Year End Review: 2023 Product Liability Developments

This Baker Sterchi year-end review focuses on significant 2023 jury verdicts and decisions in product liability cases, primarily in the Midwest (more specifically Illinois, Kansas, and Missouri). It also addresses noteworthy U.S. Supreme Court and national cases. Here is a non-exhaustive rundown of product liability cases that deserve attention, and some cases and/or issues to watch for in 2024.

U.S. SUPREME COURT

1. General Personal Jurisdiction Expanded

To the dismay of corporate defendants, the Supreme Court has lowered the bar for establishing general personal jurisdiction.  Specifically, in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), the Court held that companies can be sued in states where they have registered to do business and do substantial business, even if the alleged injuries happened in other places.

In Mallory, a Virginia plaintiff sued his former employer, Norfolk Southern Railway, in Pennsylvania, where Norfolk was registered to do business, even though the plaintiff’s alleged injuries due to on-the-job exposure to toxic chemicals occurred in other places (Virginia and Ohio). The Pennsylvania Supreme Court dismissed the case, striking down Pennsylvania’s long-arm statute that gave the state courts jurisdiction over out of state corporations registered to do business there, holding that the statute violated defendants’ 14^th Amendment due process rights.   The U.S. Supreme Court granted certiorari, to address whether an out-of-state corporation that has registered to do business in the State (as required by law) and does substantial business there, is subject to personal jurisdiction in any lawsuits brought there, even though the alleged injury occurred elsewhere. The U.S. Supreme Court reversed the Pennsylvania Supreme Court ruling, holding that the state’s long-arm statute did not violate due process.

If you are reading this and thinking – where’s the product liability claim? – you are correct. There is none in this case, but the Court’s ruling is significant and will likely have far reaching effects in many different types of cases, including product liability matters. Mallory constitutes a departure from the Court’s previous test for general personal jurisdiction, as outlined in Goodyear Dunlop Tires Operations SA v. Brown, 564 U.S. 915 (2011). There, the Court had held that a corporate defendant was subject to such jurisdiction if its affiliations with the state were substantial enough to render them “essentially at home in the forum state,” which generally had not included simply being registered to do business in a state without further substantial contacts. Mallory appears to expand the general personal jurisdiction threshold, and open the doors to future fights over the application of general personal jurisdiction. 

However, defendants still have various avenues for defending against the jurisdictional over-reaching, depending on the specific language of state personal jurisdiction laws and how their courts interpret them.  Baker Sterchi wrote about the potential impacts in a blog earlier this year here. As discussed, it appears that the Illinois and Missouri corporate registration statutes do not act as consent to jurisdiction; thus, the Mallory case does not appear to change jurisdiction law in those states.  However, Kansas’ statute is premised upon consent through registration; thus, the Mallory case does appear to foreclose future challenges to jurisdiction on due process grounds.

2. Ghost Guns Must Be Traceable

In October 2023, the U.S. Supreme Court, in Garland v. Blackhawk Mfg. Group., Inc., vacated a Texas federal court’s order that had exempted two distributors of “ghost guns” (i.e., firearms without serial numbers) from a federal rule that would require the weapons be made traceable.  This means that companies must comply with the federal rule while its validity is taken up in the courts.

As background the U.S. Supreme Court granted the Biden administration’s emergency request to vacate the district court order, which would allow the subject distributors, Defense Distributed and Blackhawk Manufacturing Group Inc., to continue to sell ghost guns without complying with a new Bureau of Alcohol, Tobacco, Firearms and Explosives rule. The distributors argued that they would be “irreparably harmed” if required to comply – in this case, compliance would mean obtaining licenses, marking products with serial numbers, keep records of transactions, and perform background checks for all transactions. In a different lawsuit, an insurer has sought to deny coverage to a manufacturer accused of selling unfinished firearm frames to build ghost guns.  That litigation is ongoing, but also signals that legal issues surrounding ghost guns are only beginning.

MIDWEST COURTS (IL, KS, MO)

1. Illinois

a. Recalled Abbott Infant Formula MDL

While the Similac infant formula Multi-District Litigation involving Illinois company Abbott Laboratories remains ongoing in Illinois federal court, the economic claims of parents in the MDL were dismissed in May. In the MDL, parents brought suit against Abbott alleging that its baby formula caused a deadly illness in premature babies. Specifically, the plaintiffs alleged they were harmed economically due to purchasing the baby food, but the Court found that because the parents did not allege that all infant formula made by Abbott was contaminated or what percentage was contaminated, there could be no argument of lost benefit of the bargain.  In November, Abbott filed a further motion to dismiss, focusing on the plaintiffs’ unjust enrichment claim, arguing that it is not directly implicated in the MDL inasmuch as Abbott’s alleged actions benefited third-party resellers, as opposed to the company itself. That Motion is still pending. The MDL case is In re: Recalled Abbott Infant Formula Products Liability Litigation, case number 1:22-cv-04148, in the U.S. District Court for the Northern District of Illinois.

