A new report found product liability cases that aren’t already in multidistrict litigation reached their highest level since 2013, with 5,826 filed in 2022.
With the exception of a dip in 2021, most likely due to the COVID-19 pandemic, the number of product liability cases steadily rose for seven years, according to Lex Machina’s 2023 Product Liability Litigation Report, released on Thursday.
“A lot of it is driven by medical and pharmaceutical litigation,” Ron Porter, lead author of the report, said. “We’re just seeing a number of products and devices be the subject of widespread litigation.”
Many of the cases are consolidated in specific venues, such as the Southern District of Illinois, which is home to lawsuits against Abbott Laboratories over anti-seizure medication Depakote, and the Northern District of Texas, where C.R. Bard Inc. faces litigation over its IVC filters, according to the report.
“That is an attempt to create sort of a non-MDL consolidated litigation for strategic purposes,” Porter said. “What we’ve seen in the product liability area, with the Depakote cases, and the cases in Texas involving Bard, we also noted it in our antitrust report, where there seems to be an effort to create this consolidated litigation outside of the MDL framework.”
With 3,197 total cases filed since 2017, the Southern District of Illinois was the top district for product liability cases, which also include lawsuits filed over Syngenta Corp.’s paraquat herbicide.
‘It’s Kind of Remarkable’
The report defines product liability cases as those brought in federal courts in which a party seeks compensation for an injury caused by a defect in a product.
Those cases coordinated in multidistrict litigation remained steady over the same period, with the exception of 2020 and 2021, which had a substantial increase in lawsuits over 3M’s combat earplugs. The earplug multidistrict litigation, in Florida’s Southern District, had more than 240,000 cases, the largest docket in the country. 3M agreed on Aug. 29 to settle the lawsuits for more than $6 billion.
In addition to medical device and pharmaceutical cases, which include those over Johnson & Johnson’s talcum powder, other product liability lawsuits in the report involve defects of aircraft and vehicles, as well as asbestos. While much smaller in number, cases over vehicle defects have tripled since 2013, with 1,514 filed in 2022, most of which the report attributed to removed breach-of-warranty cases.
Different law firms topped the report’s rankings, when compared with Lex Machina’s previous product liability report, released in 2020. Among plaintiffs firms, Chicago-based Meyers & Flowers was No. 1 in product liability cases outside multidistrict litigation, with 2,072 lawsuits filed from 2018 to 2022. At No. 2, Walkup, Melodia, Kelly & Schoenberger, based in San Francisco, filed 2,027 during that same period.
On the defense side, Kirkland & Ellis took a commanding lead with 3,069 cases. Among other product liability cases, the firm represented 3M in the earplug litigation.
“We have a deep bench of trial lawyers across the country with first-chair experience defending clients in product cases in many different industries,” Andrew Kassof, a Chicago partner who serves on the executive committee at Kirkland & Ellis, said. “Our work in this space has grown rapidly in recent years, and that trend has continued this year.”
Porter said one surprising finding in the report was the millions of dollars in damages awarded from product liability verdicts during the pandemic years: in 2020, nearly $240 million, and in 2021, about $134 million. Damages during each year were higher than in 2022, when 48 verdicts totaled less than $93 million.
“Some could be default judgment awards, but, typically, it’s the result of a trial, or some other judgment on the merits,” Porter said. “So, really, it’s kind of remarkable given the extent to which the pandemic affected the ability of the courts to operate in person to still have 27 judgment damage awards in 2020 and 40 in 2021.”