CD: Reflecting on recent months, what trends and developments have you observed impacting manufacturers and the product liability risk they face?

Spilker: One major development that has impacted manufacturers is the rapid development of technology. It is both promising and challenging for manufacturers. On the one hand, manufacturers are able to utilise technology to further develop their products and capabilities. On the other, the development of ‘smart’ products often leads to different and more complex causes of product liability. One of the most recent examples is autonomous driving. There are many potential liability risks arising from the advent of autonomous driving, as demonstrated by the recent accidents involving autonomous Uber and Tesla vehicles. The development of ‘smart’ tech is particularly demanding for manufacturers. More complex and connected interactions between ‘smart’ products require companies to develop an evolving level of technical knowledge, which must be implemented and observed by manufacturers. Non-implementation or non-observation may lead to serious product liability risks, as in many jurisdictions design and monitoring obligations are key duties of manufacturers, which must comply to avoid product liability cases.

Smith: The variety of product liability claims continues to expand, as plaintiffs increasingly pursue new industries and new kinds of product liability claims. For example, in recent months plaintiffs have continued to expand litigation against the automotive industry. From air bag and ignition switch claims to emissions litigation, plaintiffs have increased the number and type of claims filed against automobile manufacturers and expanded the scope of the litigation faced by this industry. Likewise, plaintiffs continue to expand the scope of product liability litigation alleging economic losses. While traditionally plaintiffs have pursued claims for personal injury, increasingly plaintiffs seek to obtain payment for alleged product defects that they claim decrease the value of products they have purchased.

Jul-Sep 2018 issue

Bird & Bird

Deloitte Financial Advisory Services LLP

Kirkland & Ellis LLP

Shook, Hardy & Bacon LLP

Skadden Arps Slate Meagher & Flom LLP