Foley Hoag LLP

SUMMARY

Foley Hoag's Product Liability Update is a quarterly update concerning developments in product liability and related law of interest to product manufacturers and sellers. 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. For questions or inquiries about the Product Liability & Complex Tort Practice Group, contact David Geiger at 617 832 1124.

Included in this Issue:

• United States Supreme Court Holds Federal Locomotive Inspection Act Preempts Entire Field of Regulating Locomotive Equipment, Including State Law Claims Alleging Defective Design or Failure to Warn Based on Asbestos Content 
• Massachusetts Federal Court Holds Supreme Court’s Wal-Mart v. Dukes Rulings That (i) Non-Incidental Monetary Relief Prevents Certifying Injunctive Class, and (ii) Class-Wide Common Question Exists Only Where it Drives Resolution of Entire Action, Do Not Justify Decertifying Class Action Seeking Monetary Award for Medical Monitoring Program 
• First Circuit Holds Expert Testimony, Based on Odds Ratios from Published Studies, that Drug Treatment Increases Chances of Recovery by More than 50% Inadmissible to Prove Patient More Likely than Not Would Have Recovered with Treatment 
• Massachusetts Federal Court Holds Admissible Experts’ Causation Testimony Based on Epidemiologic Study Finding Statistically Significant Increase in Breast Cancer Among Relevant Subgroup of Women Exposed to Drug Even Though No Such Increase Found in Women Overall 
• Massachusetts Federal Court Holds FDA Pre-Market Approval of Medical Device Consisting of Multiple Components Preempts State Law Claims Alleging Defective Design of Individual Component 
• Massachusetts Federal Court Holds Named Plaintiffs’ Claims Not Typical of Putative Class, and Plaintiffs Could Not Adequately Represent Class, Where Defendant Sought Indemnity from Previously Settling Parties Because Settlement Required Some Class Members, But Not Plaintiffs, to Indemnify Settling Parties for Any Judgment
  Massachusetts Federal Court Holds Contractual Privity Required for Breach of Warranty Claims by Commercial Entities Against Product Manufacturers and Sellers

SUMMARY

Foley Hoag's Product Liability Update is a quarterly update concerning developments in product liability and related law of interest to product manufacturers and sellers. 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. For questions or inquiries about the Product Liability & Complex Tort Practice Group, contact David Geiger at 617 832 1124.

Included in this Issue:

• First Circuit Upholds Design Defect Verdict Involving Table Saw, Holding Plaintiff Adequately Proved Availability of Feasible Alternative Design Despite Weight and Price Differences From Existing Saw, and Hence Verdict Also Did Not Impermissibly Ban Entire Category of Product
• Massachusetts Superior Court Finds Personal Jurisdiction Over Foreign Ski Manufacturer Where Plaintiff Purchased Allegedly Defective Skis in Massachusetts from Store Located Through Search Function on Manufacturer’s Website
• Massachusetts Federal Court Holds Trademark Licensor that Substantially Participated in Design of Excavating Machine Liable as “Apparent Manufacturer” Even Though Licensor Did Not Participate in Machine’s Sale
• Massachusetts Federal Court Holds Plaintiffs in Class Actions Arising Out of Lead in Fruit Products Lacked Injury in Fact, and Hence Standing, Where Products Had Harmed No One and Complied with Federal Standards; Threat of Future Physical Injury Too Speculative, and Plaintiffs Did Not Allege Diminished Value That Could Constitute Economic Injury
• Massachusetts Federal Court Finds Testimony of Frequent Plaintiff’s Expert on Design of Stove Burner Knob Admissible Because Expert Was Qualified as Licensed Mechanical Engineer, and Methodology of Relying on Personal Inspection, Fire Investigator Findings and Prior Incident Reports Was Reliable; Potential Bias Was Matter for Cross-Examination
• Massachusetts Federal Court Holds Expert Testimony Supporting Causal Link Between Infant Formula and Plaintiff’s Injuries Required to Prevail on Claims; Court Stays Discovery and Dismisses Without Prejudice for Failure to Produce Expert Report or Affidavit

