{"id":136986,"date":"2026-04-02T09:38:20","date_gmt":"2026-04-02T09:38:20","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=136986"},"modified":"2026-04-02T09:38:20","modified_gmt":"2026-04-02T09:38:20","slug":"united-states-product-liability","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/united-states-product-liability\/","title":{"rendered":"United States: Product Liability"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-136986","comparative_guide","type-comparative_guide","status-publish","hentry","guides-product-liability","jurisdictions-united-states"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">The Lanier Law Firm<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/03\/lanier.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">The Lanier Law Firm<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/03\/lanier.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Product Liability laws and regulations applicable in United States<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the main causes of action upon which a product liability claim can be brought in your jurisdiction, for example, breach of a statutory regime, breach of contract and\/or tort? Please explain whether, for each cause of action, liability for a defective product is fault-based or strict (i.e. if the product is defective, the producer (or another party in the supply chain) is liable even if they were not individually negligent).<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Product liability actions typically are based on theories of strict liability, negligence, and\/or breach of warranty. Depending on the applicable state\u2019s law, a claimant may also be able to assert other tort claims based on defective products, including fraud, negligent misrepresentation, and claims under state consumer-protection statutes. A few states have also adopted Restatement (Second) of Torts \u00a7 402B, under which defendants engaged in the business of selling any type of chattel that make material misrepresentations regarding the character or quality of that chattel are strictly liable for physical harm to consumers caused by justifiable reliance upon the misrepresentations. As a general rule, aside from strict liability and breach of warranty claims, most product liability causes of action are fault-based.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is a \u2018product\u2019 for the purpose of the relevant laws where a cause of action exists?  Is \u2018product\u2019 defined in legislation and, if so, does the definition include tangible products only?  Is there a distinction between products sold to, or intended to be used by consumers, and those sold for use by businesses?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Restatement (Third) of Torts: Products Liability defines \u201cproduct\u201d as follows: \u201c(a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement. (b) Services, even when provided commercially, are not products.\u201d RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. \u00a7 19(a)-(b) (1998). However, many states have product liability statutes that may define \u201cproduct\u201d differently, so it is important to review the law of the forum from which the case arises.<\/p>\n<p>Generally there is no distinction between causes of action based on products for consumers versus products for professionals\/businesses, although there are some defences that may apply in the context of certain products for professionals\/businesses (e.g., learned intermediary doctrine, sophisticated user defence) that are unlikely to apply to products sold directly to ordinary consumers.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Who or what entities can bring a claim and for what type(s) of damage? Can a claim be brought on behalf of a deceased person whose death was caused by an allegedly defective product?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Any individual or entity that has suffered an injury in fact caused by a defective product can bring a claim. Depending on the cause of action(s) asserted, the claimant can recover for physical injuries, mental or emotional injuries, harm to property, and\/or economic losses. There are two types of actions that may be brought on behalf of a deceased person. In a survival action, the administrator of the decedent\u2019s estate asserts the decedent\u2019s own cause of action seeking damages for the decedent\u2019s losses, including the decedent\u2019s pain and suffering. In a wrongful death action, the spouse, parents, or children of the decedent sue for their own losses resulting from the decedent\u2019s death. Each state has its own wrongful death statute and some of these statutes limit who can assert such claims.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What remedies are available against a defendant found liable for a defective product? Are there any restrictions on the types of loss or damage that can be claimed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The types of compensatory damages recoverable in a product liability action vary by state. Typically they include past and future economic damages (e.g., medical expenses, lost earnings, etc.) and noneconomic damages (e.g., pain and suffering, physical impairment, permanent disability). Some states have statutory caps on the amount of noneconomic damages that can be recovered. In many states, a claimant may not recover purely economic damages under a tort theory unless he or she also suffered physical injury or injury to property. The spouse of the injured party may also have his or her own loss of consortium claim for the monetary value of the deprivation of the benefits of married life (e.g., society, companionship, etc.) caused by the defendant. Some states also allow loss of consortium claims by the parents or children of the injured party. In most states, punitive damages are recoverable for strict-liability product actions. Typically, the claimant must demonstrate an egregious level of misconduct by the defendant (e.g., fraud, malice, gross negligence, etc.) by a heightened evidentiary standard (i.e., clear and convincing evidence). In some states there are statutory caps on punitive damages. Moreover, any punitive damage award cannot be so grossly excessive that it violates due process.