Insights

A trend in product liability litigation has emerged over the past few years: Plaintiffs’ attorneys are increasingly choosing to bring class actions based on “economic loss” instead of the more traditional personal injury claim.

Legal departments are making recovery—the practice of proactively pursuing the payment of funds owed to them—a regular part of their operations. They have typically focused on recouping funds from other companies over issues such as IP, antitrust, financial services, and health insurance. But now some are using recovery techniques to mitigate losses stemming from product recall and warranty issues. In addition to mitigating losses, a formal recovery program can help to establish clear supplier expectations and drive desired behaviors.

In the product liability arena, a growing number of multi-plaintiff trials are finding their way into consolidated litigation, including multidistrict litigation (MDL). Many see this bundling of plaintiffs as confusing to juries. But a number of courts are open to the strategy—and that is creating challenges for defendants.

"A trend to watch in the coming year is the growth of technology-based products and possible litigation risks, including both potential privacy and product liability claims," says Cheryl Falvey, co-chair of Crowell & Moring's Advertising & Product Risk Management Group and former general counsel of the Consumer Product Safety Commission (CPSC). Products are becoming smart and interconnected, she says, "and these developments are raising questions about how the new technologies fit into the more traditional product liability laws."