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included in this Issue:

• First Circuit Holds Trailer Manufacturer Not Liable for Negligence or Breach of Implied Warranty of Merchantability Where Trailer Was Built to Plaintiff’s Employer’s Exact Specifications and Design Was Not Obviously Unsafe
• Massachusetts Superior Court Holds Expert Testimony Regarding Technical Feasibility of Extracting Nicotine to Below Addiction Thresholds and Adding Flavors to Resulting Product Admissible Because Supported by Scientific Research and Data, But Testimony Concerning Consumer Reaction to Product Inadmissible Due to Lack of Such Data
• Massachusetts District Court Appellate Division Holds Statute of Limitations Bars Claim for Breach of Implied Warranty of Merchantability for Roofing Shingles Delivered Twenty Years Earlier Because Any Such Claim Accrued on Tender of Delivery, But Express Warranty Claim Survives Because of Fact Dispute Regarding Any Time Limitations Imposed by Warranty

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included in this Issue:

• United States Supreme Court Holds State Law Rule Mandating Classwide Arbitration of Consumer Claims Stands as Obstacle to Purposes of Federal Arbitration Act and Is Therefore Preempted 
• United States Supreme Court Holds State Court General Jurisdiction Over Claims Against Corporation Unrelated to Its Contacts with State Proper Only Where Corporation Has “Continuous and Systematic” Contacts with State; Specific Jurisdiction Over Claims Arising from State Contacts Proper Only Where Corporation Deliberately Directed Activity Toward State 
• United States Supreme Court Holds Failure-to-Warn Claims Against Generic Drug Manufacturers Preempted by Food, Drug and Cosmetic Act Because Act Requires Generic Drug’s Warnings to Be Same as Branded Drug’s and Thus Prohibits Generic Manufacturers from Unilaterally Changing Warnings 
• Massachusetts Federal District Court Again Denies Class Certification for Third Party Payors Alleging Prescription Drug Manufacturer Fraudulently Promoted Drug, Holding Need for Doctor-by-Doctor Proof of Reliance on Fraud Caused Individual Issues to Predominate Over Common Ones and Rendered Class Action Unmanageable 
• Massachusetts Federal Court Excludes Causation Testimony of Plaintiff’s Expert and Grants Summary Judgment for Drug Manufacturer Because Expert Report Failed to Adequately Disclose Basis for General and Specific Causation Opinions

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included in this Issue:

• United States Supreme Court Holds Federal Vaccine Statute Expressly Preempts All State Law Design Defect Claims Against Vaccine Manufacturers Rather Than Only Claims Where Injury Could Not Have Been Avoided By Feasible Alternative Design 
• United States Supreme Court Holds State Tort Suits Claiming Automobile Manufacturers Should Have Installed Lap-and-Shoulder Belts Not Impliedly Preempted by Federal Motor Vehicle Safety Standard Because Preserving Manufacturer Choice of Safety Restraints Was Not Significant Federal Regulatory Objective
• Massachusetts Appeals Court Notes, But Does Not Address, Admissibility of Plaintiff’s Expert Testimony That “Each and Every Exposure to Asbestos” Is “Substantial Contributing Factor” to Disease; Declines to Decide Whether Manufacturer Has Duty to Warn of Dangers of Another Manufacturer’s Product
• First Circuit Holds Expert Opinion That Benzene Causes Rare Leukemia Subtype Admissible Because Applying “Bradford Hill” or “Weight of the Evidence” Criteria to Conclude Association Between Benzene and Disease Was Causal Is Scientifically Reliable; Court, However, Appears to Ignore Lack of Scientifically Reliable Evidence of Association 
• Massachusetts Federal District Court Holds Defense Expert’s Testimony on Lack of Causal Link Between Drug and Suicide Attempts Admissible Because Expert Relied On His Own Peer-Reviewed Study, But Precludes Testimony on Suicidal Thoughts as Study Was Limited to Suicide Attempts

