At DLA Piper’s Fourth Annual Product Liability Symposium, panelists shared key insights related to the new European Union Product Liability Directive (PLD), which will come into effect in December 2026.
The conversation featured In-House Counsel Sarah Heineman (Senior Assistant General Counsel-Bayer Global Litigation, Bayer US LLC) and DLA Piper Partners Chris Campbell (Atlanta), Mary Elizabeth Gately (Washington, DC), and Mariana Ricardo (Lisbon). It was moderated by DLA Piper Senior Associate Dani Morrison (Philadelphia).
Below, we provide the following key takeaways from the discussion.
1. The PLD expands liability. The PLD differs from the “old” EU product liability framework in a few key aspects, including the following:
- The definition of “products” has been expanded to include software, artificial intelligence (AI) systems, and digital manufacturing files, in addition to opening the possibility for refurbished products to be treated as new products under the law.
- There is now a presumption of defect that defendants must rebut, effectively reversing the burden of proof.
- Psychological damages are now recognized, as well as damages for destruction or corruption of data.
- The limitations period for latent injuries has been extended from 10 to 25 years.
In navigating this changing litigation landscape, companies are encouraged to seek local counsel with deep knowledge of EU Member State legislative and regulatory frameworks.
2. The best defense is a good offense. Some plaintiffs’ firms are increasingly coordinating their litigations and have in recent years used litigation funding to grow their global product liability and class action presence. A cohesive global litigation strategy that accounts for potential product liability and class actions may be beneficial at the outset of any new litigation. Steps may be taken to identify the use of litigation funders, which is now an industry valued over USD21 billion, because their backing fuels the filing of baseless cases and prolongs litigation. Early case management orders requiring proof of use and injury may be sought to weed out unsupported claims. Companies are encouraged to retain experts early on who can help understand the science, develop an expert bench, and ensure a unified science narrative across jurisdictions.
3. In-house counsel are integral to the proactive mitigation of risk. Even before litigation begins, in-house counsel are tasked with thinking globally about potential litigation risk. Three key suggestions were made on this point:
- Conduct training with in-house strategic partners on responsible communications throughout the year.
- Stay abreast of the differences in regulatory regimes across jurisdictions to advise on narrative consistency regarding any variations.
- Remain aware of marketing practices in the jurisdictions where a product has market authorization to advise on consistency with those campaigns.
Although the PLD is growing product liability risk worldwide, a unified global strategy implemented early can help keep the focus clear.
[View source.]
