Product Liability Update

Product Liability Update: August 2020

August 17, 2020

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 Finds No Personal Jurisdiction Over Breach Of Contract Claims Against Alabama Online Educational Institution Where Contract Was Created While Plaintiff Was Alabama Resident And His Massachusetts Residence When Dispute Arose Was Result of His Unilateral Action And Did Not Constitute Defendant’s “Purposeful Availment” Of Benefits Of Conduct In Massachusetts

  • Massachusetts Federal Court Holds In Collective Action Under Fair Labor Standards Act That Due Process Only Requires Claims Of Named Plaintiffs, Not All Class Members, To Arise Out Of Defendant’s Contacts With Forum, Applying Court’s Prior Similar Ruling In Class Action Under Federal Rules Of Civil Procedure

  • First Circuit Holds Consumer Plausibly Alleged Deceptive Practices Claim Where Vegetable Oil Containing GMOs Was Labeled “100% Natural,” And Claim Not Permitted By FDA Labeling Policy Or Preempted By National Bioengineered Food Disclosure Standard Because, Although They Do Not Require Disclosure Of GMOs, They Do Not Address Nondisclosure In Context Of “Natural” Labeling



  • Massachusetts Appeals Court Holds No Triable Claim Against Manufacturer Of Allegedly Contaminated Drug Vial Where Plaintiff Had No Evidence To Contradict Manufacturer’s Sterility Tests, Medical Defendants Made No Implied Warranties Where Sale Of Vial Was Merely Incidental To Provision Of Medical Services, But Doctor’s Failure To Inspect Vial Before Injection Created Triable Medical Malpractice Claim 



  • Massachusetts Federal Court Holds Massachusetts Contacts of Defendant’s Subsidiaries Not Basis For Personal Jurisdiction Over Defendant, As Overlapping Management Personnel Was Insufficient To Pierce Corporate Veil Between Defendant And Subsidiaries Where Management Acts Were Not Contrary to Subsidiaries’ Interest And Instead To Parent’s Advantage



  • First Circuit Affirms Forum Non Conveniens Dismissal of Suit Against Massachusetts Nuclear Reactor Designer For Japanese Disaster, Holding Japan Is Adequate Forum Even Though Statutory Scheme Only Allows Recovery Against Plant Operator, And Court Could Properly Consider Availability Of Administrative Compensation In Addition To Litigation

NEW YORK/NEW JERSEY SUPPLEMENT

  • Second Circuit Holds Plaintiffs Seeking Medical Monitoring Costs From Alleged Groundwater Polluter Sufficiently Alleged Physical Harm Through Elevated PFOA Blood Levels, Property Owners Suffering Groundwater Contamination Plus Remediation Costs Sufficiently Alleged Property Damage Beyond Mere Diminution In Value For Negligence And Strict Liability Claims And Private Well Owners Alleged Sufficient Injury For Trespass And Private Nuisance Claims

  • New Jersey Federal Court in Multi-District Litigation Claims Of Ovarian Cancer From Asbestos In Talc Products: (1) Allows Admission Of In Vitro Ovarian Cell Experiments But Not Opinion Of Human Causation Based On Same; (2) Allows Some Microscopy Findings Of Trace Asbestos In Defendants’ Talc But Not Opinion Of “Significant Exposure” From Same; And (3) Permits Opinion Of General Causation Of Ovarian Cancer From Perineal Talc Use Despite Public Health Agencies’ Failure To Find Association And Arguments Of Unsupported “Bradford Hill” Causation Criteria

Excerpt:

First Circuit Finds No Personal Jurisdiction Over Breach Of Contract Claims Against Alabama Online Educational Institution Where Contract Was Created While Plaintiff Was Alabama Resident And His Massachusetts Residence When Dispute Arose Was Result of His Unilateral Action And Did Not Constitute Defendant’s “Purposeful Availment” Of Benefits Of Conduct In Massachusetts

In Chen v. United States Sports Acad., Inc., 956 F.3d 45 (1st Cir. 2020), a Massachusetts plaintiff sued an online educational institution, incorporated and headquartered in Alabama, in Massachusetts superior court, asserting breach of contract, unfair and deceptive practices and other claims after the school allegedly reneged on an agreement that plaintiff could obtain his doctoral degree in sports management by submitting a capstone portfolio, and instead insisted that he complete a comprehensive examination.  Plaintiff was an Alabama resident when he enrolled and entered into the alleged contract but a Massachusetts resident when the dispute arose. Defendant removed the case to the United States District Court for the District of Massachusetts based on the parties’ diversity of citizenship, and moved to dismiss for lack of personal jurisdiction. The court granted the motion and plaintiff appealed to the United States Court of Appeals for the First Circuit.

Download the August 2020 Foley Hoag Product Liability Update (pdf).