LITIGATION TRENDS 2025 | 101 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C been brought – although with only limited success – in product liability litigation against the tobacco industry, opioid manufacturers and distributors, gun manufacturers, and lead pigment and paint producers. Consumers have begun to view social media as the next frontier for public nuisance claims. In recent years, consumers have pursued public nuisance claims against tech companies, alleging that these companies created a public nuisance by designing social media platforms with the intent to attract and addict youths. These actions have been brought across several states and are being consolidated into multi-district litigations in both state and federal court. While these cases are still ongoing, the multi-district litigation courts could adopt the approach taken by at least one California court in 2024, which declined to extend public nuisance law to social media. The court in that case found that the right not to be harmed by social media platforms is a right personal to the individuals using the platforms, not one held by the public. Tech companies facing these public nuisance claims may also be able to benefit from common law doctrine that tied public nuisance claims to land. Social media is a far cry from the land-centered foundation of public nuisance law. And multiple states, including Illinois, New Jersey, Rhode Island, and South Carolina, have been reluctant to extend the public nuisance doctrine beyond the traditional land-use context. Permitting consumers to pursue public nuisance claims against social media companies could open up the floodgates to an unreasonable level of liability that is contrary to established precedent for public nuisance laws. Like AI, these cases raise a critical question: whether social media is considered a product. And we can already see that courts considering this question have been similarly divided. While a California court found where complaints have not provided sufficient evidence demonstrating the presence of harmful PFAS levels in the products. For example, where a plaintiff failed to prove that diapers she purchased contained PFAS, the court in the Southern District of New York dismissed the case for lack of standing. In another case, the plaintiff claimed there were PFAS in tampon products, but the judge in the Northern District of California dismissed the lawsuit for failure to state a claim. The plaintiff used the “Total Organic Fluorine” (TOF) test to measure and detect PFAS in the alleged product. However, the court ruled that the TOF test failed to provide sufficient evidence to demonstrate that the product contained PFAS or, if it did, that the concentration was harmful. Overall, courts appear to be skeptical of false advertising claims, requiring plaintiffs to provide concrete evidence (rather than just conclusory allegations) that PFAS at harmful levels are present in the products – a challenge that may be difficult to meet with current scientific testing methods. Companies can protect themselves from these types of lawsuits by scientifically verifying that their products are “PFAS-Free” before advertising as such. Public Nuisance, Product Liability, and Social Media From AI to social media, technological advancements of all kinds may open the door to a potential new application of product liability law. And over the last few years, the plaintiffs’ bar has frequently pursued public nuisance claims in addition to traditional product liability claims – most recently in lawsuits brought against social media companies. In contrast to a plaintiff proving that a defendant’s product injured them uniquely, public nuisance claims are based on plaintiffs’ allegations that a defendant’s conduct unreasonably interfered with the rights of the public more generally. Statute of limitations may also not be applicable in certain situations. Public nuisance claims have E M P Product Liability 100 | Weil, Gotshal & Manges LLP
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