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">When is a product defective?  What must be shown in order to prove defect?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>With a strict liability claim, the focus is on the condition of the product itself, rather than the reasonableness of the defendant\u2019s conduct. A product may be defective because of (i) a flaw in the manufacturing process, (ii)\u202finadequate instructions or warnings, and\/or (iii) a defect in the product\u2019s design. The claimant typically must demonstrate that (i) the product was defectively manufactured, designed, or marketed, (ii) the defect existed at the time it left the defendant\u2019s possession, and (iii) the defect caused the claimant\u2019s injuries. Additionally, in some states, to prevail on a product liability action based on defective design, the claimant must also prove that there existed a safer alternative design, which (i) was economically and technologically feasible for the manufacturer at the time the product was designed and produced, (ii) would not have materially affected the product\u2019s utility, and (iii) would have prevented or reduced the claimant\u2019s injuries.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Which party bears the burden of proof?  Can it be reversed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The claimant bears the burden of proof on the elements of its claim, while the defendant bears the burden of proof on the elements of any affirmative defences. In some states there may be circumstances where the burden of proof on a particular element of the claim shifts to the opposing party, but this is rare.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What factors might the court consider when assessing whether a product is defective?   To what extent might the court account for a breach of regulatory duty, such as a breach of a product safety regulation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Among other things, the court may consider whether (i) the alleged defect existed at the time the product left the defendant\u2019s control, (ii) the product reached the user without a substantial change in the condition in which the product was sold, (iii) the defective condition was unreasonably dangerous, (iv) the product was unsafe for its intended use, (v) there is a feasible, safer alternative design, (vi) the defect was open and obvious, and\/or (vii) the product was misused, and if so, whether that misuse was foreseeable. The extent to which a product\u2019s compliance or noncompliance with applicable regulations is taken into account varies by state. In some states, there is a rebuttable presumption that a product was not defective if it complied with applicable regulations. In other states, the fact that the product complied or did not comply with applicable regulations is simply evidence for the trier of fact to consider.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Who can be held liable for damage caused by a defective product?  If there is more than one entity liable, how is liability apportioned?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Manufacturers are subject to liability based on the products they manufacture. In many states, nonmanufacturing sellers, retailers, suppliers, and\/or others within the chain of distribution may also be held liable under product liability theories. Although a few states automatically impose joint-and-several liability in product liability cases where multiple defendants are found liable, most states apportion a defendant\u2019s liability based on the percentage of its responsibility. Joint-and-several liability may still be available, however, if the claimant can demonstrate that the defendants acted in concert with each other.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What defences are available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The availability of particular defences depends on the applicable state law and the product liability theories asserted. Some of the more common defences include: Assumption of Risk: This defence may apply when the claimant used the product despite being aware of the defect and associated danger. In some states, the claimant is completely barred from recovery under these circumstances, while in other states the claimant\u2019s damages will be reduced in proportion to the degree of his or her own fault. Product Misuse: This defence may apply when the claimant used the product in a manner not reasonably intended or foreseen by the manufacturer or seller. Substantial Alteration: This defence may apply when the product was substantially altered or modified after it left the manufacturer\u2019s possession and such alteration or modification caused the claimant\u2019s injury. State of the Art: This defence may apply if the product conformed to the level of scientific and technical knowledge considered to be \u201cstate of the art\u201d at the time of its design, manufacture, or sale. Depending on the applicable state, a state-of-the-art product may (i)\u202fprovide a complete bar to liability, (ii) create