Product Liability Update

Product Liability Update: April 2018

April 10, 2018

Foley Hoag LLP publishes this quarterly Update primarily concerning developments in product liability and related law from federal and state courts applicable to Massachusetts, but also featuring selected developments for New York and New Jersey. 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

Included in this Issue:


  • Massachusetts Supreme Judicial Court Recognizes Claim Against Brand-Name Drug Manufacturer By Generic Drug User Where Failure To Warn Is Reckless
  • Massachusetts Superior Court Holds “Late and Limited” Personal Representative Lacks Authority to Pursue Either Decedent’s Pre-Death Tort Claims Or Wrongful Death Claims
  • Massachusetts Federal Court Holds Implied Warranties Do Not Explicitly Extend To Future Performance, So Claims Accrue Under Statute of Limitations On Delivery, But Express Warranty For Period Of Years Does So Extend, Hence Claims Accrue On Plaintiff’s Knowledge of Alleged Defect
  • Massachusetts Federal Court Holds No General Or Specific Jurisdiction Over Component Product Distributor As It Was Not Incorporated Or Headquartered in Massachusetts, And Its Sales And Installation Activity Out Of Which Claims Arose Did Not Take Place In, And Were Not Directed To, Massachusetts
  • Massachusetts Superior Court Holds Putative Class Action Not Mooted by Defendant’s Unaccepted Tender of Full Damages To Representative Plaintiff, Class Certification Not Proper For Fraud And Similar Claims Due To Individualized Reliance Issues But Proper For Unfair And Deceptive Practices Claim Where Only Damages Would Be Individualized


  • New York Appellate Division Holds Under Sophisticated Intermediary Doctrine Product Manufacturer’s Warnings To Plaintiffs’ Employer About Product Risks Merely Some Evidence Of Adequate Warning, Not Complete Defense As Matter Of Law, And Evidence Plaintiffs Sometimes Disregarded Employer’s Safety Policies Insufficient To Negate Causation As To Manufacturer Warnings


Massachusetts Supreme Judicial Court Recognizes Claim Against Brand-Name Drug Manufacturer By Generic Drug User Where Failure To Warn Is Reckless

In Rafferty v. Merck & Co., 479 Mass. 141 (2018), plaintiff alleged defendant negligently failed to update the label for its brand-name prescription prostate drug to warn that sexual side effects could persist even after discontinuing. Although plaintiff never used defendant’s drug, but only its generic equivalent, he contended defendant owed a duty to generic users because defendant knew that under the Federal Food, Drug and Cosmetic Act (“FDCA”) generic manufacturers were required to use the same warning label as the brand-name drug.  Plaintiff also asserted defendant’s failure to warn violated Mass. Gen. L. ch. 93A, the state unfair and deceptive practices statute.

Download the April 2018 Foley Hoag Product Liability Update (pdf).