The DWF Excess Liability team continues to work with Insurers and US coverage counsel in relation to the liability and coverage issues arising from the US Opioid Litigation and PFAS Litigation.
Those issues include:
- whether damages for the general public harms of opioids or PFAS can be claimed against defendants in the respective industries via the legal theory of public nuisance;
- whether such damages are "on account of" bodily injury and property damage; and
- the application of "expected or intended" exclusions, "known loss" doctrines and reckless/ deliberate conduct, given the state of industry knowledge of the dangers of their products.
The team focuses on two recent classes of mass tort litigation which follow the same pattern, and raise many of the same issues, as the Opioid and PFAS litigation, but threaten even larger potential exposures to the insurance industry.
Climate change litigation
Starting in 2004, the US Courts have seen first a trickle, then a rising tide, of climate change litigation by states, counties, cities and other local authorities against fossil fuel producers alleging that their deceptive marketing practices contributed to the costs of climate change and seeking to recover damages in respect of the harms caused.
These claims largely follow the Opioid and PFAS model in that public nuisance is the main legal theory that makes it through the case management stage. Some 40 such claims have been issued in total since 2004, with the majority in the last 6 years, however Multi District Litigation ("MDL") status has not yet been granted.
Coverage issues arising from this litigation include whether an "accident" includes reckless conduct and the application of pollution exclusions to greenhouse gases – an October 2024 decision of the Hawaii Supreme Court in Aloha Petroleum v National Fire found against insurers on the first point and in favour of insurers on the second, but that is unlikely to be the last word on the subject.
Social media litigation
A Multi District Litigation ("MDL") Order, In Re Social Media Adolescent Addiction has been granted by the US District Court for Northern California against the likes of Facebook (Meta), Snapchat, Google, and Tiktok (Bytedance). Plaintiffs have alleged that the defendants’ social media platforms are defective because they are designed to maximise screen time, which can encourage addictive behaviour in adolescents. As alleged, this conduct results in various emotional and physical harms, including death.
The claims include:
- Individual bodily injury claims by adolescents alleging direct harm from social media;
- Claims by school boards in public nuisance claiming in respect of the general harms to the student body and the school teaching
environment; and - Claims by state Attorneys General which largely mirror the school boards claim.
The litigation is still in case management, but pre-trial orders have been made for discovery and expert evidence due this year, marking the first time that "Big Tech" has been made to disclose the intentions and thought processes behind their product design.
To read the full section, download the Global Risks: Horizon Scanning report.
