Product Liability Update

Product Liability Update

January 31, 2011

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 Federal District Court Holds Hospital Not Fraudulently Joined in Medical Device Suit, as Warranty Claim Asserting Hospital Was Product Seller Rather than Service Provider Has Reasonable Basis; No Federal Question Presented as Food, Drug and Cosmetic Act Does Not Completely Preempt State Law so Claims Could Only Arise under Federal Law 
  • Massachusetts Federal District Court Holds Retailer Not Liable in Negligence as “Apparent Manufacturer” for Failure to Warn of Product Risks Where Retailer’s Name Was Not on Product and There Was No Evidence Plaintiffs Believed Retailer Was the Manufacturer
  • First Circuit Reverses Trial Court Decision to Exclude Expert From Testifying Based on Pro-Plaintiff Bias, Holding Focus of Inquiry Should Be On Expert’s Specialized Knowledge and Whether Testimony Will Assist Jury in Understanding Fact in Issue
  • Massachusetts Appeals Court Affirms Defense Verdict Despite Plaintiffs’ Claim Judge Erroneously Failed to Instruct Jury that “Substantial Contributing Factor” to Plaintiffs’ Injuries Need Not Be “But For” Cause of Same, as Plaintiffs Failed to Request Instruction
  • Massachusetts Federal District Court Holds Plaintiff Could Not Prove Causation in Manufacturing Defect Suit Due to Lack of Proof Alleged Defect Was Caused by Manufacturer Rather than Plaintiff’s Employer

Excerpt:

Massachusetts Federal District Court Holds Hospital Not Fraudulently Joined  in Medical Device Suit, as Warranty Claim Asserting Hospital Was Product Seller Rather than Service Provider Has Reasonable Basis; No Federal Question Presented as Food, Drug and Cosmetic Act Does Not Completely Preempt State Law so Claims Could Only Arise under Federal Law

Plaintiff in Phillips v. Medtronic, Inc., 2010 WL 4939997 (D. Mass. Dec. 1, 2010), developed inflammatory masses causing pain and loss of certain functions after hospital treatment that included the implantation of two intrathecal pain pumps. The United States Food and Drug Administration (“FDA”) had issued pre-market approvals for the devices prior to plaintiff’s treatment, but several years after that treatment the manufacturer partially recalled the pumps after discovering an increase in reports of inflammatory masses. 

Download the Foley Hoag January 2011 Product Liability Update (.pdf)