Product Liability Update April 2021

Foley Hoag LLP publishes this quarterly Update primarily concerning developments in product liability and related law from federal and state courts applicable to Massachusetts, but also featuring selected developments for New York and New Jersey. 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

Included in this Issue:
  • United States Supreme Court Holds Due Process Permits Exercise Of Specific Personal Jurisdiction Over Out-Of-State Vehicle Manufacturer For Product Liability Claims For Harm To Forum Residents From In-State Accidents Even Though Defendant Did Not Design, Manufacture Or Sell Vehicles At Issue There, As Defendant’s Current In-State Advertising, Sales And Servicing Of Same Vehicle Models Were Sufficiently “Related” Contacts To Support Jurisdiction

  • Massachusetts Supreme Judicial Court Holds That In Most Negligence Cases, Including Those With Multiple Potential Causes, “But-For,” Not “Substantial Contributing Factor,” Is Correct Factual Causation Standard, But In “Rare” Cases Involving Two Independently Sufficient Causes Neither Is Exculpated And Each Is Factual Cause; “Substantial Factor” Language In Asbestos And Toxic Tort Cases Left Undisturbed But May Be Reexamined In Future
  • Massachusetts Federal Court Holds Failure-To-Warn And Unfair And Deceptive Practices Claims Against Medical Device Manufacturer Based On Alleged Inadequate Adverse Event Reporting To FDA Preempted, As Federal Food, Drug, And Cosmetic Act Forbids Imposing State Law Obligations Except Those That “Parallel” Federal Requirements, And Massachusetts Law Does Not Require Manufacturers To Report Adverse Events To FDA
  • Massachusetts Federal Court Holds Triable Issues Exist In Maritime Claims Against Navy Vessel Turbine Manufacturer For Failure To Warn Of Risks Of Third-Party Asbestos Insulation Based On Testimony That (1) Turbine Rooms Would Be Unbearably Hot Without Insulation, As Plaintiff Need Not Prove Turbines “Useless” Without It, (2) Defendant Was Aware Of Risks, And (3) Navy Had Not Warned Plaintiff Of Them, Even Though Defendant Might Have Expected That
  • First Circuit Affirms Exclusion Of Physician Expert’s Testimony Regarding Pharmacy’s Filling Of Prescription And Allegedly Resulting Dermatologic Condition As Expert Admitted He Did Not Know Pharmacist Standard of Care And Had Limited Understanding Of Dermatologic Condition; Pharmacy Negligence Claim Failed Without Expert Testimony And Implied Warranty Claim Failed Because Pharmacists Primarily Provide Services Rather Than Goods
  • New Jersey Appellate Division Holds Trial Judges Improperly Excluded All Evidence Pelvic Mesh Medical Devices Received Section 510(k) Marketing Clearance From FDA, And Of Related Regulatory Communications, But Courts May Limit Such Evidence To Avoid Regulatory Mini-Trials Or Jury Confusion; 510(k) Clearance Is Not FDA Approval, Licensure Or Finding Of Generally Accepted Safety And Efficacy So As To Preclude Punitive Damages Under New Jersey Product Liability Act
  • New York Federal Court Holds Expert Testimony Needed To Support Strict Liability and Negligence Design Defect Claims Against Crossbow Manufacturer, As Feasibility Of Alternative Finger-Guard Designs Required Engineering Knowledge Beyond Lay Jury, And Implied Warranty Of Merchantability Claim Failed As Plaintiff Could Not Articulate Purpose For Which Crossbow Was Unfit Other Than That Underlying Strict Liability Claim
Download the April 2021 Foley Hoag Product Liability Update (pdf).