Product Liability Update

Product Liability Update: November 2019

December 4, 2019

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 Plaintiff Adequately Alleges Deceptive Practices Claim For No-Hazelnut Coffee Labeled “Hazelnut Créme” Despite Ingredient List Excluding Hazelnuts And Mentioning Artificial Flavors, Allegation Of Deception On Purchase Sufficiently Particular As Exact Date And Location Not Needed For Defendant To Respond, And Claim Not Preempted by Food, Drug & Cosmetic Act As Plaintiff Alleged FDCA Violation That Independently Violated State Law
  • Massachusetts Federal Court Holds Class Certification Of Deceptiveness Issues In Cosmetic Device Marketing Action Not Superior Method For Resolving Controversy As Individual Causation Issues Would Remain, And Varying Representations Made Plaintiffs’ Claims Neither Common Nor Typical; Summary Judgment Granted As Plaintiffs’ Nationwide Claims Did Not Occur Primarily In Massachusetts, Contracts Disclaimed Merchantability And Unjust Enrichment Cannot Override Express Contract
  • First Circuit Holds Plaintiff In Contract-Based Warranty Of Merchantability Claim Need Not Prove Specific Failure At Issue Foreseeable By Reasonable Testing, Only That Product Not Fit For Reasonably Foreseeable Uses, Notification Of Intent To Change Design At Unspecified Time Not Sufficiently Explicit To Preclude Reasonable Reliance On Later Failure to Change Part Number As Representation Of Unchanged Design And Defendants’ Pervasive Control Of Subsidiaries Sufficient To Establish Subsidiaries Were Their Agents  
  • Massachusetts Federal Court Compels Production of Communications Between Plaintiffs and Consulting Expert Who Authored Key Study On Which Plaintiffs’ Testifying Experts Relied, Holding Some Communications Outside Consulting Period, And Discovery Needed Based On Expert’s Concealment Plaintiffs Funded Study And Litigation Misconduct In Hiring Consulting Expert To Publish Study And Other Experts To Testify Based On It
  • Massachusetts Federal Court Precludes Opinion Of Allergist and Immunologist Regarding Pharmacist’s Standard Of Care For Dispensing Antibiotic And Causation of Stevens-Johnson Syndrome Where Expert Admitted He Had No Knowledge Of Standard Of Care, His Only Knowledge Of Syndrome Came From One Seminar And His Opinion Plaintiff Had Syndrome Was Based Solely on Inadmissible Affidavit Of Precluded Expert

NEW YORK/NEW JERSEY SUPPLEMENT

  • New York Supreme Court Holds Asbestos in Some Of Defendant’s Talc Products And In Supplying Mines Sufficient To Support Inference Plaintiff’s Specific Products Had Asbestos, And Fiber Release Studies Plus Medical Expert’s “No-Safe Level” Opinion Sufficient To Support Finding Asbestos Caused Plaintiff’s Mesothelioma
  • New York Federal Court Precludes Engineering Expert’s Opinion Lawnmower Design Was Defective For Lack Of Shutoff Upon One-Handed Operation As Unsupported By Reliable Methodology Or Others’ Adoption Of Such Feature, And Opinion English-Only Warnings Were Defective Where Expert Failed To Account For Employer’s Ignoring Defendant’s Warnings And Offer Of Spanish Warnings

Excerpt:

First Circuit Holds Plaintiff Adequately Alleges Deceptive Practices Claim For No-Hazelnut Coffee Labeled “Hazelnut Créme” Despite Ingredient List Excluding Hazelnuts And Mentioning Artificial Flavors, Allegation Of Deception On Purchase Sufficiently Particular As Exact Date And Location Not Needed For Defendant To Respond, And Claim Not Preempted by Food, Drug & Cosmetic Act As Plaintiff Alleged FDCA Violation That Independently Violated State Law

In Dumont v. Reily Foods Co., 2019 U.S. App. LEXIS 23710 (1st Cir. 2019), plaintiff bought a coffee called “Hazelnut Créme” that contained no hazelnuts and sued the manufacturer in the United States District Court for the District of Massachusetts, alleging the label violated Mass. Gen. L. ch. 93A, the state unfair and deceptive practices statute. The district court granted defendant’s motion to dismiss, holding the complaint contained insufficient detail regarding the circumstances of plaintiff’s purchase and hence violated Fed. R. Civ. P. 9(b)’s requirement that fraud be pled with particularity.

Download the November 2019 Foley Hoag Product Liability Update (pdf).