Product Liability Update

Product Liability Update: August 2016

August 31, 2016

Foley Hoag's Product Liability Update is a quarterly update concerning developments in product liability and related law of interest to product manufacturers and sellers. If you find this update useful, please encourage your colleagues and contacts to also register with us on our Web site. As always, you can access all of our publications at www.foleyhoag.com

Included in this Issue:

  • Massachusetts Superior Court Rejects “Innovator Liability” Failure-to-Warn Claim, Holds Branded Pharmaceutical Manufacturer Owed No Duty to Plaintiff Alleging Injury From Equivalent Generic Drug That Copied Defendant’s Labeling But Defendant Did Not Make Or Sell
  • First Circuit Affirms Exclusion of Expert Opinion That Benzene Caused Leukemia Due to Failure to Explain Discounting of Conflicting Epidemiologic Studies and Circular Analysis Purporting to Exclude Idiopathic Causation Based on Possibility of Benzene Causation
  • Massachusetts Federal District Court Holds Defendant Not Subject to Personal Jurisdiction On Out-of-State Plaintiffs’ Claims as Defendant Was Not At Home in State, Appointment Of Agent For Service Did Not Consent to General Jurisdiction There And Plaintiffs’ Claims Had No Nexus to Defendant’s In-State Activities
  • Massachusetts Federal Court Holds Res Ipsa Loquitur Permits Inference of Manufacturing Defect in Cardiac Guide Wire Based on Lack of Evidence of Negligent Handling and Physicians’ Testimony Spontaneous Breakage Was Rare; Off-Label Use No Bar To Claim Where Use Was Foreseeable And Not Shown To Impose Greater Stress Than On-Label Use
  • First Circuit Affirms Dismissal of Claims Against Biologics Manufacturer For Lack of Standing Where Plaintiffs Failed to Allege Particularized and Concrete Harm From Defendant’s Alleged Failure to Sell Sufficient Product in FDA-Approved Dose to Meet Market Demand
  • First Circuit Holds Jurisdictional Transfer Statute Permits Transfer To Proper Court To Cure Lack of Either Personal or Subject Matter Jurisdiction

Excerpt:

Massachusetts Superior Court Rejects “Innovator Liability” Failure-to-Warn Claim, Holds Branded Pharmaceutical Manufacturer Owed No Duty to Plaintiff Alleging Injury From Equivalent Generic Drug That Copied Defendant’s Labeling But Defendant Did Not Make Or Sell

In Rafferty v. Merck & Co., 2016 Mass. Super. LEXIS 48 (Mass. Super. Ct. May 23, 2016), plaintiff sued his prescribing physician and a pharmaceutical manufacturer for injuries allegedly suffered from use of the drug finasteride, the generic equivalent of a brand name medication manufactured by defendant.  Plaintiff brought claims for negligence and violation of Mass. Gen. Laws Ch. 93A (the state’s unfair and deceptive practices statute), alleging defendant failed to warn that sexual dysfunction was a potential side effect. 

Download the August 2016 Foley Hoag Product Liability Update (pdf).