On December 9, 2026, the European Union’s revised Product Liability Directive (PLD or “Directive”) will take effect, fundamentally altering the landscape of product liability litigation across all EU member states. For manufacturers doing business in Europe, this is not a distant regulatory footnote – it is an imminent shift that will reshape how wrongful death claims are litigated, defended, and ultimately resolved. The new PLD introduces procedural mechanisms that bear a striking resemblance to the U.S. discovery process, including mandatory pretrial disclosure of technical and design-related evidence. But in certain critical respects, the new Directive goes further than U.S. law, imposing burdens on manufacturers that have no parallel in the United States. For companies accustomed to the home-court advantages that defendants traditionally enjoy in product liability litigation, the new PLD levels – and in some cases tilts – the playing field in favor of claimants. This article examines the wrongful death damages framework familiar to U.S. practitioners, explores the types of defect theories and expert-driven litigation strategies that define these cases, and then turns to how the new EU PLD will change the calculus for manufacturers facing wrongful death exposure in Europe.

The U.S. wrongful death landscape

In the United States, product liability lawsuits keep the nation’s courts and lawyers busy. When a product is alleged to be defective, and that alleged defect results in someone’s death, surviving family members may sue the manufacturer and seek damages known as “wrongful death” damages.

Wrongful death damages are generally broken into two categories: pecuniary damages and non-pecuniary damages. Pecuniary damages are economic damages meant to replace the decedent’s earnings and the financial value they provided to the household. Non-pecuniary damages are emotional damages meant to compensate the decedent’s survivors for the emotional grief associated with losing a beloved family member.

In the United States, we see product liability, wrongful death lawsuits across a wide range of scenarios. Examples include: fatal automobile accidents where the plaintiff alleges that a defect in the automobile’s lane-assist software caused the accident; aviation accidents where general, business, or commercial aircraft crash and kill the pilot and passengers due to an alleged defect in the avionics software; industrial machinery accidents where a worker is crushed or electrocuted while on the manufacturing floor due to an alleged defect in the machine; medical device cases where a robotic-assisted surgery device is alleged to have malfunctioned and caused the patient’s death; consumer goods, such as pressurized cookers and space heaters that can explode, catch on fire, and result in death; children’s products such as car seats, cribs, and toys that allegedly contain some defect that resulted in a child’s death. At Reed Smith, we’ve seen it all…and more.

In these cases, before being entitled to wrongful death damages, the plaintiff (most often the surviving spouse or family member of the decedent) must establish that a defect in the product was the proximate cause of death. There are three ways to prove a defect in a product.

1.  Demonstrate a manufacturing defect that resulted in the individual product coming off the manufacturing line out of specification.
2. Establish that a design defect existed, meaning that although the product was manufactured correctly and according to specification, there is something inherently wrong and unreasonably dangerous in the design of the product overall, rendering it unsafe for its intended use.
3. Show there was a failure to warn, meaning that the product did not come with adequate warnings to alert the user to risks associated with the product.

More often than not, the plaintiff’s attorneys will claim early in a lawsuit that the product contained all three types of defects, and defense counsel in turn is required to disprove each one. All three defect theories are complicated, and the laws pertaining to burdens of proof and what does or does not constitute a defect vary from jurisdiction to jurisdiction. To defend against the defect theories, defense counsel must retain experts – usually several – to disprove such theories. This involves deep analyses into the product’s manufacturing and design specifications, inspections of the product at issue, and testing to refute the theories advanced by the plaintiffs. The plaintiff’s attorneys have their own experts, and as defense counsel, we normally run into the same cast of characters in our cases.

Damages experts are typically retained by both sides as well. The plaintiff’s attorney will retain an economist or accountant to opine on the decedent’s pecuniary damages. As defense attorneys, we retain rebuttal damages experts to poke holes in the methodologies employed by plaintiff’s experts when calculating these damages.

Limiting non-pecuniary damages is a challenging task. In many jurisdictions, the jury is asked to put a financial figure on the value of the loss of love, support, and companionship as a result of the decedent’s death. Arguing to a jury that the decedent never really loved his family is one tactic, appropriate only in cases where there is evidence of adultery or estrangement. But in most cases, having the jury assign the value of the loss of a decedent’s love, support, and companionship to the surviving spouse and children can cause inflated verdicts.

