USA Trends and Developments Contributed by: Gregory Ulmer, James Phillips and Ryan Walton, BakerHostetler
Conclusion The convergence of nuclear verdict dynamics and the expanding treatment of AI and digital services as products is already under way. Whether or not a particular technology satisfies a traditional product definition, courts and juries increasingly ask a simpler question: Should this have been designed differently ? For companies operating in high-exposure spaces, the message is clear. If technology behaves like a product in the real world, it is increasingly likely to be judged like one in the courtroom – under verdict dynamics that reward moral clarity over technical nuance. In an era of nuclear verdicts, that reality must inform both design decisions and litigation strategy from the outset.
From a risk perspective: • treat consumer-facing AI features as potential product components; • document safety rationales and design tradeoffs with jury audiences in mind; • involve legal and insurance stakeholders early in product development; and • evaluate warnings and safeguards not merely for formal adequacy but for practical effectiveness. From a litigation perspective: • anticipate design-defect framing even in nominally service-based cases; • narrow claims early by cleanly separating content- based allegations from architectural ones; • develop affirmative narratives explaining why safety choices were reasonable at the time made; and • prepare early to manage the anchoring effect in damages, before nuclear numbers enter the jury’s frame of reference.
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