Industry and sector developments, risks, and tips to consider in 2025
Multiple industries are facing common challenges in the product liability and class action space. These may include (1) discovery obligations leading to copycat litigation on an international scale, and (2) an expansion of traditional tort liability concepts, including what constitutes a defect and the negligence standard of care.
In this article, we outline key takeaways on these topics from DLA Piper’s third annual Product Liability Symposium, and preview-related points that will be addressed at the fourth annual Product Liability Symposium on September 9, 2025.
Top points from the 2024 Symposium
- Monitor jurisdictions with nuclear verdicts and litigation areas with increasing settlements. According to the US Chamber of Commerce, from 2013 to 2022, product, automotive, and medical liability cases accounted for two-thirds of all nuclear verdicts, with median verdicts of $21 million. For product liability cases alone, there was a 50-percent increase. The drivers for these figures are multifaceted. In 2021, $2.8 billion was spent on litigation funding – and this number has only increased. From 2021 to 2023, there was a 65-percent likelihood that federal class action cases would settle, with most non-multidistrict litigation (MDL) federal class actions taking between 1.5 to 5 years to resolve. For companies with revenues exceeding $1 billion, the average litigation spend in 2023 was $3.9 million. Panelists in 2024 provided insights regarding communications between plaintiffs’ counsel and company investors, evidencing an intent by the plaintiffs’ bar to maximize potential settlement value at the outset of litigation.
- Manage discovery during government investigations early and closely. An increasing number of industries, including automotive and pharmaceutical, have been the subject of recent government investigations. At least 61 percent of corporate counsel reported that their company was involved in a regulatory proceeding in 2023. Plaintiffs are using this activity to obtain pre-complaint discovery to file complaints that are more likely to survive a motion to dismiss and copycat litigation in multiple jurisdictions. The panelists from 2024 discussed how their outside counsel could get ahead of this trend with appropriately drafted protective orders and early custodial collection conversations. The panelists encouraged the use of the General Data Protection Regulation (GDPR) and related regulations that provide privacy protections. They also recommended that outside counsel enforce narrowly tailored discovery.
- Continued expansion of traditional tort liability concepts. During the 2023 Product Liability Symposium, panelists discussed how modern courts are grappling with the question of “What is a product?” in the context of software and the use of artificial intelligence (AI). At the 2024 Symposium, we expanded on that discussion, focusing on how technological innovation is impacting the definition of defects and the standard of care in negligence cases. The panelists emphasized the value of consistent generative AI use across business functions. Additionally, where technology is an integral feature of a product, such as wireless features in an automobile, warning language that accounts for technological changes may be beneficial.
Tips for businesses to consider in 2025
- Seek advice and counsel prior to litigation. Companies may find it beneficial to seek advice and counsel before liability issues reach court. Outside counsel often has access to judges and regulators from multiple jurisdictions, providing knowledge and context about the ever-changing litigation landscape. This access may help their clients stay informed of new issues, arguments, and areas of scrutiny, enabling companies to implement proactive, rather than reactive, measures.
- Engage global coordinating counsel. Involvement in multijurisdictional investigations and litigation often calls for global coordinating counsel. Such counsel can help foster consistent messaging across jurisdictions, allowing businesses to leverage local counsel’s knowledge without creating inconsistent arguments.
- Remember the mission. A company’s main focus is not on litigation, but rather on delivering its product to the consumer. Litigation expenses can significantly affect a company’s budget and inhibit the development and marketing of its products.
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