76 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 77 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C Defendants Remain Strong against an Increasing Docket of Product Liability Cases It is no secret that the number of product liability cases has skyrocketed in recent years – increasing 89% since 2015. And 2022, the most recent year of available data, saw more product cases filed in federal court than any other year in recent U.S. history (see nearby chart for more data). The plaintiffs’ bar has also been particularly aggressive in the past five years, bringing more than 25,000 federal product liability suits, as well as nearly 500,000 MDL-associated cases. In that same timeframe, court damages awards increased 177% from the prior five years – and settlement figures are reportedly growing exponentially. Despite the seeming onslaught of new and complex matters, product liability defendants have proven equal to the task. Corporate defendants won 83% of product liability cases resolved on substantive grounds – the majority of which on dispositive motions. At trial, they prevailed more often than not. To best prepare companies to continue this winning streak, we now look ahead to predict what the coming years of product liability cases will hold. Look Out For Interim Agency Decisions The FDA currently authorizes phenylephrine for use as an over-thecounter decongestant. But in September 2023, an FDA advisory committee (one of its 49) issued an interim and non-binding finding that although phenylephrine is safe, it is an ineffective decongestant when delivered orally. Wasting no time, plaintiffs brought more than 20 federal class action lawsuits in the four short months that followed. This is an ironic turn of events in the products liability space as pharmaceutical companies have increasingly utilized phenylephrine in decongestants to provide consumers with a safer alternative to pseudoephedrine, another decongestant ingredient that Product Liability David Singh Co-Head Silicon Valley david.singh@weil.com Diane Sullivan Co-Head Princeton & New York diane.sullivan@weil.com P R O 8,000 6,000 4,000 2,000 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 PRODUCT LIABILITY CASES FILED FROM 2013 TO 2022 (EXCLUDING MDL ASSOCIATED CASES) Source: Lex Machina Product Liability Litigation Report 2023
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