2. Kansas

a. Product Liability Claims Barred Due To Illegal Conduct

For the first time, a Kansas federal district court applied Kansas’ illegality defense to bar plaintiff’s product liability claims due to underlying illegal conduct of a decedent in a wrongful death case. Specifically, in Messerli v. Aw Distrib., Inc., the Court found that the illegality defense (in pari delicto) barred the claims where the decedent inhaled toxic vapors from computer duster canisters, which was also alleged in the complaint as a violation of Kansas law. The decedent’s father filed suit against four entities who designed and manufactured the computer dusters that the decedent allegedly and repeatedly inhaled until he died from intoxication.   Dismissing the case, the Court found that the complaint alleged that the decedent “freely and voluntarily consented to participate in” illegal acts prohibited by Kan. Stat. Ann. § 21-5712 and that the decedent’s illegal acts cause his injuries which had a casual connection to all of plaintiff’s causes of action.  Baker Sterchi wrote in detail about this case and its implications in both Kansas and Missouri here with an update here where the plaintiff was denied review of the dismissal.  However, the plaintiff may seek review at the Tenth Circuit.   

3. Missouri

a. $2.35 Million Verdict for Exploding Vaping Device

In St. Charles, Missouri, a jury awarded more than $2.35 million to a plaintiff in a failure to warn claim for injuries due to an exploding battery within his vaping device.  The plaintiff alleged that the battery was mislabeled and lacked a device to prevent it from overheating and that the manufacturer failed to warn about the hazard.  The defense had argued that the plaintiff failed to prove the battery caused the plaintiff’s injuries and failed to show evidence that the defendant was on notice of these issues.  The case is Bryan Durham v. Lightfire Holdings LLC, dba Kanger Wholesale USA, Case No. 1811-CC00938.

b. $1.25 Million Verdict in St. Louis Monsanto Roundup Case

Roundup litigation is no stranger to the product liability circuit, and in 2023, Monsanto has seen a number of favorable trial results.  But in October, a St. Louis jury awarded $1.25 million to a plaintiff claiming that his non-Hodgkin’s lymphoma was caused by exposure to Monsanto’s Roundup herbicide.  Monsanto claims that the product is safe.  Expect an appeal of John J. Durnell v. Monsanto Company, Case No. 1922-CC00221. Monsanto has been hit with other large verdicts across the country this year, including in Seattle, Philadelphia, and San Diego.

OTHER NOTABLE DECISIONS AND ISSUES ON THE HORIZON

1. “Forever” Chemicals

Forever chemicals, also known as “PFAS” (polyfluoroalkyl substances), have been a hot topic this year, as the U.S. Environmental Protection Agency has ramped up its action against these chemicals that are claimed to linger in the environment and the human body. In January 2023, the EPA proposed a ban on more than 300 PFAS. In March, the EPA proposed maximum levels for such chemicals in drinking water – only four parts per trillion.  In August, the EPA proposed listing various PFAS as hazardous substances under the Resource Conservation and Recovery Act.

Recently, the Sixth Circuit reversed class certification and ordered dismissal of the case of a statewide class of all 11.8 million people residing in the state of Ohio, who were alleged to have PFAS in their blood.  The Court of Appeals held that plaintiff did not properly allege standing because all his allegations were about “Defendants” as an undifferentiated group and he failed to allege that any particular defendant harmed him. The Sixth Circuit’s sentiments were made clear in the first three sentences of its Opinion: “Seldom is so ambitious a case filed on so slight a basis. The gravamen of Kevin Hardwick’s complaint is that his bloodstream contains trace quantities of five chemicals—which are themselves part of a family of thousands of chemicals whose usage is nearly ubiquitous in modern life. Hardwick does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.”

2. Social Media MDL

An MDL involving Facebook and several other social media platforms (including, Instagram, TikTok, and YouTube) is moving forward in the Northern District of California.  The MDL is a combination of at least 28 suits that were filed across 17 federal district courts in the United States, with potentially more related actions to come as tag-alongs in the future.  The plaintiffs allege that the defendant companies have purposefully made their respective social media platforms addictive to increase user engagement, which has been deleterious to young people’s mental health. The MDL case is In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047.

3. 3M Agrees to Pay $6 Billion to Settle Ear Plug Lawsuits

In August, 3M Company agreed to settle lawsuits, without admission of liability, brought by U.S. military veterans and service members making claims of hearing loss from using the company’s earplugs – in the total amount of $6.01 billion. Prior to this agreement, 3M unsuccessfully attempted to move the lawsuits into bankruptcy court. Read more here on the settlement and here for past BSCR blog posts on these lawsuits.

4. National Opioid Settlements

Various settlements have been reached in the nationwide opioid litigation, including with major corporate defendants Teva, Allergan, CVS, Walgreens, and Walmart. However, the nationwide opioid litigation remains pending against many different entities involved in drug manufacturing, distribution, marketing, and sales.

5. JUUL 2

JUUL, the manufacturer of vaping products, filed an application for a new vaping device, JUUL2.  Specifically, the company claims that this product has ways to prevent underage use and tampering with its pods.  JUUL had previously been under fire for allegedly increasing youth vaping, which resulted in the company pivoting to take measures to keep its products out of the hands of youths.  JUUL2 is only available in one flavor – tobacco – and the company claims it has a lower concentration of nicotine.

6. Tesla Autopilot Litigation

In California this year, Tesla successfully defended itself in state court lawsuits alleging that its vehicles’ Autopilot technology malfunctioned and caused serious injuries to the plaintiffs. The juries found no manufacturing defect in the Tesla Models at issue.  However, we can expect this Autopilot litigation to heat up in other jurisdictions across the country.

As you can see, the product liability legal docket was busy throughout 2023 and will continue to be in 2024. We will be watching and look forward to reporting back next year for a complete overview, but keep an eye out for Baker Sterchi’s periodic product liability blog posts on specific issues and cases throughout the year.