Product Liability Update

Product Liability Update - July 2021

August 5, 2021

July 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

Included in this Issue:


  • Massachusetts Federal Court Holds Negligence And Breach Of Implied Warranty Of Merchantability Claims Based On Allegedly Defective Design Of Vaginal Mesh Product Legally Deficient For Failure To Plead Existence Of Safer Alternative Design That Would Have Reduced Plaintiffs’ Risk Of Harm
  • Massachusetts Federal Court Finds “Clear Evidence” FDA Would Have Rejected Proposed Birth Defects Warning For Prescription Drug, And Hence Plaintiffs’ Warning Claims Were Preempted, As Subsequent Owner Of Drug Rights Had Proposed Similar Warnings To FDA But Agency Only Approved Statement That Risk Could Not Be Assessed Due To Inconsistencies and Methodological Limitations In Available Data
  • Massachusetts Appeals Court Holds Statute Of Repose Governing Claims For Defective Design Or Construction Of Improvements To Real Estate Bars Claims For Negligent Installation Of Water Heater That Caused Fatal Burns, As Defendant Plumbing Contractor Did Not Merely Install Specific Water Heater At Issue But Used Professional Judgment To Design And Calibrate Entire System

  • Second Circuit Holds Claims Against Generic Drug Manufacturer Not Plausibly Pled, As Patients’ Non-Receipt Of Medication Guides Did Not Support Inference Defendant Did Not Make Them Available, Claims Of Misleading Third-Party Physicians’ References Did Not Identify Specific Misrepresentations Or Defendant’s Authority To Correct Them, And Alleged Concealment Of Adverse Events Was Based On Arguable Underreporting Of Such Events Generally And Not Conduct Specific To Defendant
  • New Jersey Superior Court Appellate Division Holds Plaintiffs’ Expert Testimony That Non-Asbestiform (Non-Fibrous) Cleavage Fragments in Defendants’ Talc Could Cause Mesothelioma Not Shown Reliable, And Hence Inadmissible, Because Experts Could Not Support Opinions With Any Studies
  • New York Federal Court Holds Design And Manufacturing Defect And Failure To Warn and Negligent Misrepresentation Claims Against Hernia Mesh Manufacturer Inadequately Pled For Failure To Allege Economically Feasible And Safer Alternative Design, Defective Materials Or Workmanship In Plaintiff’s Specific Mesh Or Specific Inadequacies Or Misrepresentations In Labeling And How They Were Relied Upon

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