Product Liability Update

Product Liability Update

July 29, 2015

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:

  • Massachusetts Supreme Judicial Court Holds Failure-to-Warn Claim Against Drug Manufacturer Not Preempted Because There Was No “Clear Evidence” FDA Would Not Have Approved Plaintiffs’ Suggested Warning; Also Holds Non-Physician’s Causation Opinion Admissible and $63 Million Compensatory Award Not Excessive

  • Massachusetts Federal Court Holds Biologics Manufacturer Has No Product Liability or Other Duty Under Various States’ Laws to Sell Sufficient Product in FDA-Approved Dose to Meet Market Demand, and Bayh-Dole Act Governing Federally Funded Inventions Creates No Private Right of Action

  • Massachusetts Superior Court Holds Manufacturing Defect Claims Against Medical Device Manufacturer For Violations of Generally Applicable Requirements Under Food, Drug and Cosmetic Act Imposed Requirements Parallel to Federal Law and Hence Not Preempted

  • Massachusetts Federal Court Holds Foreign Manufacturer Subject to Personal Jurisdiction Because It Regularly Sent Employees to Massachusetts and Exercised Control Over U.S. Subsidiary with Extensive Massachusetts Contacts, Including Sale of Product Causing Plaintiff’s Injury

  • Massachusetts Federal Court Holds No Personal Jurisdiction Over Foreign Corporation Despite Its Contractual Relationship and Electronic Communications with Massachusetts Plaintiff Where Contract Was Not Executed in Massachusetts, Performed There or Governed By Its Laws

  • Massachusetts Federal Court Finds Cigarette Distributors Not Fraudulently Joined to Defeat Diversity Jurisdiction in Wrongful Death Action Where There Was No Evidence Plaintiff Would Not Pursue Claims Against Them and There Was Viable Breach of Warranty Claim For Sale of Allegedly Defective Product

  • Massachusetts Federal Court In Multi-District Litigation Holds Corporate Officer Lacking Personal Involvement with Products at Issue Was Fraudulently Joined and Thus Did Not Defeat Diversity Jurisdiction, and Massachusetts Statute of Limitations With “Discovery Rule” Does Not Apply to Plaintiffs Who Sued in Mississippi But Later Declared Massachusetts Their “Home Forum”

  • First Circuit Affirms Summary Judgment Against Claim Fire Truck Was Defectively Designed Due to Lack of Redundant Hose Restraints Where Plaintiff Offered No Expert Testimony Regarding Reasonableness of Design or Causation

  • First Circuit Holds Statute of Limitations Bars Asbestos Claims Against Defendants Protected by Bankruptcy Plan Where Claims Not Asserted within 30 Days After Plan’s Effective Date, When Automatic Stay Expired, and Plan Did Not Extend or Toll Limitations Period

Excerpt:

Massachusetts Supreme Judicial Court Holds Failure-to-Warn Claim Against Drug Manufacturer Not Preempted Because There Was No “Clear Evidence” FDA Would Not Have Approved Plaintiffs’ Suggested Warning; Also Holds Non-Physician’s Causation Opinion Admissible and $63 Million Compensatory Award Not Excessive

In Reckis v. Johnson & Johnson, 471 Mass. 272 (2015), a seven-year-old developed the severe dermatologic disease toxic epidermal necrolysis (TEN) after her parents gave her multiple doses of over-the-counter ibuprofen even after the girl began developing a rash.  The child’s parents, for themselves and on her behalf, sued the drug’s manufacturers in Massachusetts Superior Court for negligence, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability)...

Download the July 2015 Foley Hoag Product Liability Update (pdf).