Trial Magazine

Big corporations work hard to avoid responsibility for harm done by defective products. In turn, we must be creative in representing our clients. If we approach litigation using standard tactics, our predictability makes defendants’ jobs easier. Seek out cutting-edge approaches to your products liability cases. Here are a few examples of what I mean.

For decades, §230 of the Communications Decency Act of 1996 protected internet providers from being sued for the content they published. Then, innovative trial lawyers figured out a new way to hold social media companies accountable for addicting adolescents to their platforms, often with grievous results. These plaintiffs claim that the social media platforms (which should rightly be thought of as “products”) use algorithms to constantly bring users back and send young people down dangerous rabbit holes, causing foreseeable and preventable harm.

Shifting the focus from the content to the method of delivery generated a sea change in thinking about the responsibility these companies owe to the health of the general public, and it is helping move plaintiffs past §230 immunity that has, for too long, emboldened tech companies in their pursuit of eyeballs on screens.

From the outset of your client’s case, think broadly: Are there international standards that might demonstrate the dangerous nature of the product (for example, the IARC Monograph in the Roundup litigation)? Might you have a fraud claim in addition to traditional products claims? We all remember the Volkswagen diesel engine fraud litigation. Is there any accompanying environmental harm that a manufacturer should be held to task for? In the opioid litigation, public nuisance claims were key to holding the drugmakers responsible. These are not your typical design defect or manufacturing defect claims, but they have all been deployed effectively in recent years to hold wrongdoers accountable.

Some courts have been expanding the scope of the duty to warn, requiring manufacturers to provide detailed warnings about potential risks, even those that are not immediately apparent. Consider whether the warnings that were provided are sufficient; often they are not. Did the manufacturer have a duty to provide updated warnings as new information became available or based on emerging scientific evidence?

Are there violations of federal or state regulations that could provide the basis for a common law claim? (In my state, the violation of any regulation can trigger a claim under California’s Unfair Competition Law.)

We must always be thinking about how to increase accountability for manufacturers while making the world a safer place.

We must always be thinking about how to increase accountability for manufacturers while making the world a safer place. AAJ has many resources that will help you succeed in your products liability cases. In this month’s Trial, read about confronting pretrial challenges to punitive damages (p. 22); holding e-commerce platforms accountable (p. 28); and mastering settlement negotiations (p. 46). Also, the Products Liability Law Reporter offers verdicts and settlements in a range of products cases to help you analyze potential claims and select experts (www.justice.org/pllr).

Plus, through the Products Liability Section, the Technology and Science Section, and the many AAJ Litigation Groups dedicated to specific products, you can share information with and learn from other plaintiff attorneys in a secure environment via list servers, business meetings, and CLE programs (www.justice.org/member-groups/sections; www.justice.org/member-groups/litigation-groups).

And AAJ Legal Affairs, Public Affairs, and State Affairs work strategically to protect consumers from dangerous products through legislative advocacy and a robust amicus curiae program.

The practice of law is not static. Let AAJ help get your creative juices flowing. Your opponents won’t know what’s hit them—or what to expect from you next.

Lori E. Andrus is a partner at Andrus Anderson in San Francisco and can be reached at lori.andrus@justice.org.