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 website. As always, you can access all of our publications at https://foleyhoag.com.

Included in this Issue:

MASSACHUSETTS

• Massachusetts Federal Court Holds Physician And Marketing Experts Cannot Opine Regarding Pharmaceutical Company’s Intent In Allegedly Paying Physicians As Speakers And Consultants Beyond Fair Value In Violation Of Anti-Kickback Statute, Credibility Of Defendant’s Witnesses Or Whether Defendant’s Conduct Violated Statute, And Cannot Present Narrative Summary Of Factual Events
• Massachusetts Federal Court Holds Plaintiff Adequately Pleaded Manufacturing Defect, Failure To Warn And Deceptive Business Practices Claims Against Surgical Stapler Manufacturer Where Complaint Alleged Stapler Was Subject To Recall For Inadequate Firing At Time Of Plaintiff’s Procedure And Defendants Withheld Thousands Of Individual Adverse Event Reports In Favor Of Summary Report On FDA’s Public Database, But Dismissed Design Defect And Negligent Misrepresentation Claims Where Plaintiff Failed To Plead Existence Of Reasonable Alternative Design Or Specific Misrepresentations By Defendants
• Massachusetts Supreme Judicial Court Holds Attorneys’ Fees For Violation of Unfair And Deceptive Practices Statute Resulting In Bodily Injury Not “Damages Because Of Bodily Injury” Covered By Insurance Policy
   

NEW YORK/NEW JERSEY SUPPLEMENT

• New York Federal Court Grants Summary Judgment Against Asbestos And Silica Personal Injury Claims Based On Lack Of Expert Testimony That Plaintiff Was Exposed To Those Substances In Sufficient Amounts To Cause Her Injury 
• New York Federal Court Holds Foreign Corporation’s Manufacture Of Saws Exclusively For United States-Based Distributor To Be Distributed Throughout North America Does Not By Itself Establish Sufficient Minimum Contacts With New York To Support Personal Jurisdiction Consistent With Due Process
• New Jersey Appellate Division Holds Slip And Fall Claims Against Paint Manufacturer Not Barred By Statute Of Limitations Where Plaintiff Timely Filed Complaint Naming Fictitious Manufacturer, Could Not Reasonably Have Known Manufacturer’s Identity Then And Thereafter Acted With Reasonable Diligence To Discover Manufacturer’s Identity And Amend Complaint To Name It

Excerpt:

Massachusetts Federal Court Holds Physician And Marketing Experts Cannot Opine Regarding Pharmaceutical Company’s Intent In Allegedly Paying Physicians As Speakers And Consultants Beyond Fair Value In Violation Of Anti-Kickback Statute, Credibility Of Defendant’s Witnesses Or Whether Defendant’s Conduct Violated Statute, And Cannot Present Narrative Summary Of Factual Events

In United States v. Biogen Idec, Inc., No. 1:12-cv-10601-IT, 2022 U.S. Dist. LEXIS 120549 (D. Mass. July 8, 2022), an individual plaintiff-relator sued a pharmaceutical company in the United States District Court for the District of Massachusetts for allegedly retaining physicians as consultants and speakers as an inducement to prescribe its multiple sclerosis treatments, in violation of the federal Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b. Plaintiff proffered multiple experts including physicians and healthcare marketing executives who opined that the educational purpose and value of defendant’s speaker and consultant programs, its compliance processes and its speaker-fee calculations were all inadequate. Defendant filed multiple motions to exclude the experts’ testimony, which the court addressed in a single opinion.

Download the October 2022 Foley Hoag Product Liability Update (pdf).