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included in this update:

• Massachusetts Federal District Court Holds Hospital Not Fraudulently Joined in Medical Device Suit, as Warranty Claim Asserting Hospital Was Product Seller Rather than Service Provider Has Reasonable Basis; No Federal Question Presented as Food, Drug and Cosmetic Act Does Not Completely Preempt State Law so Claims Could Only Arise under Federal Law 
• Massachusetts Federal District Court Holds Retailer Not Liable in Negligence as “Apparent Manufacturer” for Failure to Warn of Product Risks Where Retailer’s Name Was Not on Product and There Was No Evidence Plaintiffs Believed Retailer Was the Manufacturer
• First Circuit Reverses Trial Court Decision to Exclude Expert From Testifying Based on Pro-Plaintiff Bias, Holding Focus of Inquiry Should Be On Expert’s Specialized Knowledge and Whether Testimony Will Assist Jury in Understanding Fact in Issue
• Massachusetts Appeals Court Affirms Defense Verdict Despite Plaintiffs’ Claim Judge Erroneously Failed to Instruct Jury that “Substantial Contributing Factor” to Plaintiffs’ Injuries Need Not Be “But For” Cause of Same, as Plaintiffs Failed to Request Instruction
• Massachusetts Federal District Court Holds Plaintiff Could Not Prove Causation in Manufacturing Defect Suit Due to Lack of Proof Alleged Defect Was Caused by Manufacturer Rather than Plaintiff’s Employer

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and
related law of interest to product manufacturers and sellers.

Included in this update:

• Massachusetts Appeals Court Holds Trademark Licensor That Substantially Participated in Design, Manufacture or Distribution of Product Is Liable as “Apparent Manufacturer” 
• First Circuit Affirms Judgment that Amended Complaint in Product Liability Action Filed Over a Year After Expiration of Statute of Limitations Did Not Relate Back to Original Complaint Because Defendant Added by Amended Complaint Was Not on Notice of the Action Within 120 Days of its Filing 
• Massachusetts Federal District Court Holds Jury Instruction on Proof of Design Defect Need Not State Explicitly that Defendant May Be Liable If Product Is Unreasonably Dangerous to “Foreseeable Bystanders” as Well as Foreseeable Users 
• First Circuit Denies Interlocutory Appeal of Class Certification in Medical Monitoring Action by Smokers Against Cigarette Manufacturer, Holding Interlocutory Review Would Unnecessarily Impede Progress of Case 
• Massachusetts Federal District Court Grants Summary Judgment for Pharmaceutical Manufacturer on Failure-to-Warn Claims Because Plaintiff Could Not Prove Drug Was Substantial Contributing Factor to Injuries or that Prescribing Physician Relied on Manufacturer’s Alleged Misrepresentation 
• Massachusetts Appeals Court Affirms Denial of New Trial in Defective Design Case Where Defense Counsel Made Inappropriate Comment During Closing About Harm to Society When Manufacturers Are Sued, But Trial Judge Effectively Cured Any Prejudice With Instruction that Jury Disregard Remark

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Supreme Judicial Court Holds Face Amount of Medical Bills Admissible as Evidence of Reasonable Value of Services Rendered to Personal Injury Plaintiff, But Range of Payments Generally Accepted by Plaintiff's Providers in Satisfaction of Such Bills Also Admissible

• Massachusetts Federal District Court Certifies Medical Monitoring Injunctive and Damages Class Action for Smokers with Only Subcellular Injury, Holding Alleged Common Need for Monitoring Supported Classwide Injunctive Relief and Predominated Over Individualized Issues

• First Circuit Affirms Dismissal of Putative Class Action Against Manufacturer of Recalled Heartworm Medication, Holding Massachusetts Unfair and Deceptive Practices Statute Requires Proof of Economic Loss

