Product Liability Update

Product Liability Update

October 6, 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 Appeals Court Holds Trademark Licensor That Substantially Participated in Design, Manufacture or Distribution of Product Is Liable as “Apparent Manufacturer”
  • First Circuit Affirms Judgment that Amended Complaint in Product Liability Action Filed Over a Year After Expiration of Statute of Limitations Did Not Relate Back to Original Complaint Because Defendant Added by Amended Complaint Was Not on Notice of the Action Within 120 Days of its Filing
  • Massachusetts Federal District Court Holds Jury Instruction on Proof of Design Defect Need Not State Explicitly that Defendant May Be Liable If Product Is Unreasonably Dangerous to “Foreseeable Bystanders” as Well as Foreseeable Users
  • First Circuit Denies Interlocutory Appeal of Class Certification in Medical Monitoring Action by Smokers Against Cigarette Manufacturer, Holding Interlocutory Review Would Unnecessarily Impede Progress of Case
  • Massachusetts Federal District Court Grants Summary Judgment for Pharmaceutical Manufacturer on Failure-to-Warn Claims Because Plaintiff Could Not Prove Drug Was Substantial Contributing Factor to Injuries or that Prescribing Physician Relied on Manufacturer’s Alleged Misrepresentation
  • Massachusetts Appeals Court Affirms Denial of New Trial in Defective Design Case Where Defense Counsel Made Inappropriate Comment During Closing About Harm to Society When Manufacturers Are Sued, But Trial Judge Effectively Cured Any Prejudice With Instruction that Jury Disregard Remark 

Excerpt:

Massachusetts Appeals Court Holds Trademark Licensor That Substantially Participated in Design, Manufacture or Distribution of Product Is Liable as “Apparent Manufacturer”

In Lou v. Otis Elevator Co., 77 Mass. App. Ct. 571 (2010), a young boy’s hand was caught and injured in an escalator located in a department store in China. The boy sued the American company that had licensed its trademark and the relevant escalator technology to the escalator’s Chinese manufacturer (which itself was a joint venture among the defendant, a Chinese elevator firm and a Chinese governmental investment group) for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), and his parents sued for loss of consortium. After the Massachusetts Superior Court entered judgment on a jury verdict for the plaintiffs, defendant appealed to the Massachusetts Appeals Court.   

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