Product Liability Update

Product Liability Update: January 2018

February 1, 2018

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

  • First Circuit Holds Foreseeability of Health Risk Is Standard For Failure To Warn Even Though Claim Is For Property Remediation, And Bulk-Selling Chemical Manufacturer Had Post-Sale Duty To Warn Only Direct Customers Even If End Users Could Be Traced
  • Massachusetts Appeals Court Holds Manufacturers of Non-Defective Component Parts Have No Duty to Warn of Risks Arising From Addition of Other Components In Finished Product
  • Massachusetts Appeals Court Holds Failure to Prove When Product Manufacturer Lost Or Destroyed Documents Precluded Adverse Spoliation Inference, And School Not Negligent For Serving Choke-Risking Food Product Absent Knowledge of Risk
  • Massachusetts Federal Court Holds Indemnity And Contribution Claims Against Product Sellers For Settlement Of Related Action Not Ripe Absent Evidence Of Actual Settlement Payments, But Damages Claims Not Subject To Dismissal Because No Certitude From Pleadings And Judicially Noticed Documents That Plaintiff Was On Inquiry Notice Of Claims Outside Limitations Period
  • Massachusetts Federal Court Holds Third-Party Administrator Did Not Fail To Effect Fair Settlement By Offering $250,000 When Jury Later Returned $16M Verdict, Or Offering $1.9M Post-Verdict, As Administrator Contested Causation and Damages With Expert Evidence Throughout Trial And Punitive Damages Posed Appealable Issues

NEW YORK/NEW JERSEY SUPPLEMENT

  • Second Circuit Holds Expert Testimony Intra-Uterine Device Could Cause Post-Insertion Uterine Perforation Inadmissible Because Experts’ Theories Were Not Generally Accepted, Experts Lacked Pre-Litigation Expertise With Device And Uterine Perforation, And Experts Assumed Existence of Phenomenon At Issue; Court Declines To  Decide If Opposing Party Admissions Can Substitute For Expert Causation Testimony But Holds Proffered Admissions Insufficient

Excerpt:

First Circuit Holds Foreseeability of Health Risk Is Standard For Failure To Warn Even Though Claim Is For Property Remediation, And Bulk-Selling Chemical Manufacturer Had Post-Sale Duty To Warn Only Direct Customers Even If End Users Could Be Traced

In Town of Westport v. Monsanto, 877 F.3d 58 (1st Cir. 2017), a municipality sued manufacturers of polychlorinated biphenyls (“PCBs”) in the United States District Court for the District of Massachusetts for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and negligence based on defective design and failure to warn after plaintiff discovered PCBs—odorless and colorless alleged human carcinogens sometimes used as plasticizers—in caulk at a middle school.  The district court granted summary judgment against all claims, ruling, among other things, that the town had not shown health risks to building users were reasonably foreseeable at the time of the PCBs’ sale, and if defendants had any post-sale duty to warn they adequately discharged it by warning their bulk caulk manufacturer customers of possible toxic effects in their workers (see August 2017 Product Liability Update).

Download the January 2018 Foley Hoag Product Liability Update (pdf).