USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers Graham and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
cally injured by a product if they were in the “zone of danger” and witnessed someone else being injured. 2.3 Time Limits for Product Liability Claims The time limits within which an action may be brought depend on the cause of action and jurisdiction. Stat - utes of limitations can range from one to six years. Some states have specific statutes for bringing a product liability action. In the absence of such a stat - ute, the time limit for the cause of action controls this. Most states have adopted the discovery rule, which means that the statute of limitations will not begin to run until the plaintiff discovers, or reasonably should have discovered, the injury, cause and/or wrongful conduct of the defendant. There is variation in the application of the discovery rule among the states that have adopted it. Many states require discovery of the injury and cause to trigger the statute. Other states require only that the plaintiff discover the injury. Cer - tain states require that the plaintiff discover the facts essential to prove each element of the cause of action. 2.4 Jurisdictional Requirements for Product Liability Claims State Court Jurisdiction To maintain a suit against the defendant, the court in which the case is brought must have personal jurisdic - tion over the defendant. Personal jurisdiction includes both general and specific jurisdiction. General jurisdiction A state court has general jurisdiction to hear all claims over a party where it is incorporated or has its prin - cipal place of business in that state. In 2023, the US Supreme Court in Mallory v Norfolk Southern Railway Co , 600 US 122 (2023) held that state statutes requir - ing consent to general jurisdiction as a condition for doing business in that state do not violate due pro - cess. The court’s ruling opens up the potential for corporations to be sued in any state in which they conduct business. Specific jurisdiction Specific jurisdiction only allows a court to hear a par - ticular case against a party. The US Supreme Court in Bristol - Myers Squibb Co v Superior Court of Califor- nia , 582 US 255 (2017) clarified the scope of specific
jurisdiction. Specific jurisdiction requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State” (id at 264). Multi-plaintiff product actions with non-resident plaintiffs face juris - dictional hurdles when they are brought in courts of states where the defendant is not headquartered or incorporated and where the alleged incident did not occur. In 2021, the US Supreme Court further delineated where lawsuits can be filed under the doctrine of per - sonal jurisdiction. The court held that plaintiffs could file suit against a defendant where the defendant had cultivated and served a market in a state, even if there was no direct link between the product causing the injury and the forum state ( Ford Motor Company v Montana Eighth Judicial District Court et al , 592 US 351, 362 (2021)). Federal Court Jurisdiction Federal courts have “federal question” jurisdiction over cases arising under the US Constitution, federal laws or treaties (28 USC Section 1331). Federal courts also have “diversity jurisdiction” in cases where each plaintiff is from a different state or foreign country than each defendant and the amount in controversy exceeds USD75,000 (28 USC Section 1332 (d)). In diversity jurisdiction, the federal court where the suit is filed must have specific jurisdiction over at least one party. If federal jurisdiction prerequisites are not met, claims must be brought in the state court that has jurisdic - tion. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims In general, there are no pre-action requirements to bring a product liability claim. Many jurisdictions, however, require a party asserting a warranty claim to provide the opposing party reasonable notice of the breach of warranty upon discovering the breach (UCC Section 2-607). The notice requirement exists to pro - vide the allegedly breaching party with an opportunity to cure the breach. The notice requirement is typically not a prerequisite for bringing a breach of warranty claim, but the failure to provide reasonable notice may
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