Product Liability Update

Product Liability Update - February 2021

March 16, 2021

February 2021

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 State Law Claims Against Manufacturer Of FDA-Approved Medical Device “Parallel” Federal Law Requirements And Hence Are Not Preempted Despite Failure To Identify Requirements Allegedly Violated, But Claims Not Adequately Pled As Allegations Of Inadequate Warning, Adulterated Product and Causation Were Mere “Labels and Conclusions” Without Factual Allegations Making Claims Plausible

  • Massachusetts Federal Court Holds No Jurisdiction Over Manufacturer And Distributor Defendants Under Long-Arm Statute For Claims Involving In-State Injury From Out-Of-State Design, Manufacture, Warnings And Sale Where Only Basis For Finding Regular Massachusetts Contacts Was Retailer’s Characterization Of Product As “Featured,” And Due Process Forbids Jurisdiction Since Claims Did Not Arise Out Of Or Relate To Any In-State Conduct By Defendants

  • Massachusetts Federal Court Holds “Made From Real Ginger” Label On Ginger Ale Not Fraudulent Or Deceptive Where Product Contained Some Ginger-Derived Flavoring, As Label Was Literally True And No Reasonable Consumer Would Interpret It As Promising Actual Ginger Root Or Its Associated Health Benefits

NEW YORK/NEW JERSEY SUPPLEMENT

  • Second Circuit Holds Trial Court Properly Excluded Experts’ General Causation Opinions For Failing To Reliably Apply Scientific Methodologies—Which Trial Court Noted Included Failing To Consider Known Contrary Evidence And Citing Study For Conclusion Not Reached—And Identify Supporting Studies, And Properly Granted Summary Judgment For Lack Of Proof Of General Causation

  • New York Federal Court Holds Allegation Of “Natural” Label Despite Synthetic Ingredients Adequately Pleads State Deceptive Practices And False Advertising Claims, Express Warranty Claim Fails For Conclusory Pleading Of Notice Of Breach Within Reasonable Time And “Natural” Was Not Promise Of Freedom From Defect Or Specific Performance Level So As To Constitute Warranty Under Magnuson-Moss Warranty Act

  • New York Federal Court Permits Defendants’ Partially Destructive Testing Of Allegedly Defectively Manufactured Cooking Spray Can, As Its Thickness Was Directly Relevant To Defense That Can Was Within Specifications And Plaintiff Did Not Show Prejudice Or Propose Viable Alternative To Obtain Desired Evidence

Excerpt:

Massachusetts Supreme Judicial Court Holds State Law Claims Against Manufacturer Of FDA-Approved Medical Device “Parallel” Federal Law Requirements And Hence Are Not Preempted Despite Failure To Identify Requirements Allegedly Violated, But Claims Not Adequately Pled As Allegations Of Inadequate Warning, Adulterated Product and Causation Were Mere “Labels and Conclusions” Without Factual Allegations Making Claims Plausible

In Dunn v. Genzyme Corporation, 486 Mass. 713 (2021), a patient sued the manufacturer of a knee injection medical device in Massachusetts Superior Court, alleging that immediately after her injections she suffered pain that led to falls, hospitalization and other injuries. She asserted claims, among others, for negligence, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and unfair and deceptive practices in violation of Mass. Gen. L. ch. 93A because the device was not accompanied by proper warnings, and was “adulterated” and thus defectively manufactured, with no further details other than that this conduct was in violation of the United States Food and Drug Administration (“FDA”)’s current good manufacturing practices and labeling regulations.

Download the February 2021 Foley Hoag Product Liability Update (pdf).