• Massachusetts Federal District Court Precludes Manufacture and Design Defect and Causation Testimony From Plaintiff's Expert and Grants Summary Judgment Where Expert's Only Training and Experience Were in Accident Reconstruction

• Massachusetts Appeals Court Affirms Preclusion of Expert Testimony that Holster Was Unfit for Particular Purpose Because Expert Had No Experience With Particular Holster or Holster Design Generally

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Federal District Court Dismisses Product Liability Claims Based on “Benefit-of-the Bargain” Theory, Holding Neither Pure Economic Loss Nor Apprehension of Future Harm Is Legally Cognizable Injury Where Product Has Not Malfunctioned

• First Circuit Vacates Denial of Class Certification in Environmental Tort Claims, Holding that, on Fuller Analysis, Common Issues May Predominate and Class Treatment May Be Superior Method of Litigating Claims 

• Massachusetts Federal District Court Holds Statute Limiting Exclusions of Warranty Applies Only to Consumer Transactions, Finds Disputes Concerning Whether Buyer Gave “Precise and Complete” Specifications Negating Implied Warranty and Whether Plaintiff Was Sophisticated User 

• Massachusetts Appeals Court Holds that Actual Filing, Rather Than Mere Service, of Motion to Amend Complaint to Add Defendants Is Required to “Commence” Action Against Such Defendants for Purpose of Statute of Repose

• Massachusetts Federal District Court Holds Plaintiff in Product Liability Action May Proceed Under Theory of Res Ipsa Loquitor in Absence of Expert Testimony Establishing Product Defect, But Expert Testimony Is Required to Prove Medical Causation

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Supreme Judicial Court’s Recognition of Cause of Action for Projected Medical Monitoring Costs Based on Mere Subclinical Physiological Changes and Increased Risk, Rather Than Clinically Manifest Harm, Is Significant for Tort Law in Massachusetts, and Perhaps Elsewhere

• First Circuit Articulates Criteria for Accepting Discretionary Appeal Under Class Action Fairness Act of Order Remanding Putative Class Action to State Court, Holds Class Certifiability Is Irrelevant to Existence of Federal Jurisdiction

• First Circuit Holds Defendant’s Opposition to Plaintiff’s Motion to Remand Cured Failure to Consent to Removal, Holds District Court Abused Discretion in Precluding Testimony by Untimely-Disclosed Expert Where Practical Effect of Preclusion was Dismissal and Party Offering Expert Had Not Violated Other Court Orders

• Massachusetts Federal District Court Remands Claims to State Court Based on Defendants’ Failure to Express Unanimous Consent to Removal Within Thirty Days of Service of Both First- and Last- Served Defendants

• Massachusetts Federal District Court Transfers Putative Class Action to California Federal District Court Based in Part on Pendency of Factually Identical Class Action There

• Massachusetts Superior Court Holds Claim That Cigarettes Should Have Delivered Lower Nicotine Dose Does Not Improperly Seek to Ban Entire Product Category, Plaintiff Need Not Show Decedent Would Have Used Low-Nicotine Product to Prove Causation

• Massachusetts Federal District Court Permits Expert Testimony Regarding Hastening of Amyotrophic Lateral Sclerosis Symptoms by Toluene Despite Lack of Exposure Measurements and Epidemiological Studies, Excludes Physician Testimony About Negligence As Invading Province of the Jury

• Massachusetts Superior Court Denies Summary Judgment for Asset Purchaser Regarding Successor Liability Where Purchaser Retained Two Key Seller Employees, Honored Seller’s Warranties and Used Seller's Logo, and Seller Ceased Operations 

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

In a decision rendered in the context of a cigarette product liability case but with broad implications for product manufacturers and sellers, the Massachusetts Supreme Judicial Court (“SJC”) has recognized a cause of action for the projected costs of medical monitoring when a product has not caused any actual disease or illness but solely subclinical physiological changes associated with an increased risk of disease.  Plaintiffs in Donovan v. Philip Morris, USA, Inc., SJC-10409 (Mass. October 19, 2009), filed suit in the United States District Court for the District of Massachusetts seeking to pursue a class action on behalf of all Massachusetts residents age 50 or older with histories of having smoked defendant’s cigarettes for twenty or more pack-years, asserting claims for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), negligence and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute) based on the cigarettes’ allegedly defective design in delivering unreasonably high levels of carcinogens.