a rebuttable presumption that the product is not defective, or (iii) merely be one of many factors to be considered by the jury. Government-Approved Products\/Compliance with Government Standards or Regulations: In some states, the fact that a product complies with applicable government standards and regulations, or was approved by a governmental agency such as the FDA, may provide a complete defence against recovery or a rebuttable presumption that the product is not defective. Learned Intermediary Doctrine: Under this doctrine, manufacturers of prescription drugs or medical devices satisfy their duty to warn if they provide adequate warnings to the prescribing physician. Sophisticated Intermediary Defence: Similar to the learned intermediary doctrine, this defence allows a supplier to discharge its duty to warn if it (i) adequately warns the product\u2019s immediate purchaser (the intermediary), or sells to a sophisticated purchaser that the supplier knows is or should be aware of the specific risks, and (ii) reasonably relies on that intermediary to convey the appropriate warnings to downstream users. Sophisticated User Defence: Under this defence, a manufacturer is not liable for failing to warn a sophisticated user of its product if that user knew or should have known of the risk or danger associated with the product.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the relevant limitation period(s) for bringing a claim? Does a different limitation period apply to claims brought on behalf of deceased persons?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The limitation periods vary by state. Typically, strict liability claims are subject to a 2- or 3- year statute of limitations, but in some states it can be as little as 1 year or as many as 6 years. A strict liability claim generally accrues when the claimant discovers, or by the exercise of reasonable diligence should have discovered, the causal connection between the product (or the defendant\u2019s conduct) and the injuries suffered. In some states, the statute of limitations may be tolled for an inherently unknowable injury or when there has been fraudulent concealment of the claim. The statute of limitations for a wrongful death claim will vary depending on the particular state\u2019s wrongful death statute. For survival actions, the statute of limitations is typically the same as it would have been had the decedent not died.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent can liability be excluded, if at all?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In many states, a defendant will not be held liable for failing to warn of an open and obvious danger associated with its product. Some states have adopted comment k to Restatement (Second) of Torts \u00a7 402A, which immunizes manufacturers and sellers of certain unavoidably unsafe products, such as prescription drugs, from strict liability if the products were properly prepared and accompanied by sufficient directions and warnings. Additionally, various federal statutes preempt certain product liability claims. For example, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. \u00a7 301 et seq., preempts state law claims against generic drug manufacturers based on inadequate drug warnings. Similarly, the Medical Device Amendments of 1976, 21 U.S.C. \u00a7 360c, preempts state common-law claims based on the design, labeling, and manufacture of Class III medical devices that have undergone the rigorous premarket approval process mandated by the statute.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any limitations on the territorial scope of claims brought under a strict liability statutory regime?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A product liability action must be brought in a court (i) in which there is proper venue, and (ii) in a state in which the defendant is subject to personal jurisdiction. Personal jurisdiction can be general or specific. General jurisdiction exists when the defendant is \u201cat home\u201d in the forum state, such as the state(s) in which a corporate defendant is incorporated or has its principal place of business. Under those circumstances, the defendant can be sued in that state regardless of where the events forming the basis of the action occurred. Specific jurisdiction exists when (i) a non-resident defendant has purposefully availed itself of the privilege of conducting activities in the forum state, or has purposefully directed its conduct into the forum state, and (ii) the plaintiff\u2019s claim arises out of, or relates to, the defendant\u2019s conduct in the forum state. The court in which the action is brought must also be located in a proper venue. There are often multiple venues in which the plaintiff can bring an action. For example, plaintiffs can typically sue in any judicial district in which (i) the defendant does business, (ii) the plaintiff resides, or (iii) the events giving rise to the action occurred. Even when an action is brought in a proper venue, if that venue is inconvenient to the parties or witnesses, the court may transfer it to another proper venue that is more convenient.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What does a claimant need to prove to successfully bring a claim in negligence?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>When asserting a product liability claim under a negligence theory, the claimant typically must prove that he or she was injured as a result of the defendant\u2019s failure to act reasonably in designing, manufacturing, marketing, or selling the product. In some states, a product manufacturer may owe post-sale duties to warn or to remedy defects if it learns of defects or dangers associated with the product after it has been sold.