Product-Defect Verdicts Surge Amid Anti-Corporate Sentiment

The top five defective product verdicts of 2010 totaled $1.1 billion, continuing a surge that appears to reflect public anger over the recession and hostility toward corporations.

Following such events as the Gulf oil spill, sudden-acceleration suits against Toyota Corp. and bank foreclosure practices, “Jurors are more willing to believe that there was corporate wrongdoing that was intentional,” a plaintiffs’ lawyer told Bloomberg. “It’s easier to get people angry when they’re already brooding.”

Ten of the 50 largest jury verdicts last year were in product-defect cases, compared with five in 2009 and one in 2008, according to Bloomberg’s tally. There were 15 product-defect verdicts of $25 million or more in 2010, compared with seven in 2009.

Leading the way last year in product-liability cases was the $505.1 million verdict against Teva Pharmaceutical Industries, the Israeli drugmaker, and its U.S. distributor, in a Nevada case over a claim that packaging of its anesthetic propofol created a risk of contamination and led to the plaintiff’s hepatitis. Three other big product-defect cases were in smokers’ suits against tobacco companies, led by a $152 million award against Lorillard Tobacco Co.

The total of $1.1 billion for the top five product-defect cases was up from $620 million in 2009 and $408 million in 2008. “There hasn’t been any radical change in product-liability law to cause this,” said Victor E. Schwartz, a Washington attorney and litigation expert who represents companies. “It’s more atmospheric than legal.”

Will Kemp, a lawyer who represented the plaintiffs in the Teva case, suggested the trend also has something to do with defendants and their insurers being less inclined to settle cases. “When the recession started, everyone started to hold on to their money,” he said. “They’re making people try more cases.”

“It’s getting tougher and tougher to get cases settled,” agreed another plaintiffs’ lawyer. “The companies may be hoping for better results on appeal.”

In fact, big verdicts in product-liability suits often are reversed or reduced on appeal, or in post-trial motions. For example, the largest product-liability verdict in 2009, for $300 million against Philip Morris, was cut to $38.9 million by the trial judge and still is being appealed by the company.

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