Key Takeaways
This year, the highest appellate courts in Washington, California, and West Virginia are set to rule on critical tort law issues. These cases could set important precedents and influence the strategies of parties on both sides in product liability litigation in those states and beyond.
State supreme court decisions continue to shape product liability law. As covered in Re:Torts, we capped off 2024 with an Ohio Supreme Court decision holding that the Ohio Product Liability Act abrogated product-related public nuisance claims in the state. In 2025, several state supreme court cases are poised to have a similarly broad impact.
First, in Erickson v. Pharmacia LLC, the Washington Supreme Court will address choice-of-law issues in connection with the Washington Product Liability Act (“WPLA”), including whether and when plaintiffs can pursue punitive damages claims. Plaintiffs allege injuries from exposure to polychlorinated biphenyls (“PCBs”) made by defendants and used in fluorescent lights in a Washington school. Defendants appealed a $185 million jury verdict, including on the ground that the trial court misapplied choice-of-law principles, allowing plaintiffs to side-step the WPLA’s 12-year statute of repose and Washington’s policy against punitive damages.
On the statute of repose, the intermediate appellate court agreed that “when WPLA provides the applicable law on liability, WPLA’s statute of repose is not subject to a separate choice-of-law analysis because it is a claim-defining limitation on liability.” Erickson v. Pharmacia LLC, 548 P.3d 226, 235 (Wash. Ct. App. 2024), review granted, 556 P.3d 1098 (Wash. 2024). On the availability of punitive damages, however, the appellate court held that the choice-of-law analysis can proceed separately from liability. Id. at 247. The court held that Missouri, which permits punitive damages and was the home of the defendant manufacturer, has a greater interest in deterring the alleged conduct. Id. at 248. It reasoned that plaintiffs may seek punitive damages based on Missouri’s “more significant interest” so long as “Missouri’s product liability law prohibits the same conduct as prohibited by WPLA.” Id. at 249. The issues are now before the Washington Supreme Court, which heard argument on February 11, 2025. With punitive damages awards often dwarfing compensatory awards, and statute of repose issues potentially dispositive, the decision is likely to affect the direction of pending and future cases under the WPLA.
Second, in Gilead Tenofovir Cases, the Supreme Court of California will address challenges to a novel expansion of manufacturer liability for negligence predicated on a “duty to innovate.” Plaintiffs allege injuries from defendant’s FDA-approved HIV treatment and claim defendant breached a duty under California law to more rapidly develop and seek FDA approval of an allegedly safer alternative medication. We addressed the issue on appeal in more detail here. The Court took up the appeal last year and it is now fully briefed and ripe for oral argument.
Finally, in City of Huntington, West Virginia v. Amerisourcebergen Drug Corp., the U.S. Court of Appeals for the Fourth Circuit has asked the Supreme Court of Appeals of West Virginia to decide whether and when distribution of a controlled substance like prescription opioids can constitute a public nuisance under West Virginia common law. In 2022, a federal judge ruled in favor of the defendant distributors. The plaintiff-municipalities appealed to the Fourth Circuit Court of Appeals, which certified the public nuisance question to the state’s highest court. City of Huntington, W. Virginia v. AmerisourceBergen Drug Corp., 96 F.4th 642 (4th Cir. 2024). The Court heard oral arguments in late January 2025, and its decision will likely further shape efforts by plaintiffs to pursue broad nuisance theories against manufacturers and distributors of opioids and other products that may affect public health.
