Product Liability Update

Product Liability Update

July 28, 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 Issue:

  • United States Supreme Court Holds State Law Rule Mandating Classwide Arbitration of Consumer Claims Stands as Obstacle to Purposes of Federal Arbitration Act and Is Therefore Preempted 
  • United States Supreme Court Holds State Court General Jurisdiction Over Claims Against Corporation Unrelated to Its Contacts with State Proper Only Where Corporation Has “Continuous and Systematic” Contacts with State; Specific Jurisdiction Over Claims Arising from State Contacts Proper Only Where Corporation Deliberately Directed Activity Toward State 
  • United States Supreme Court Holds Failure-to-Warn Claims Against Generic Drug Manufacturers Preempted by Food, Drug and Cosmetic Act Because Act Requires Generic Drug’s Warnings to Be Same as Branded Drug’s and Thus Prohibits Generic Manufacturers from Unilaterally Changing Warnings 
  • Massachusetts Federal District Court Again Denies Class Certification for Third Party Payors Alleging Prescription Drug Manufacturer Fraudulently Promoted Drug, Holding Need for Doctor-by-Doctor Proof of Reliance on Fraud Caused Individual Issues to Predominate Over Common Ones and Rendered Class Action Unmanageable 
  • Massachusetts Federal Court Excludes Causation Testimony of Plaintiff’s Expert and Grants Summary Judgment for Drug Manufacturer Because Expert Report Failed to Adequately Disclose Basis for General and Specific Causation Opinions

Excerpt:

United States Supreme Court Holds State Law Rule Mandating Classwide Arbitration of Consumer Claims Stands as Obstacle to Purposes of Federal Arbitration Act and Is Therefore Preempted

In AT&T Mobility LLC v. Concepcion, --- U.S. ---, 131 S. Ct. 1740 (2011), consumers purchased mobile phone services advertised as including “free” phones. The seller did not charge for the phones, but did collect sales tax on their retail value. The consumers sued in the United States District Court for the Southern District of California, alleging false advertising and fraud, among other claims. The consumers’ complaint later was consolidated with a putative consumer class action asserting similar claims.

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