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01 June 2020

Product liability case filings in US federal courts reach eight-year high

Shook Hardy & Bacon and Weitz & Luxenberg top product liability firm rankings over last five years

By Ben Edwards

Product Recall written on road sign

Some 56,041 cases were filed last year in US federal district courts, 29% more than in 2018 and the highest total since 2011 Gustavo Frazao/Shutterstock

The number of product liability case filings in US federal district courts hit an eight-year high in 2019, continuing a trend that has been accelerating since 2015, according to a new report from Lex Machina.

Some 56,041 cases were filed last year, 29% more than in 2018 and the highest total since 2011, the data show. When stripping out multi-district litigation (MDL) filings, the trend was even more noticeable—totalling 5,267 cases, the highest over the 10-year period the report analysed and well above the 10-year average. 

Speaking on a LexMachina webinar, Alicia Donahue, co-chair of Shook, Hardy & Bacon’s product liability litigation practice, said: “Why I think we’re seeing an uptick in non-MDL cases is because federal courts are getting better and better at complex litigation such that in many cases an MDL isn’t required anymore, even when there is a signifiant volume of cases.”

Shook, Hardy & Bacon was the most active defendants’ firm for product liability cases between 2015 and 2019, working on 27,240 cases. Faegre Drinker Biddle & Reath was the second most active with 26,684, while Nelson Mullins Riley & Scarborough was a distant third with 11,498 cases.

The most active defendants over the same period excluding MDL cases were Johnson & Johnson (1,429 cases), Abbot Laboratories (1,197) and Ford (973). MDL cases are typically heavily skewed towards medical and pharmaceutical companies, said Ron Porter, Lex Machina’s product liability legal data expert.

Gary Wolensky, chair of Buchalter’s product liability practice group, who specialises in defencing automative companies in product liability cases, said the reason there has been a rise in filings over the last few years is because the economy has been booming, therefore more vehicles are being sold and more vehicles are on the road, resulting in more incidents and accidents.

The most active firms for plaintiffs over the same period were Weitz & Luxenberg, with 6,848 cases, followed by Beasley, Allen, Crow, Methvin, Portis & Miles with 6,469 and Aylstock, Witkin, Kreis & Overholtz with 6,401.

Excluding MDL cases, claimants won in 174 instances — 96 of those by trial. Defendants won in 840 cases, with summary judgments accounting for 578 of those.

Over the last five years, more than $1.2bn was paid out in punitive damages, more than any other damage type. That was followed by Class Action Settlement damages, with almost $744mn awarded. In 2019, total damages awarded were $132m, the lowest annual total since 2013 when just $57m was paid out.

Further reading

US Federal District Court case activity slows amid Covid-19 crisis, Lex Machina analysis finds — At least 287 cases filed this year were confirmed as a direct result of the pandemic

Fisher & Phillips, Gordon & Rees top US trade secrets litigation firm rankings in 2019 — Total amount of damages awarded last year rises by almost half to $105m, Lex Machina report shows

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