Product Liability Update

Product Liability Update: October 2018

October 31, 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 www.foleyhoag.com

Included in this Issue:

MASSACHUSETTS

  • First Circuit Holds Personal Jurisdiction Over Foreign Software Services Provider On Claim Arising Under Federal Law Satisfies Fifth Amendment Due Process’ Minimum Contacts Requirement Because Defendant Knowingly Conducted Substantial Business Directly With United States Customers Through Website
  • First Circuit Holds Claims Alleging Prescription Eye Drop Manufacturers’ Bottles Dispensed Excessively Large Drops Preempted By FDA Regulations Prohibiting Changes To Dispenser Drop Size Without Prior Agency Approval, Meaning Of Regulations Generally Determined By Regulatory Language And Formal Agency Interpretations Rather Than Individual Agency Actions
  • Massachusetts Federal Court Holds Defendants’ Compliance With Applicable Safety Regulations Does Not Defeat Negligence Claim As Matter Of Law, Where Negligence Claim Survives Implied Warranty Of Merchantability Claim Must Survive As Well
  • Massachusetts Federal Court Holds Plaintiff’s Treating Physicians’ Expert Testimony Insufficient To Create Triable Issue That Prescription Drug Caused Plaintiff’s Conditions Where Testimony Only Stated Conditions Were Possible Effects Of Drug And Did Not Address Plaintiff’s Use Of Other Drugs With Same Effects

NEW YORK/NEW JERSEY SUPPLEMENT

  • New Jersey Supreme Court Holds (1) New Jersey Law Applies To Pharmaceutical Failure-To-Warn Claims By Multistate Plaintiffs As Manufacturing And Labeling Occurred In-State, (2) New Jersey Product Liability Act Presumption Of Adequacy Of FDA-Approved Warnings May Be Overridden By Clear And Convincing Evidence Manufacturer Had Newly Acquired Information Of Causal Association With Adverse Effect But Failed To Update Warnings Under FDA Regulations, (3) Presumption Not Overcome By Single Company Document Referring To Causation Rather Than Association
  • New Jersey Supreme Court Incorporates Four Daubert Factors for Assessing Admissibility Of Expert’s Opinion But Declines To Formally Adopt Daubert Standard, Holds Court Did Not Abuse Discretion In Excluding Expert Causation Opinion That Relied On Case Reports And Small Unpublished Studies To Contradict Conclusions Of Multiple Large Published Epidemiological Studies

Excerpt:

First Circuit Holds Personal Jurisdiction Over Foreign Software Services Provider On Claim Arising Under Federal Law Satisfies Fifth Amendment Due Process’ Minimum Contacts Requirement Because Defendant Knowingly Conducted Substantial Business Directly With United States Customers Through Website

In Plixer Int’l v. Scrutinizer GmbH, 2018 WL 4357137, 2018 U.S. App. LEXIS 25981 (1st Cir. Sep. 13, 2018), a Maine computer software and hardware company sued a German corporation that offered a global interactive English-language software creation website in the United States District Court for the District of Maine for infringement of plaintiff’s registered trademark “Scrutinizer.”  Plaintiff used its mark in the field of software and hardware analysis, and alleged defendant’s use of the term caused confusion, mistake or deception as to the source of its services.

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