The Law Reviews

The Product Regulation and Liability Review

Edition 4

Published: May 2017Contents


Editors' Q&A

i)  What are the hot topics?

The advent of new technology continues to shape product regulation and liability law around the world, as industry, government and the courts wrestle with how to address safety issues raised by changing technology under the rubric of long-standing product liability frameworks. Autonomous vehicle technology is at the forefront of these new challenges. In the United States, the Department of Transportation and National Highway Traffic Safety Administration have recently issued a Policy Statement Concerning Automated Vehicles and a Federal Automated Vehicles Policy. New policies such as these must address the relationship between automated and human decision-making, and develop a system that protects consumer safety while still fostering innovation in the product space.

New technology has also raised novel issues of data integrity, privacy and security that must be addressed by industry and counsel dealing with product regulation and liability. The safe and effective use of products ranging from automobiles to medical devices is increasingly reliant upon hardware and software that is vulnerable to data breach, and data integrity is quickly becoming a new frontier for product liability law.

ii) Tell us about any key legal developments – recent or pending – and their international impact.

This summer witnessed the passage of landmark legislation and regulation impacting a broad swath of food and drug manufacturers in the United States. In May, for instance, the FDA issued a final rule that brought e-cigarettes within its regulatory authority for the first time. In July 2016, then  President Obama signed into law a bipartisan bill that establishes comprehensive federal labelling requirements for food products containing genetically modified organisms (GMOs) and prohibits states from enacting their own GMO labelling laws. These laws may augur similar laws in other jurisdictions around the world.

In a recent novel procedural ruling, a Texas federal judge permitted plaintiffs’ counsel to subpoena remote company witnesses to testify via live satellite link in the metal-on-metal hip implant multidistrict litigation brought against Johnson & Johnson. This is a significant departure from the presumptive rule that a trial subpoena may only command attendance within 100 miles of a person’s residence or place of employment. It is unclear whether this practice will become more prevalent and, if so, whether executives of product manufacturers residing outside the United States could be ordered to testify via contemporaneous video transmission at trials taking place thousands of miles away. 

iii) What are the biggest opportunities and challenges for practitioners and clients?

Product liability issues on multiple fronts continue to present new opportunities and challenges for practitioners and clients in this space. Increasingly, companies find themselves facing government investigations, qui tam whistle-blower actions brought under the False Claims Act, and product liability lawsuits brought in different venues, all by different interested parties and stakeholders, but all related to the same underlying products. Such a scenario presents significant challenges to companies and requires counsel with the platform and experience to properly address each front without negatively impacting the others. They also present opportunities for thoughtful and strategic management, and, potentially, for global resolution of product liability.

The escalating cost of litigation in American courts – driven in part by the permissive scope of civil discovery and the risk of sizeable jury awards – remains a recurring concern for international product manufacturers. For example, in June, Volkswagen agreed to pay up to US$14.7 billion to settle claims stemming from its installation of ‘defeat device’ software in certain vehicles to bypass emissions standards – the largest consumer automotive settlement in history