USA Trends and Developments Contributed by: Gregory Ulmer, James Phillips and Ryan Walton, BakerHostetler
BakerHostetler BakerHostetler 811 Main Street Suite 1100 Houston, TX 77002 USA
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Nuclear Verdicts and the Expanding Concept of the “Product” The nuclear verdict landscape is a product liability story The modern “nuclear verdict” phenomenon – jury awards exceeding eight and increasingly nine figures – has reached record levels, with product liability cases consistently among the most heavily impacted cat - egories. Product cases not only generate a significant share of nuclear verdicts but also exhibit some of the most dramatic growth in verdict size. Median verdicts in product liability matters have increased sharply over the past decade, with non-economic damages fre - quently eclipsing economic loss and serving as the primary force multiplier. These cases reflect not sim - ply larger numbers but a deeper shift in how juries evaluate corporate conduct, risk allocation and moral responsibility. Several structural features make product cases par - ticularly vulnerable to nuclear jury outcomes: • the moral framing of corporate choice versus con - sumer harm, which encourages jurors to view injury as the result of decisions rather than accidents; • design-defect narratives that invite hindsight evalu - ation of safety tradeoffs, often untethered from the engineering constraints known at the time; • the availability of punitive and quasi-punitive themes, even when punitive damages are not for - mally sought or available; and • the ability to rhetorically aggregate harm across users, incidents, time periods or populations, even in single-plaintiff cases.
In recent years, these dynamics have produced headline-making verdicts across an increasingly wide range of industries, including chemicals, consumer products, industrial equipment, pharmaceuticals and – now – technology platforms and digital tools. This environment matters because it changes litiga - tion incentives. Plaintiffs’ counsel are rewarded for framing cases around safety decisions and corpo - rate foresight. Defendants, by contrast, face pressure to settle defensible cases simply to avoid volatility. Against this backdrop, the expansion of product-style reasoning into software and AI litigation carries out - sized significance. The Shrinking Importance of Formal “Product” Status Historically, strict product liability was bounded by relatively clear doctrinal lines. Tangible goods dis - tributed for use or consumption could trigger strict liability; services and intangibles generally could not. This distinction allowed software developers and digi - tal service providers to exit cases early by arguing that, whatever the alleged harm, it did not arise from a “product”. That distinction is now eroding. Courts are increas - ingly less concerned with categorical labels and more focused on function and user experience. See In re Social Media Adolescent Addiction / Personal Injury Prods . Liab . Litig ., 753 F.Supp.3d 849, 880 (N.D. Cal. 2023–2024) (rejecting defendants’ categorical argu - ment that social media platforms are not “products” as a matter of law and instead analysing alleged defects on a feature-by-feature basis, focusing on design, functionality and user experience).
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