USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers Graham and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
tory standards is relevant to rebut a claim that the manufacturer’s conduct warrants the imposition of exemplary or punitive damages. 2.14 Rules for Payment of Costs in Product Liability Claims Under the “American Rule”, each party is typically responsible for bearing its own litigation costs. There are exceptions to this rule, many of which vary by state. Many state rules allow recovery of certain litiga - tion costs from the losing party. Certain state statutes may allow for recovery of attorney’s fees and litigation costs if a plaintiff prevails in a particular type of claim. For example, under the Massachusetts consumer protection statute (MGL c 93A), a breach of implied warranty is a per se violation of the statute entitling the plaintiff to their attorney’s fees and costs. The availability of “offers of judgment” under both the federal rules and certain state rules and statutes provides a potential avenue to recovering litigation expenses. Under Fed R Civ P 68, a party can make an offer of judgment to the other party at least 14 days before trial. If the opposing party rejects the offer and the final judgment is less than the offer, the opposing party must pay the litigation costs incurred by the par - ty making the offer incurred after the date of the offer. 2.15 Available Funding in Product Liability Claims Contingency fee arrangements are the typical man - ner in which injured plaintiffs pursue product liability claims. In these arrangements, the plaintiff’s counsel will receive a percentage of the award or settlement in addition to litigation expenses if there is a recovery. When there is no recovery, the lawyer receives no fee or reimbursement for expenses. Third-party litigation funding arrangements in which a non-party funds the lawsuit in exchange for a portion of any recovery con - tinues to be a growing trend in personal injury litiga - tion. 2.16 Existence of Class Actions, Representative Proceedings or Co-Ordinated Proceedings in Product Liability Claims Multi-district litigation (MDL) was created by statute and has as its primary purpose establishing a cen - tralised forum where related cases pending in federal
court are consolidated so that co-ordinated pretrial proceedings can occur in an efficient and effective manner. Pretrial proceedings include pretrial motions and discovery. The objectives for an MDL proceed - ing are many, and include reducing litigation costs through more efficient discovery, avoiding conflict - ing rulings and schedules among court proceedings, streamlining key issues and moving cases towards a resolution – either through trial, motions or settlement. State courts may permit consolidated proceedings involving similar claims of product defect. Class action proceedings are available in federal court if the prerequisites of Fed R Civ P 23 are met. Product liability and personal injury actions are rarely appropri - ate for class action proceedings because they require an individualised assessment of causation and injury, making it difficult to satisfy the requirements of Fed R Civ P 23. 2.17 Summary of Significant Recent Product Liability Claims Product Liability Claims Against Social Media Platforms Claims in federal and state courts directed at social media companies continue to gain momentum, as liti - gants seek to expand product liability legal theories to online platforms and applications. In March 2026, a California state jury in K . G . M . v Meta et al awarded compensatory and punitive damages to a plaintiff against two social medial companies in one of the first bellwether trials addressing this type of claim. The jury found that the defendants had designed plat - forms with features that were addictive, which were a substantial factor in causing the alleged harm. The legal issues were framed as a product liability design defect, and the jury was instructed not to consider the content that was actually observed by the plaintiff on social media platforms. The defendants are expected to appeal. This outcome is not binding in other cases, and litigants with similar claims will need to estab - lish that their alleged injuries are causally related to a social media platform and not other aspects of the litigant’s life. Other legal theories are being employed to attack social media platforms, including claims based on public nuisance. Also in March 2026, in New Mexico
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