Is America’s Mass Tort Nightmare Coming to Europe?

London finance and restructuring partner Buvini Kularatne authored an article titled “Is America’s Mass Tort Nightmare Coming to Europe?” for Global Turnaround which discusses the European Union’s new Directive on Liability for Defective Products (PLD).

Kularatne noted that the PLD is intended to serve as an update to the EU’s product liability framework to meet the demands of the digital age. She notes that the PLD expanded “product” definitions to include digital services and software, including artificial intelligence. The directive also expands the number of potentially liable actors and bases for compensation, including damages for psychological health and destruction of certain data. Most notably, Kularatne said, the PLD introduces a new burden of proof framework, which shifts the burden of proof from claimants to defendants through (rebuttable) presumptions, in some circumstances, of defectiveness and causation. 

While it remains to be seen how European courts will wield the PLD, Kularatne said companies considering its impact should undertake early and proactive analysis to determine if and where they might be vulnerable to mass claims. 

“Claimant firms are likely to take a coordinated, cross-border approach so potential defendant companies should be similarly cohesive and strategic in their defenses,” she noted. 

The full article is available to Global Turnaround subscribers.