Wrongful death across the EU: a varied landscape

Before examining the new PLD, it is important to understand the existing wrongful death landscape across EU member states, which varies significantly from country to country. Unlike the United States, where wrongful death statutes exist in every state and generally permit both pecuniary and non-pecuniary recovery, European jurisdictions have historically taken markedly different approaches to compensating survivors when a product-related death occurs. This patchwork of national legal frameworks means that a manufacturer’s wrongful death exposure in the EU has, until now, depended heavily on where the claim is brought, according to procedural settings that mostly differ from a U.S.-like party-driven procedure, and also where criminal and regulatory liability may be sought through the intervention of public authorities (labor security, consumer protection, etc.).

Bearing in mind that EU jurisdictions have mostly not implemented punitive damages, that class actions are not (yet) implemented in any way similar to the United States, and that the range of damages is generally lower than in the United States, France has long served as one of the more generous jurisdictions in Europe for wrongful death compensation, awarding significant damages across multiple heads of loss, including lost earnings, assistance, and pain and suffering.

Italy and Spain also provide substantial non-pecuniary compensation, though through different mechanisms. In Italy, compensation for wrongful death is quantified using points-based tables that account for factors such as the ages of the deceased and the claimant; their degree of kinship; cohabitation; and the number of surviving family members. The Milan Tables (Tabelle Milanesi) have long served as the de facto national standard, although a very recent decision of the Court of Cassation (published April 7, 2026) has endorsed the general application of the National Unified Table under article 138 of the Private Insurance Code – previously limited to motor vehicle, vessel, and medical liability claims – which, if confirmed, would become the primary benchmark using very similar calculation methods. Survivors may claim both non-pecuniary damages (compensating inner suffering and disruption of relational life) and pecuniary damages (covering the loss of financial support previously provided by the deceased), with future income losses typically converted into a lump-sum award through actuarial capitalization mechanisms.

By contrast, Spain employs the Baremo – a compulsory legislative compensation system originally designed to assess personal injury arising from traffic accidents. The Baremo uses annually updated base lump-sum amounts adjusted according to factors such as the type and severity of the injury, the claimant’s age, and the claimant’s relationship to the victim (i.e., whether the claimant is the injured party or a surviving relative). Although the Baremo was developed for traffic accident cases, Spanish courts apply it by analogy to other personal injury claims, including those arising from product liability. In both Italy and Spain, non-pecuniary damages account for a substantial share of total compensation, often exceeding the pecuniary component. Comparative studies of death indemnities across Europe have shown that France, Italy, the Netherlands, and the United Kingdom tend to produce the highest overall awards, while countries such as Poland, Hungary, and the Czech Republic produce significantly lower figures.

Germany, by contrast, only recently recognized bereavement damages at all. Prior to 2017, German law did not compensate surviving relatives for the emotional distress of losing a loved one unless the death caused a direct physical or health impact on the bereaved. It was not until the intentional downing of Germanwings flight 4U 9525 over the French Alps in 2015 and a fatal train collision near Bad Aibling in Bavaria in 2016 that public and legislative pressure led to the enactment of section 844(3) of the German Civil Code. (Bürgerliches Gesetzbuch, BGB), which for the first time entitled secondary victims to claim bereavement damages – known as Hinterbliebenengeld – in wrongful death cases. The German legislature left the quantum of these damages to judicial discretion, though amounts discussed during the legislative process ranged from €10,000 to €60,000. In addition, from the perspective of the level of risk of loss in Germany, section 845 of the German Civil Code provides compensation for lost household or business services in defined circumstances. Germany has also been among the first member states to begin transposing the new PLD, publishing a draft bill for a new German Product Liability Act (PLA-D) on December 17, 2025. Section 14, paragraph 3 of the PLA-D expressly refers, in particular, to the applicability of sections 844 and 845 as provisions governing liability for damages.

The Netherlands has historically taken one of the most restrictive approaches in Europe. Under Article 6:108 of the Dutch Civil Code, wrongful death claims were long limited in scope, and Dutch courts traditionally restricted the next of kin’s right of action further. Along with Germany (before its 2017 reform) and Denmark, the Netherlands stood out in Europe for not awarding bereavement damages to surviving family members at all – a position that has come under increasing pressure from evolving European norms and the European Court of Human Rights.

This diversity of national approaches underscores a critical point for manufacturers: wrongful death exposure in Europe is not monolithic, and companies cannot rely on a single strategy across all member states. The new PLD does not harmonize member states’ substantive damages calculations – each jurisdiction will continue to apply its own rules for determining the quantum of wrongful death compensation. What the PLD does change, fundamentally, are some procedural mechanisms by which those claims will be litigated. In doing so, it amplifies the wrongful death risk for manufacturers across all EU jurisdictions, regardless of whether the underlying national damages framework is generous or restrictive.

