Subject: State-of-the-Art

Florida Courts of Appeal Scrutinizing Punitive Damages Claims

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It is not uncommon for a product liability plaintiff to base a claim for punitive damages on little more than the same allegations that undergird a strict liability or negligence claim, while adding that the defendant knew that the product was unsafe or that the warnings were inadequate and marketed the product regardless. While that approach has worked at times in the past, recent decisions from Florida’s Third and Fourth District Courts of Appeal remind us that Florida imposes a high bar on punitive damages claims. Specifically, these courts highlighted several key points related to claims of punitive damages in product liability cases: (1) Florida’s statutory requirements for punitive damages are more stringent than some other states (specifically, California) and, therefore, orders from other states awarding punitive damages are unpersuasive; (2) Florida law presumes a product is not defective if it complies with applicable government regulations; (3) the level of negligence required to plead punitive damages in Florida requires conduct equivalent to establishing criminal manslaughter; and (4) the Florida Supreme Court has all but eliminated punitive damage awards in product liability cases. These cases are discussed in further detail below.

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Ten Things to Know About the European Union’s New Product Liability Directive

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After it was initially proposed more than two years ago, the European Union passed a new product liability directive (PLD) on Dec. 9, 2024, which prescribes a new legislative framework to expand and modify product liability laws created by the current PLD (originally enacted in 1985). As with other EU directives, the PLD sets legislative and policy goals that the EU’s 27 member states are obligated to implement into national law. For the PLD, they must do so within two years — by December 2026.

The new PLD was presented during the legislative phase as a modernization of pre-Internet Age laws from the 1980s. But beneath that exterior, the new PLD makes various substantive changes that are likely to increase litigation risk and costs for companies doing business in Europe. These changes will impact not only manufacturers of consumer products traditionally subject to product liability law, but also other businesses such as technology and software companies, which will be subjected to product liability law for the first time.

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New EU Product Liability Directive Published in Official Journal

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The countdown has begun towards the transformed European product liability landscape! The recently adopted European Union Product Liability Directive (PLD) was published in the Official Journal of the European Union today. Transposition of the PLD into domestic law of the EU member states must be completed by December 9, 2026. As we previously discussed, products put on the market after December 9, 2026, will be subject to the new PLD, while products placed on the market prior to this date will be subject to the laws currently in place.

Further information about the new PLD (including new risks and opportunities for businesses operating in the EU) can be found in our previous updates here and here. Faegre Drinker will continue to monitor developments as the member states transpose the PLD and the new rules take shape.

Affirmative Defenses; Collective Redress Directive; Discovery

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On October 10, the European Council adopted the European Union’s new Directive on Liability for Defective Products (PLD). The Council’s adoption of the new PLD represents a momentous step towards a complete restructuring of the EU’s product liability landscape as it will replace the current 40-year-old directive and soon become the EU’s new governing regime. The new PLD will enter into force 20 days after its publication in the Official Journal of the European Union. Thereafter, member states will have two years to transpose the directive into national law. Alongside the new Representative Actions Directive implemented last year, the product liability legal landscape is in the process of a great transformation in Europe.

Read the full article on the Faegre Drinker website.

Failure to Fully Disclose Expert Opinions Results in Summary Judgment

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Federal Rule of Civil Procedure 26(a)(2) requires retained expert witnesses to provide an expert report which gives “a complete statement of all opinions the witness will express and the basis and reasons for them.”  Fed. R. Civ. P. 26(a)(2)(B)(i).  If a party fails to disclose information required under Rule 26(a)(2), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”  Fed. R. Civ. P. 37(c)(1).  As a plaintiff in the Western District of Washington recently learned, failure to adhere to Rule 26 can be fatal to a case.

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