Product Liability Update

Product Liability Update: March 2020

March 12, 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

  • Massachusetts Superior Court Holds State Attorney General Unfair And Deceptive Practices Claim Against Opioid Manufacturer Not Preempted Or Statutorily Exempt As FDA Only Approved Defendant’s Labeling, Not Marketing Practices, Public Nuisance Claim Adequately Supported By Allegations Of Interference With Public Health, And “Learned Intermediary” Doctrine Based On Adequacy Of Prescriber Labeling Did Not Apply As Defendant’s Deceptive Marketing Allegedly Affected Prescribers’ Decisions

  • Massachusetts Appeals Court Holds Plaintiff’s Counsel’s Closing Argument Improper In Referring To Himself And Jurors As “Us” And Defendants As “Them,” And Asking Jurors To Do “The Right Thing” For “Big Companies” That Refuse To Accept “One Shred Of Responsibility,” But Post-Verdict Objection To Argument Must Be Resolved Under New Trial Standard Rather Than Mere Possibility Of Jury Effect

  • Massachusetts Federal Court Refuses To Consider Adequacy Of Plaintiffs’ Specific Causation Evidence On Motions Designed To Address General Causation, And Holds Neither Counsel’s Statements Nor Experts’ Deposition Testimony Conceded Plaintiffs Lacked General Causation Evidence Where Statements Were Not Unambiguous Concessions Or Were Accompanied By Explanations Showing They Were Not Concessions

  • Massachusetts Federal Court Holds FDA Expert’s Opinions About Effect On Labeling Of Animal And Adverse Event Data Allegedly Not Fully Disclosed To Agency Admissible Where Based On Regulatory Record Even Without Independent Analysis Of Underlying Data, Opposing Expert’s Opinions Based On FDA Guidance And Practices But Not Drug-Specific Agency Statements Also Admissible, But Expert’s Opinions About Defendant’s Marketing Practices Inadmissible As Not Involving Regulatory Expertise 

NEW YORK/NEW JERSEY SUPPLEMENT

  • New York Federal Court Holds Plaintiff’s Ignoring Warning Not To Move Deep Fryer Without Draining Reduces But Does Not Bar Failure-To-Warn Claim Where Not Sole Cause Of Accident, Surveillance Video Not Needed To Prove Causation Nor Does Third-Party Spoliation Of Same Bar Recovery, And Expert’s Design Defect Opinions Admissible Despite Lack Of Testing And Calculations Where Based On Examination Of Product And Detailed Schematics

  • New York Federal Court Holds Operator Of Online Marketplace Not Liable In Tort Or Warranty For Damage Caused By Defective Product Sold By Third Party Through Marketplace Because Defendant Never Took Title To Product And Thus Was Not Part of Distribution Chain

Excerpt:

Massachusetts Superior Court Holds State Attorney General Unfair And Deceptive Practices Claim Against Opioid Manufacturer Not Preempted Or Statutorily Exempt As FDA Only Approved Defendant’s Labeling, Not Marketing Practices, Public Nuisance Claim Adequately Supported By Allegations Of Interference With Public Health, And “Learned Intermediary” Doctrine Based On Adequacy Of Prescriber Labeling Did Not Apply As Defendant’s Deceptive Marketing Allegedly Affected Prescribers’ Decisions

In Commonwealth v. Purdue Pharma, L.P., 26 Mass. L. Rep. 56 (Mass. Sup. Ct. 2019), the Massachusetts Attorney General sued a pharmaceutical manufacturer in Massachusetts Superior Court alleging defendant’s marketing and sale of prescription opioid products violated Mass. Gen. L. ch. 93A, the state unfair and deceptive practices statute, and caused a public nuisance. The complaint alleged defendant’s marketing tactics included targeting physicians already suspected of overprescribing and dispensing savings cards encouraging patients to stay on opioids longer, and that these tactics significantly contributed to the “opioid epidemic” that has caused thousands of Massachusetts overdoses and deaths. Defendant moved to dismiss both counts, arguing: (1) the claims were preempted as conflicting with the United States Food and Drug Administration (“FDA”)’s approval of the opioids’ sale and labeling; (2) the FDA approval mandated a liability exemption under ch. 93A; (3) defendant had not infringed any “public right” as required for a nuisance claim; and (4) the “learned intermediary” doctrine precluded liability for prescriptions written by medical professionals.

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