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In what circumstances might a claimant bring a claim in negligence?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>As with strict liability claims, claimants can bring negligence claims based on manufacturing defect, design defect, and\/or failure to warn. In some states, claimants may also be able to assert claims based on negligent misrepresentation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What remedies are available?  Are punitive damages available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The types of compensatory damages recoverable in a negligence-based product liability action vary by state, but are typically the same as the types of compensatory damages recoverable in a strict-liability product action (discussed above). In most states, punitive damages are recoverable for negligence-based product liability actions, so long as the claimant can demonstrate a more egregious level of misconduct by the defendant than mere negligence (e.g., fraud, malice, gross negligence, etc.), typically by a heightened evidentiary standard (i.e., clear and convincing evidence). In some states there are statutory caps on punitive damages. Moreover, any punitive damage award cannot be so grossly excessive that it violates due process.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If there are multiple tortfeasors, how is liability apportioned?  Can a claimant bring contribution proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Although a few states automatically impose joint-and-several liability in product liability cases where multiple defendants are found liable, most states apportion a defendant\u2019s liability based on the percentage of its responsibility. Joint-and-several liability may still be available, however, if the claimant can demonstrate that the defendants acted in concert with each other. The ability for a defendant to seek contribution from other tortfeasors varies by state.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any defences available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Many of the same defences available for strict liability claims (discussed above) are available for negligence claims. It varies by state and occasionally a defence may apply to a negligence claim but not to a strict liability claim (or vice versa). Additionally, most states have adopted the principles of comparative negligence. Some of these states apply pure comparative negligence, under which a claimant\u2019s damages will be reduced in proportion to his or her own degree of fault. In those states, even if the claimant is 99% responsible, he or she can still recover 1% of the damages. Other states apply a modified version of comparative negligence, under which a claimant will be barred from recovery if his or her own percentage of fault exceeds a specified threshold (e.g., 50%). A few states, however, still apply contributory negligence principles, under which the claimant is barred from recovery if he or she is determined to be even minimally responsible for his or her own injuries.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the relevant limitation period(s) for bringing a claim?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The limitation periods vary by state and by type of claim. Typically, negligence claims are subject to a 2- or 3-year statute of limitations, but in some states it can be as little as 1 year or as many as 6 years. Negligence claims generally accrue when the claimant discovers, or by the exercise of reasonable diligence should have discovered, the causal connection between the product (or the defendant\u2019s conduct) and the injuries suffered. The limitations period for misrepresentation claims also vary by state, but are typically between 2-6 years. Misrepresentation claims typically accrue when the deception is, or should have been, discovered. In some states, the statute of limitations for negligence or misrepresentation claims may be tolled for an inherently unknowable injury or when there has been fraudulent concealment of the claim.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent can liability be excluded, if at all?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Many of the same exclusions that apply to strict liability claims (discussed above) also apply to negligence-based product liability claims. Liability for misrepresentation claims typically can also be excluded if the claimant cannot demonstrate justifiable reliance, or, with negligent misrepresentation claims, if the defendant did not owe a duty to disclose.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do the laws governing contractual liability provide for any implied terms that could impose liability where the product that is the subject of the contract is defective or does not comply with the terms of sale?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Contract-based product liability claims can be asserted for breach of express or implied warranty. Warranties are typically governed by the Uniform Commercial Code (or derivations thereof as adopted by a particular state). When a seller makes an affirmation of fact or promise to induce a buyer to purchase a product, which then becomes part of the basis of the bargain and on which the buyer relies, an express warranty is created that the goods conform to the affirmation or promise. Such a seller can be held liable for a breach of that express warranty causing injury to the claimant. There are also two types of implied warranties associated with the sale of goods: an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. Under the implied warranty of merchantability, a defendant can be held liable if it sells a product that is not fit for the ordinary purposes for which such goods are used. The implied warranty of fitness for particular purpose, on the other hand, concerns the specific use for which the buyer requires the product, rather than the ordinary purpose for which it is used. A seller can be held liable under this theory if it has reason to know the particular purpose for which the product is required and that the buyer is relying on the seller\u2019s skill or judgment to select or furnish suitable goods.