How the PLD changes the calculus

The litigation landscape for product liability and wrongful death is about to dramatically shift in the EU, effective December 9, 2026. Under Article 9 of the new PLD, manufacturers that are sued will be required to disclose relevant evidence at their disposal once a claimant presents facts and evidence sufficient to support the plausibility of the claim. This is a mandatory disclosure obligation with no true precedent in most EU member states. Design specifications, manufacturing techniques, internal communications regarding how to phrase warnings in a manual, and –for digital and AI-based products—software source code and algorithmic data—will all potentially fall within the scope of disclosure. Critically, under Article 10 of the PLD, if a defendant fails to comply with a disclosure order, the product is presumed to be defective – a sanction that could effectively concede the case. Courts may also require that disclosed evidence be presented in an accessible and comprehensible form, meaning the defendant must organize and prepare complex technical material for the opposing party and the court. While the PLD requires courts to consider trade secret protections and maintain proportionality in disclosure, the risk of sensitive corporate information leaking through public proceedings cannot be understated. It is critical that manufacturers doing business in the EU establish robust policies and practices now to protecting attorney–client communications and trade secrets.

As discussed above, the concept of wrongful death damages exists in several EU member states, but the procedures that will govern these cases under the new PLD will be unprecedented, and in some instances, probably more difficult for defendants than those in the United States. Usually, a defendant in a product liability case has the advantage. The manufacturer knows how the product works – the ins and outs of the product. The manufacturer understands the engineering principles and design choices that were incorporated into the product. The manufacturer’s lawyers have early access to engineers who can inform counsel regarding the intricacies of how a product is manufactured and inspected before it leaves the production line. Defense experts have a head start, as they can obtain an exemplar product and begin testing it under various conditions. These advantages, however, should be significantly diminished under the new PLD. Beyond the disclosure obligations described above, the Directive introduces a series of rebuttable presumptions under Article 10 that tilt the playing field further in favor of claimants: a product is presumed defective if it does not comply with mandatory safety requirements or if the damage was caused by an obvious malfunction during reasonably foreseeable use; causation is presumed once defectiveness is established and the damage is of a kind typically consistent with the alleged defect; and where a claimant faces excessive difficulties due to technical or scientific complexity, courts may presume both defectiveness and causation based on mere probability. The Directive also broadens the universe of potentially liable parties – in addition to manufacturers and importers, strict liability now extends to authorized representatives, fulfillment service providers, distributors, and, in some cases, online platforms, ensuring that claimants always have an EU-based defendant to pursue. For wrongful death claims, this expanded liability cascade means that multiple entities in a product’s supply chain may face exposure. The EU PLD also places the burden on the defendant to present its expert and technical evidence to the court and the claimant’s attorneys in a clear and understandable manner – a requirement that has no counterpart in the United States and that imposes an extraordinary burden on manufacturers and their counsel.

Conclusion

The new EU Product Liability Directive represents a paradigm shift for manufacturers and their counsel, as well as for all businesses involved in the supply chain for products that are placed on the EU market. For decades, product liability defense in the United States has operated within a well-understood framework – one in which defendants, armed with superior knowledge of their own products, enjoy structural advantages in litigation. The new PLD disrupts that dynamic. By compelling manufacturers to disclose technical and design evidence in a manner that is accessible and understandable to courts and claimants alike, the Directive strips away much of the informational asymmetry that has traditionally favored the defense. Combined with discovery obligations modeled on U.S.-style pretrial procedures, the result is a litigation environment in which proving a defective product claim – and, by extension, a wrongful death claim – should become meaningfully easier for plaintiffs.

Manufacturers should audit internal document retention policies, reinforce protocols around attorney–client privilege, and develop strategies for protecting trade secrets in the context of compelled disclosure. Litigation insight as to how things could play out will be key. Companies should also review their product liability insurance policies to confirm that coverage adequately accounts for the PLD’s expanded scope, including liability arising from software, AI systems, and digital product elements. Additionally, companies should begin working with counsel experienced in both U.S. product liability litigation and emerging EU procedures to anticipate the kinds of expert evidence and technical disclosures they may be required to produce.

At the same time, companies should review and, where necessary, renegotiate their contractual arrangements with suppliers, distributors, importers, and logistics service providers in order to clearly allocate responsibilities, define information-sharing obligations, and establish effective rights of recourse across the supply chain.

The wrongful death damages exposure that has long been a hallmark of American product liability practice is arriving in Europe, and in some respects, it should arrive with fewer safeguards for the defense than exist in the United States. Manufacturers that recognize this reality and act accordingly will be far better positioned to manage their risk when the first wave of claims under the new PLD begins.

Client Alert 2026-085