Product Liability Update

Product Liability Update

July 26, 2012

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:

  • First Circuit Affirms Judgment Against Generic Drug Manufacturer on Plaintiff’s Design Defect Claim, Holding: (i) Product May Be Found “Defective” on Proof It Is “Unreasonably Dangerous”; (ii) Design Defect Claim Not Preempted by Federal Food, Drug, and Cosmetic Act; and (iii) Expert Testimony Based on Adverse Event Reports to FDA Admissible
  • Massachusetts Appeals Court Affirms Directed Verdict for Paint Stripper Manufacturer on Failure-to-Warn Claim Where Product’s Labels Complied with Regulations Under Federal Hazardous Substances Act
  • Massachusetts Appeals Court Affirms Summary Judgment for Gun Manufacturer, Finding Claims Barred by Federal Protection of Lawful Commerce in Arms Act Because They Arose out of Criminal or Unlawful Use of Firearms
  • Massachusetts Appeals Court Affirms Judgment for Failure to Warn of Dangerous Conditions From Cleaning Products; Expert Testimony Regarding Asthma Risk and Causation Based on Plaintiff’s Exposure and Peer-Reviewed Scientific Literature Concerning Effects of Product Ingredients Held Admissible

Excerpt:

First Circuit Affirms Judgment Against Generic Drug Manufacturer on Plaintiffs Design Defect Claim, Holding: (i) Product May Be Found Defective on Proof It Is Unreasonably Dangerous; (ii) Design Defect Claim Not Preempted by Federal Food, Drug, and Cosmetic Act; and (iii) Expert Testimony Based on Adverse Event Reports to FDA Admissible

In Bartlett v. Mutual Pharmaceutical Company, Inc., 678 F.3d 30 (1st Cir. May 2, 2012), plaintiff suffered toxic epidermal necrolysis (TEN) after taking sulindac, a generic version of the non-steroidal anti-inflammatory drug Clinoril. Plaintiff sued the drugs manufacturer in New Hampshire state court for breach of warranty, negligence and fraud based on the drugs allegedly defective manufacture and design and the manufacturers alleged failure to warn of the drugs dangers. 

Download the Foley Hoag July 2012 Product Liability Update (.pdf)