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What remedies are available, and from whom?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Warranty claims are typically brought against manufacturers, wholesalers, or sellers for compensatory damages, although certain claims may be contractually limited to the repair or replacement of the nonconforming goods or parts.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What damages are available to consumers and businesses in the event of a contractual breach?  Are punitive damages available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Damages for breach of warranty may include the loss resulting from the seller\u2019s breach and\/or the difference between the value of the accepted goods and the value they would have had if they had been as warranted. In some circumstances, incidental and consequential damages may be recoverable, including for injuries to person or property proximately resulting from the breach. Punitive damages are not typically available.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent can liability be excluded, if at all?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Liability may be excluded to the extent certain defences (discussed below) apply. Additionally, a defendant cannot be held liable for breach of the implied warranty of merchantability if it is not a \u201cmerchant\u201d (i.e., someone that regularly deals in goods of the kind involved or otherwise has a professional status with regard to the goods involved, such that it could be expected to have specialized knowledge or skill peculiar to those goods).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any defences available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Depending on the state and claim asserted, defences may include where the warranty has been disclaimed, failure to provide timely notice of breach, and\/or lack of horizontal or vertical privity.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please summarise the rules governing the disclosure of documents in product liability claims and outline the types of documents that are typically disclosed.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Document disclosure is governed by the Federal Rules of Civil Procedure in federal court, or by state procedural rules in state court. Parties generally may obtain discovery regarding any nonprivileged matter that is relevant to any party\u2019s claim or defence. The court may limit certain discovery requests to the extent they are unduly burdensome or unreasonably cumulative\/duplicative. The types of documents that may be obtained include writings, drawings, graphs, charts, photographs, sound or video recordings, images, and other data or data compilations.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How are product liability claims usually funded?  Is third party litigation funding permitted in your jurisdiction and, if so, is it regulated?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Most defence attorneys charge an hourly rate. Some plaintiffs\u2019 attorneys also charge an hourly rate, but more often they will work under a contingency fee arrangement. Under this type of arrangement, the attorney is paid a percentage of any financial recovery at the end of the case. If the claimant loses the case, the attorney receives no legal fees. There are also expenses that are incurred in any litigation. Many attorneys will advance the funds to pay these expenses with the understanding that these costs will be reimbursed out of any financial recovery received by the client. Third-party funding is permitted in some states and forbidden (or severely restricted) in others. A number of states have passed legislation regulating third-party funding.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can a successful party recover its costs from a losing party?  Can lawyers charge a percentage uplift on their costs?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The general rule is that each litigant must bear its own litigation expenses, and a successful litigant may only recover the actual, reasonable costs of the action from the opposing party if (i) a statute permits awards of costs, (ii) a valid contract or stipulation provides for costs, or (iii) rules concerning damages permit recovery of costs. Uplift fees are not typically used in the United States, since contingency fee agreements are so prevalent. Whether an uplift fee is permissible will likely depend on the particular state\u2019s law.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can product liability claims be brought by way of a group or class action procedure?  If so, please outline the mechanisms available and whether they provide for an \u2018opt-in\u2019 or \u2018opt-out\u2019 procedure.  Which mechanism(s) is most commonly used for product liability claims?