indigent claimants. However, the use of contingency fees has reduced the need for legal aid in product liability claims. Access to legal aid varies by state.

Settlement

What rules and procedures govern the settlement of product liability cases?

Court approval is required for settling certain types of cases such as class actions, wrongful death and cases involving minors or incompetent individuals.

Further, federal law confers subrogation rights to the government when Medicare or Medicaid beneficiaries enter into settlement with an alleged tortfeasor. The law sets mandatory reporting requirements for settling beneficiaries, which plaintiffs and defendants must follow to avoid the statutory penalty of treble damages.

States’ comparative negligence laws can complicate settlement of claims in cases involving joint tortfeasors.

How common are settlements in product liability cases?

Settlements are common in product liability cases. Many variables influence settlement trends and values in product liability cases, including:

  • recent jury verdicts involving similar products;
  • venue;
  • stage of litigation; and
  • case type (eg, single plaintiff or mass tort).

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

ADR methods including negotiation, mediation and arbitration are available and utilised in product liability cases in state and federal courts.

Federal Rule of Civil Procedure 26(f) requires parties to discuss the possibilities for promptly settling or resolving the case at their initial conference.

Further, many jurisdictions’ local rules authorise courts to mandate mediation between the parties.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

Parties regularly engage in ADR in cases pending in jurisdictions that mandate mediation and sometimes voluntarily choose to engage in various forms of ADR.

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