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Product liability claims cover a range of situations where an individual has been injured due to a fault in a device. The scope of these claims is wide and can involve everyday objects such as e-cigarettes, toasters, cleaning products or medical devices. In a world of global trade the same products can be sold in many countries but, if injuries are suffered by those using the product, the legal action which can be taken and the sums of compensation likely to be awarded vary.

Roundup Weedkiller imageDewayne Johnson's case against Monsanto, in which he was awarded $289 million after successfully arguing that he had developed non-Hodgkin's lymphoma as a result of using Roundup weed killer, shows some of the differences between product liability claims in the USA compared to Scotland. These comparisons are only some of the ways that the process and outcomes can vary depending on the legal system in question.

One of the most notable aspects of this case, particularly to anyone familiar with compensation awards in the UK, is the high figure of damages which was awarded. This figure can be broken down into several parts, including past and future economic loss, and also a very large sum of punitive damages. In the USA, it is not uncommon to hear of large awards made against the manufacturers of products which have caused injury, and the punitive element of the damages can be the highest proportion of the award. The purpose of punitive damages is to punish or make an example of the manufacturer for their wrongdoing. The concept is not something which is known to the legal process in Scotland. Here, the purpose of a compensation payment is to compensate the individual for the losses they have or will incur, through pain and suffering, the support they require and through economic loss. The sum awarded will not exceed this amount.

While punitive damages is not a concept which is exclusive to product liability claims, it is a factor which can significantly influence compensation payments which are made to two individuals, who have suffered the same injury because of the same product, but in different legal jurisdictions. There are a number of other heads of loss which will also vary between jurisdictions contributing to the at times startling difference in awards.

Further, and long before quantification of damages is considered, there are a number of other variations between the process involved in pursuing product liability claims. The safety regulations and standards for products will vary  as a result of national or multi-national laws. The criteria which will have to be satisfied by the individual pursuing the claim to establish negligence or wrongdoing on the part of the manufacturer will also be set by national law. This means that while evidence, including scientific studies, may be the same, the outcome of a case may vary due to the obligations imposed on a manufacturer by a particular legal system and the evidential burdens and legal tests which must be satisfied by the individual bringing the claim.

The manner in which a decision is reached by the court also depends on the practices of the jurisdiction in question. In Scotland, civil cases, such as product liability claims, will most likely proceed before a single judge. It is possible to have a jury trial in a civil case but this is unusual. The damages awarded to Mr Johnson, and the determination of liability on the part of Monsanto, were made by a jury rather than a judge. In the USA it is still more common for a civil case to be heard by a judge than a jury but there have been more high profile instances of jury trials in product liability claims than we have seen in Scotland. Determining a case in this way has both advantages and disadvantages. For instance, it is understood that a jury may be more sympathetic to a pursuer and even award higher levels of compensation. On the other hand, there is some concern that a juror may not have the same capacity as a judge to follow technical evidence or apply complex legal tests. With many products it will be impossible to avoid the legal arguments and evidence becoming very complex.

A final feature of some legal jurisdictions, including the USA, which is not seen in Scotland, is the use of class actions to pursue product liability claims. While this was not a feature of this particular case against Monsanto, there are class actions in existence elsewhere in the USA in respect of the Roundup weed killer product. A class action involves a group of individuals pursuing a collective claim, where a limited number of the individuals are representatives of the group. This mode of pursuing a claim can be used when there are high numbers of pursuers and there are common legal or factual issues between them. This mode of pursuing a claim is provided for in the USA by federal law. In Scotland, no provision is made for class actions. In some product liability claims, the Scottish courts have allowed test cases to be nominated when there are a high number of claims arising from the same issues. However, this procedure is more one of case management than collective action and the cases are not conjoined formally. Unlike the well-established practices in the USA this is a developing area in Scotland and the effect on other claims of a decision in one case is not always clear.  

When comparing the product liability claim processes adopted in different jurisdictions it is possible to identify pros and cons of all features. It would be almost impossible to identify which combination would lead to the best system for ensuring justice for those who have been injured. However, it is clear that the various systems do lead to those in similar situations, in terms of their injuries and how these were caused, experiencing a different process and possibly even a different outcome. Should a case similar to Mr Johnson’s arise in Scotland its fate would certainly be far from pre-determined.

Blog by Amy Haughton, Solicitor

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