Product Liability Update

Product Liability Update: October 2017

October 17, 2017

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

  • Massachusetts Federal Court In Multi-District Litigation Holds Under Six States’ Laws That Manufacturer Of Brand-Name Pharmaceutical Is Not Liable For Injuries Caused By Generic Equivalents Whose Manufacturers Were Required To Adopt Branded Manufacturer’s Allegedly Inadequate Warnings
  • Massachusetts Federal Court Holds Medical Device Distributor Not Fraudulently Joined As Design Defect and Failure-to-Warn Claims Not Preempted by FDA Regulations That Do Not Prohibit But Merely Require Notification of Design or Labeling Changes, and Distributor May Be Liable On Implied Warranty Claims Even Without Taking Title to Product
  • Massachusetts Federal Court Holds Commercial Breach of Implied Warranty Claims For Purely Economic Loss Require Contractual Privity
  • First Circuit Rejects Fraud And Unfair And Deceptive Practices Claims Based On Allegedly Inflated “Compare At” Price Tag For Lack of Actual Injury Where No Allegation Product Was Not Worth Price Paid; Unjust Enrichment Claim Fails Due To Existence Of Sales Contract
  • Massachusetts Federal Court Holds No Duty to Warn of Fall Hazard From Grooves In Concrete Around Gas Pumps As Any Danger Was Open and Obvious; Court Also Questions Admissibility Of Expert Opinion Of Duty Based on Safety Standard For Gaps In Sewer Grates

NEW YORK/NEW JERSEY SUPPLEMENT

  • New Jersey Appellate Division Holds Trial Court Erroneously Excluded Experts’ Causation Opinions Based On Non-Epidemiologic Evidence And Single Small Epidemiologic Study, While Discounting Study Adjustment And Multiple Larger Studies, As Experts’ Detailed Methodological Challenges To Latter Rendered Testimony Sufficiently Reliable To Be Admitted

Excerpt:

Massachusetts Federal Court In Multi-District Litigation Holds Under Six States’ Laws That Manufacturer Of Brand-Name Pharmaceutical Is Not Liable For Injuries Caused By Generic Equivalents Whose Manufacturers Were Required To Adopt Branded Manufacturer’s Allegedly Inadequate Warnings

In In re Zofran (Ondansetron) Products Liability Litigation, 2017 U.S. Dist. LEXIS 130965 (D. Mass. Aug. 4, 2017), a multi-district litigation (“MDL”) in the United States District Court for the District of Massachusetts, parents and guardians of children with birth defects sued the manufacturer of a brand-name prescription anti-nausea drug, asserting claims for misrepresentation and negligent undertaking in promoting the drug off-label for pregnancy-related nausea and not adequately disclosing birth defect risks.  A number of the plaintiffs alleged maternal exposure only to generic equivalents of the brand-name drug, but asserted the branded or innovator manufacturer was liable as it had “created a market” for pregnancy use, should have known generic alternatives would enter that market and knew generic manufacturers were legally required to copy the branded manufacturer’s labeling.  Defendant moved to dismiss these “innovator liability” claims on the ground that its product had not caused plaintiffs’ harm.

Download the October 2017 Foley Hoag Product Liability Update (pdf).