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The most common type of product-liability-related group action is multi-district litigation (MDL). In an MDL, multiple lawsuits filed by different parties in different courts involving one or more common issues of fact are consolidated for pre-trial proceedings, including discovery, before a single judge. MDL proceedings are commonly used when a defective product or line of products causes injury to a large number of consumers. Once pre-trial proceedings are finished, if there has been no global resolution of claims, the MDL court will remand the cases to the courts in which they were originally filed for trial. Cases that fall within the purview of the MDL, including those filed in other courts after the MDL is created, are typically transferred to the MDL court and will remain there until the case is either resolved or remanded. Class actions are another type of product-liability-related group action. In a class action, a single lawsuit is filed by a large number of claimants who have suffered similar harm by the same defendant(s). There are a number of requirements that must be satisfied in order for a lawsuit to be certified as a class action, including, but not limited to, that the class is so numerous that joinder of all members is impracticable and there are questions of law or fact common to the class. Because class certification requires that the class members have suffered a common injury, most product-liability class actions involve claims in which the defect decreased the value of the product itself or when the claimants paid an inflated price for the product based on misrepresentations. Any claimant can opt-out of a class action. Finally, under the rules of civil procedure, a court may consolidate multiple product liability actions that present common issues of law or fact for pre-trial proceedings and\/or trial. As consolidation occurs pursuant to court order, the parties may object but cannot unilaterally opt out.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please provide details of any new significant product liability cases in your jurisdiction in the last 12 months.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Eighth Circuit Court of Appeals recently emphasized the correct legal standard that must be applied when a U.S. defendant moves to dismiss an action brought by a foreign citizen under the doctrine of forum non conveniens. Dibble v. Torax Med., Inc., 148 F.4th 601 (8th Cir. 2025). In Dibble, a U.K. citizen sued a Minnesota-based medical device manufacturer and its parent company in a federal district court in Minnesota. The plaintiff had been implanted with the device in the U.K., but later had the device surgically removed in Colorado. Arguing that the case should be litigated in the U.K., the defendants moved to dismiss the lawsuit under the forum non conveniens doctrine, which is intended to ensure that a trial is held in a convenient forum. The district court granted the motion and dismissed the lawsuit. The Eighth Circuit held on appeal that the district court erred by viewing all evidence outside of Minnesota as weighing in favour of the U.K. Rather, the district court should have analysed the issue by looking at all contacts between the case and the entire United States. The Eighth Circuit reversed and remanded the case back to the district court so that it could conduct a new forum non conveniens analysis using the correct legal standard.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any policy proposals and\/or regulatory and legal developments that could impact the current product liability framework, particularly given the advancements in new technologies and increasing focus on the circular economy?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>As more product liability cases are being filed against social media companies and other creators of digital platforms, there has been an increasing focus on the scope of \u00a7 230 of the Communications Decency Act on 1996. This statutory provision generally immunizes websites and digital platforms from lawsuits arising from the content posted by third-party users. Although tech defendants consistently assert \u00a7 230 immunity as a defence in product liability cases, courts are increasingly rejecting this argument where the plaintiff can show harm from the defendants\u2019 algorithm design choices. Legislators on both sides of the aisle have criticized the reach of \u00a7 230 (although for different reasons), and several U.S. Supreme Court Justices have expressed the view that the provision is often being used improperly as a \u201cget-out-of-jail free card.\u201d This increasing focus on \u00a7 230 may lead to legislative changes to the statute (either through amendment or repeal), or new judicial interpretations of the statute\u2019s reach by the courts.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What trends are likely to impact upon product liability litigation in the future?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>There has been an increase in product-liability cases based on digital technology (e.g., apps, social media platforms, AI chatbots, etc.), raising the question of whether or not such technology constitutes a \u201cproduct\u201d that can be the subject of product-liability claims. While some courts have found digital technology to be sufficiently analogous to tangible products to form the basis of a product-liability claim, other courts have disagreed, finding it more analogous to a service. Before bringing such a claim, plaintiffs will need to research the most recent state law applicable to their claims, particularly in states with product-liability statutes containing narrow definitions of a \u201cproduct.\u201d<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">4869<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/136986","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=136986"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}