Social Media MDL’s Bold Theory Echoed In US Health Alert
By: Brian Prokopowich
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Social Media MDL’s Bold Theory Echoed In US Health Alert
Written By: Jeff Overley; Additional reporting by Emily Field & Y. Peter Kang. Editing by Dave Trumbore
Law360 (May 24, 2023, 10:20 PM EDT) — A high-profile warning from the federal government’s top doctor about social media harming America’s youth echoes core components of sprawling litigation targeting Facebook, Instagram, TikTok and other platforms, including a controversial theory that could substantially broaden the boundaries of personal injury law.
The alert from U.S. Surgeon General Dr. Vivek Murthy on Tuesday took the form of an advisory reserved for an “urgent public health issue,” and it explored many of the same potential harms from social media — eating disorders, anxiety, depression and suicide — outlined in recently formed multi-district litigation against the world’s largest social media networks. The advisory’s title, “Social Media and Youth Mental Health,” also resembled the MDL’s title, which includes the phrase, “Social Media Adolescent Addiction.”
“Our children have become unknowing participants in a decades-long experiment,” the advisory asserted.
More significantly for the MDL, Murthy’s advisory repeatedly referred to social media platforms as “products.” That called to mind the crux of the MDL: whether Big Tech’s sophisticated algorithms are products subject to traditional product liability law, or instead are services that fall entirely outside that legal realm.
“This is exactly the issue that’s getting briefed right now,” Motley Rice LLC member Previn Warren, co-lead plaintiffs counsel in the MDL, told Law360 in a Wednesday interview.
An especially noteworthy passage in the surgeon general’s advisory likened social media platforms to toys, vehicles and medications, all of which have long been targeted in MDLs premised on theories involving product liability.
“The Consumer Product Safety Commission requires toy manufacturers to undergo third-party testing and … the National Highway Traffic Safety Administration requires manufacturers to fit new motor vehicles with standard airbags and seat belts,” the passage said. “Medications must demonstrate safety to the [U.S.] Food and Drug Administration.”
“Given the mounting evidence for the risk of harm to some children and adolescents from social media use, a safety-first approach should be applied in the context of social media products,” the passage concluded.
Asked whether the advisory might prove relevant in the MDL, Warren replied, “We think it is relevant, and we are heartened that the surgeon general has recognized, in his advisory, the serious risks that social media has for kids.”
“I do think his [analogy] to airbags and other safety features and products is very on point and seems to recognize the reality that products liability law can and should move into the 21st century and be applied to social media products,” Warren added.
In a joint motion to dismiss last month, the owners of Facebook, Instagram, Snap, TikTok and YouTube sharply criticized the central theory in a nearly 300-page complaint filed on behalf of children allegedly harmed by the enormously popular platforms.
“The nation is engaged in an important conversation about adolescent mental health,” the companies wrote. “Now, plaintiffs seek to commandeer that conversation with a broad expansion of state tort law that would have this court erroneously apply product liability law to cover content publication and online speech.”
Murthy’s advisory acknowledged “positive effects of social media use for youth,” including avenues for new friendships and civic bonds. That called to mind another possible hurdle for the MDL’s premise: Some experts have predicted that the plaintiffs will have trouble credibly distinguishing between aspects of social media that hurt and help users, or demonstrating that any addiction was actually harmful.
The surgeon general’s advisory might not formally pack any legal punch, but it was more than a single statement by one public official. Instead, it spanned 25 pages, and it credited “valuable contributions from partners across the U.S. government,” including the Office of the General Counsel at the U.S. Department of Health and Human Services. The advisory was also made public with considerable fanfare, such as a series of posts on Murthy’s Twitter account and a lengthy announcement with comments from the president of the American Medical Association and other public health figures.
In other MDLs, government reports have been spotlighted in apparent efforts to add credence or context to legal claims. For example, in the massive MDL over the opioid epidemic, San Francisco’s bellwether complaint alleged that “as a direct and foreseeable result of defendants’ conduct, cities and counties across the nation, including San Francisco, are now swept up in … what the U.S. surgeon general has deemed an ‘urgent health crisis.'” That was in reference to a letter that Murthy authored in 2016, when he first served as surgeon general under former President Barack Obama.
Warren declined to say how exactly the advisory might be used in the MDL, but he noted that the plaintiffs are scheduled to file opposition to the defense dismissal bid on June 1.
Lead counsel and representatives for the companies had no immediate comment on Wednesday.
The plaintiffs are represented by Lieff Cabraser Heimann & Bernstein LLP, Motley Rice LLC and Seeger Weiss LLP, among others.
Facebook Holdings LLC and Meta Platforms Inc. are represented by Covington & Burling LLP.
TikTok Inc. and ByteDance Inc. are represented by King & Spalding LLP and Faegre Drinker Biddle & Reath LLP.
Snap Inc. is represented by Munger Tolles & Olson LLP.
YouTube LLC, Google LLC and Alphabet Inc. are represented by Wilson Sonsini Goodrich & Rosati PC.
The MDL is In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, case number 4:22-md-03047, in the U.S. District Court for the Northern District of California.
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