Product Liability Update

Product Liability Update

May 22, 2009

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 Update:

  • United States Supreme Court Holds State Law Failure-to-Warn Claims Involving Prescription Drugs Not Preempted by FDA Approval of Warnings Absent Clear Evidence FDA Would Have Rejected Plaintiff’s Proposed Warning
  • First Circuit Holds Class Action Fairness Act Requires Removing Defendant To Demonstrate “Reasonable Probability” That Amount In Controversy Exceeds $5 Million
  • First Circuit Holds “Home State” Exception to Federal Jurisdiction Under Class Action Fairness Act Does Not Require Consideration of Citizenship of Class Members in Other Class Actions Arising Out of Same Factual Nucleus
  • Massachusetts Supreme Judicial Court Holds “Light” Cigarettes Class Action Not Preempted by Cigarette Labeling and Advertising Act Based on United States Supreme Court Ruling, Not Subject to Chapter 93A Because FTC Consent Decree Did Not Affirmatively Permit Defendant’s Statement
  • Massachusetts Federal District Court Dismisses Putative Class Action Against Manufacturer of Recalled Heartworm Medication Based on Economic Loss Rule and Plaintiff’s Inability to Show Compensable Loss Where She Received Product’s Expected Benefit

Excerpt:

United States Supreme Court Holds State Law Failure-to-Warn Claims Involving Prescription Drugs Not Preempted by FDA Approval of Warnings Absent Clear Evidence FDA Would Have Rejected Plaintiff’s Proposed Warning

In Wyeth v. Levine, 555 U.S. --- (Mar. 4, 2009), plaintiff sued the manufacturer of a nausea drug in Vermont state court for negligent failure to warn and strict liability when an injection or “push” of the drug intended for her vein entered her artery, causing gangrene and leading to the amputation of her right forearm.  Plaintiff argued that, although the drug’s Food and Drug Administration (“FDA”)-approved label specifically warned of the risk of gangrene and amputation from arterial penetration and expressed a preference that any intravenous administration of the drug be through an infusion or “drip,” the absence of a stronger warning about the risks of administering the drug through injection rendered the drug defective.  

Download the Foley Hoag May 2009 Product Liability Update  (.pdf)