What trends could be travelling across the Atlantic to UK shores?
To a large extent, much of the litigation being brought in America already has a UK counterpart.
History has proven that when considering potential emerging risks, behaviours and patterns in the United States can give a good indication of the types of claims that may soon be brought in the United Kingdom.
To a large extent, much of the litigation being brought in America already has a UK counterpart. Whilst in the UK there has been increased publicity recently about the historic sexual abuse of young footballers, in the US there has been recent litigation arising out of the sexual abuse of boy scouts. In February 2020 the Boy Scouts of America filed for bankruptcy protection which could have seen a large number of victims denied compensation but it is now hoped that a settlement is about to be reached, with the Boy Scouts of America using a combination of cash and insurance policies to fund the compensation that it hase been ordered to pay.
Similarly, in the UK there has been attention drawn to claims for dementia arising from playing rugby and football, whilst in the US claims have been brought by NFL players. The NFL has recently drawn adverse publicity with its response to such claims, as a race-based formula has been used to determine what damages to award to a player which assumes that black players have a lower level of cognitive function prior to any injury. There is no indication that such a formula is being used in the UK.
However, claims which have not yet appeared on UK shores include claims arising from the use of certain weed killers. A number of claims have been brought in the US by users of Roundup who say that the weed killer caused their non-Hodgkin lymphoma. Roundup had proposed a $2bn plan to settle future similar claims but this has been rejected by US courts. With sales of garden furniture increasing in the UK in the spring and summer of 2020 and with COVID-restrictions only allowing groups to meet outside earlier this year, it will be interesting to see whether sales of garden products such as weed killers have also increased as people have been spending more on maintaining their outside spaces and whether this gives rise to the potential for volume litigation in the future.
Claims have also been made in the US that Johnson & Johnson’s talc baby powder contained asbestos. The company has been ordered to pay $2.1bn by the US Supreme Court in relation to these claims, albeit that this is a reduction from the $4.7bn that it had originally been ordered to pay by the jury hearing the original claims. There is little evidence of an emergence of litigation arising from asbestos in talc in the UK but with Johnson & Johnson only stopping the use of talc in the US and Canada in May 2020 but not in the UK, there is the potential that such claims may appear in the UK.
What is clear is that on both sides of the Atlantic there is still a wide range of volume litigation emerging which is unrelated to the inevitable increase in COVID-related litigation on the horizon.