Product Liability Update

Product Liability Update: May 2020

June 2, 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 Supreme Judicial Court Holds In Sequential Opinions That Wrongful Death Claims Are Derivative Of Decedent’s Own Claims And Therefore Subject To Arbitration Covenant And Liability Release Agreed To By Decedent

  • Massachusetts Superior Court Holds Renewal Statute, Permitting Suit Beyond Normal Limitations Period If Commenced Within One Year Of Dismissal Of Prior Timely Action For Matter Of Form, Applies Even To Claims Not Included in Original Action So Long As Based On Same Events

  • Massachusetts Federal Court Holds Due Process Permits Personal Jurisdiction Over Out-of-State Manufacturer Based On In-State Sale of Car By Predecessor Whose Liabilities Manufacturer Expressly Assumed, Joinder Of In-State Dealer Defeats Diversity Jurisdiction Where Statute Of Limitations May Not Have Expired Due To Tolling By Injured Party’s Mental Incapacity And Lack Of Evidence Joinder Was Fraudulent

  • Massachusetts Superior Court Holds SEC Filings Describing Foreign Parent And Domestic Subsidiary Collectively, And Shared Office, Insufficient To Support Personal Jurisdiction Over Parent For Subsidiary’s In-State Conduct, And No Evidence Established Parent’s Control Or Agency Relationship Regarding Conduct

  • Massachusetts Federal Court Holds No Evidence Revolving Door Malfunction Caused Injuries, As Plaintiff’s Testimony She Was Alone In Door Was Inadmissible As Not Based On Direct Perception And Expert’s Opinion Door Must Have Malfunctioned Despite No Defects On Inspection Was Based On Improper Res Ispa Loquitur Assertion

NEW YORK/NEW JERSEY SUPPLEMENT

  • New York Federal Court Holds Plaintiff Lacked Evidence Defendant Should Have Known Of Risk Of Chemical Burns Where Plaintiff Produced No Direct Evidence Of Such Knowledge, Such As Medical Studies, Prior Incidents Or Manufacturer Testing Results, And Expert’s Hindsight Opinion That Product Caused Plaintiff’s Burns Due To Individual Sensitivity Was Irrelevant To Defendant’s Knowledge At Relevant Time

  • New York Federal Court Excludes Testimony Of Plaintiffs’ Specific Causation Expert On Pelvic Mesh Design Defect Claims As Expert Did Not Explain Relationship Of Injuries To Any Alleged Defect But Rather Only To Mesh Itself, But Testimony Admissible On Claim For Failure To Warn Of Mesh Risks

Excerpt:

Massachusetts Supreme Judicial Court Holds In Sequential Opinions That Wrongful Death Claims Are Derivative Of Decedent’s Own Claims And Therefore Subject To Arbitration Covenant And Liability Release Agreed To By Decedent

In GGNSC Administrative Services, LLC v. Schrader, 484 Mass. 181 (2020), a decedent’s daughter and executor brought a wrongful death claim in Massachusetts Superior Court alleging that a nursing home’s negligence caused her mother’s death. The nursing home sued the daughter in the United States District Court for the District of Massachusetts to compel arbitration of the death claim based on an agreement signed by the daughter on her mother’s behalf upon nursing home admission to arbitrate any claims against the facility. The nursing home argued that because the daughter’s death claim was derivative of any claims the mother could have brought herself, it was subject to the arbitration agreement.

The federal court then certified two questions to the Massachusetts Supreme Judicial Court (“SJC”): (1) “Is the wrongful death claim of [decedent’s] statutory heirs derivative or independent of [decedent’s] own cause of action?”; and (2) “If the answer to the first question does not resolve the issue presented to the federal court, is [the daughter’s] wrongful death claim nonetheless subject to [decedent’s] Agreement that her ‘next of kin, guardian, executor, administrator, legal representative, or heir’ would arbitrate claims against [the nursing home]?”

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