Product Liability Update

Product Liability Update

April 5, 2010

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:

  • Massachusetts Supreme Judicial Court’s Recognition of Cause of Action for Projected Medical Monitoring Costs Based on Mere Subclinical Physiological Changes and Increased Risk, Rather Than Clinically Manifest Harm, Is Significant for Tort Law in Massachusetts, and Perhaps Elsewhere
  • First Circuit Articulates Criteria for Accepting Discretionary Appeal Under Class Action Fairness Act of Order Remanding Putative Class Action to State Court, Holds Class Certifiability Is Irrelevant to Existence of Federal Jurisdiction
  • First Circuit Holds Defendant’s Opposition to Plaintiff’s Motion to Remand Cured Failure to Consent to Removal, Holds District Court Abused Discretion in Precluding Testimony by Untimely-Disclosed Expert Where Practical Effect of Preclusion was Dismissal and Party Offering Expert Had Not Violated Other Court Orders
  • Massachusetts Federal District Court Remands Claims to State Court Based on Defendants’ Failure to Express Unanimous Consent to Removal Within Thirty Days of Service of Both First- and Last- Served Defendants
  • Massachusetts Federal District Court Transfers Putative Class Action to California Federal District Court Based in Part on Pendency of Factually Identical Class Action There
  • Massachusetts Superior Court Holds Claim That Cigarettes Should Have Delivered Lower Nicotine Dose Does Not Improperly Seek to Ban Entire Product Category, Plaintiff Need Not Show Decedent Would Have Used Low-Nicotine Product to Prove Causation
  • Massachusetts Federal District Court Permits Expert Testimony Regarding Hastening of Amyotrophic Lateral Sclerosis Symptoms by Toluene Despite Lack of Exposure Measurements and Epidemiological Studies, Excludes Physician Testimony About Negligence As Invading Province of the Jury
  • Massachusetts Superior Court Denies Summary Judgment for Asset Purchaser Regarding Successor Liability Where Purchaser Retained Two Key Seller Employees, Honored Seller’s Warranties and Used Seller's Logo, and Seller Ceased Operations

Excerpt:

Massachusetts Supreme Judicial Court’s Recognition of Cause of Action for Projected Medical Monitoring Costs Based on Mere Subclinical Physiological Changes and Increased Risk, Rather Than Clinically Manifest Harm, Is Significant for Tort Law in Massachusetts, and Perhaps Elsewhere

As detailed in an October 21, 2009 Foley Hoag Product Liability Alert, the Massachusetts Supreme Judicial Court (“SJC”) in Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009), recognized a cause of action for projected medical monitoring costs based on a plaintiff’s mere subclinical physiological changes and increased risk, and despite the absence of clinically manifest harm. Further analysis of the decision reveals that it may have a significant impact on tort liability in Massachusetts, and even nationally. 

Download the Foley Hoag April 2010 Product Liability Update (.pdf)