 

 

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• First Circuit Affirms Summary Judgment for Vinyl Chloride Suppliers, Holding Sophisticated User Doctrine Only Required Analysis of Decedent’s Employer’s Knowledge of Product’s Risks, Not Whether Suppliers Reasonably Relied on Employer to Transmit Warnings to Employees

• First Circuit Reverses Summary Judgment for Beryllium Suppliers, Holding Jury Could Find Plaintiff Reasonably Did Not Know Likely Cause of Her Harm Until Limitations Period and Sophisticated User Doctrine Does Not Apply Because Jury Could Find Plaintiff’s Employer Did Not Know Particulars of Beryllium Risk

• Massachusetts Federal District Court Finds Jurisdiction Over Complaint Against Fetal Gender Detector Manufacturer and Distributor, Holding Counsel’s Affidavit Showed Amount in Controversy Exceeded Jurisdictional Minimum Under Class Action Fairness Act and Plaintiffs Alleged Defendant Had Opportunity to Cure Warranty Breach as Required for Magnuson-Moss Act Jurisdiction

• Massachusetts Federal District Court Remands Asbestos Failure-to-Warn Claims to State Court, Holding Defendants Demonstrated No Colorable Federal Contractor Defense Where They Did Not Show Government Prescribed Content of Warning Rather Than Simply Remaining Silent

• Massachusetts Superior Court Holds Order Requiring Nursing Home to Disclose Non-Party Patient’s Medical Records Relevant to Litigation Does Not Violate Health Insurance Portability and Accountability Act (HIPAA) or Massachusetts Unfair or Deceptive Practices Statute

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Supreme Judicial Court Holds Sale Terms Mandating Individualized Arbitration of Claims Violate Public Policy of Unfair and Deceptive Practices Statute Favoring Classwide Resolution of Small-Value Consumer Claims
• Massachusetts Federal District Court Holds Requirement that Electronic Documents be Produced as Kept in Usual Course of Business Requires Production of Files in “Native” Format But Does Not Require Producing Party to Scan Electronic Documents for Optical Character Recognition, Refuses to Require Blanket Production of Electronic Documents’ Metadata
• Massachusetts Federal District Court Holds Plaintiffs’ Pharmaceutical Causation Experts’ Opinions Admissible Because Based on Extrapolation of Collective Epidemiological Study to Drug at Issue, Evidence of Biological Plausibility and Adverse Event Reports
• Massachusetts Federal District Court Denies Certification of Putative Class of Consumers and Third-Party Payors Alleging Fraudulent Marketing of Drug Because Causation Could Not Be Demonstrated by Classwide Statistical Evidence and Hence Common Issues Regarding Marketing Would Not Predominate Over Individual Issues of Causation
• Massachusetts Federal District Court in Actions Alleging Off-Label Promotion of Drug Dismisses Fraud Claims For Failure to Allege Physicians’ Reliance on a Particular Misrepresentation, Refuses to Dismiss Fraudulent Concealment Claims as Duplicative of Failure-to-Warn Claims Because of Scienter Requirement of Fraudulent Concealment

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• United States Supreme Court Holds State Law Failure-to-Warn Claims Involving Prescription Drugs Not Preempted by FDA Approval of Warnings Absent Clear Evidence FDA Would Have Rejected Plaintiff’s Proposed Warning
• First Circuit Holds Class Action Fairness Act Requires Removing Defendant To Demonstrate “Reasonable Probability” That Amount In Controversy Exceeds $5 Million
• First Circuit Holds “Home State” Exception to Federal Jurisdiction Under Class Action Fairness Act Does Not Require Consideration of Citizenship of Class Members in Other Class Actions Arising Out of Same Factual Nucleus
• Massachusetts Supreme Judicial Court Holds “Light” Cigarettes Class Action Not Preempted by Cigarette Labeling and Advertising Act Based on United States Supreme Court Ruling, Not Subject to Chapter 93A Because FTC Consent Decree Did Not Affirmatively Permit Defendant’s Statement
• Massachusetts Federal District Court Dismisses Putative Class Action Against Manufacturer of Recalled Heartworm Medication Based on Economic Loss Rule and Plaintiff’s Inability to Show Compensable Loss Where She Received Product’s Expected Benefit

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

On March 11, 2009, the Massachusetts Public Health Council promulgated final regulations (105 CMR 970.000) for the administration of Chapter 111N of the Massachusetts General Laws, which governs the marketing activities of pharmaceutical and medical device manufacturing companies. When the Legislature passed Chapter 111N in August 2008 (as Section 14 of Chapter 305 of the Acts of 2008) (the “Law”), Massachusetts joined the District of Columbia and six other states in regulating the relationships between the pharmaceutical and medical device industries and physicians.

Understanding these final regulations is of significant importance to anyone involved in the Massachusetts biotechnology, health care, and drug and device sectors. The regulations apply broadly to pharmaceutical or medical device manufacturing companies (“PMDMCs”), including companies that are “directly” engaged in the packaging, repackaging, labeling, relabeling or distribution of prescription drugs, biologics or medical devices. In accordance with the requirements of the Law, the regulations establish a fine of $5,000 for each knowing and willful violation.

SUMMARY

Excerpt:

The Supreme Court yesterday decided Wyeth v. Levine, the long-awaited decision on preemption of state court product liability claims against the pharmaceutical manufacturers. In a 6 to 3 decision, the Supreme Court determined that the foundation of federal regulation for pharmaceuticals is that the drug manufacturer has the responsibility for the adequacy of its warnings. The decision by Justice Stevens, joined by Kennedy, Souter, Ginsburg and Breyer, rejected Wyeth’s argument that it was impossible to comply both with FDA regulations on warnings and with a state law duty, imposed by jury verdict, that a stronger warning against a particular method of administration of the drug was required. The Supreme Court also rejected, over a rigorous dissent, the proposition that state court product liability claims obstructed the purposes and objectives of the federal drug labeling regulations... (continues)

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• United States Supreme Court Holds Federal Cigarette Labeling and  Advertising Act Does Not Preempt State Law Claim Alleging Unfair and  Deceptive Advertising of "Light" Cigarettes
• Massachusetts Supreme Judicial Court Affirms Denial of Certification  of Nationwide Class Based on Lack of Opt-Out Rights Under Massachusetts  Law, Affirms Denial of Statewide Class Based on Dissimilarities Among  Class Members as to Statute of Limitations Defense
• Massachusetts Federal District Court Holds Class Counsel Fees in  Claims-Made Settlements Will Be Awarded By Reference to Value of  Benefits Actually Claimed By Class Members, Rather than Maximum Possible  Benefits
• Massachusetts Federal District Court Dismisses Claims Against  Missile System Manufacturer Because United States Army's Successful  Assertion of State Secrets Privilege Over System's Technical  Specifications and Other Information Prevented Manufacturer from  Presenting Fair Defense
• Massachusetts Superior Court Grants Summary Judgment For Crane  Manufacturer Because Crane Owner's Discarding of Allegedly Defective  Components Prevented Plaintiff From Proving Claims

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Federal District Court Grants Summary Judgment Against Failure-to-Warn Claim Involving Wall Heater Because Danger was Open and Obvious, and Against Design Defect Claim for Lack of Expert Testimony

• Massachusetts Federal District Court Remands Pharmaceutical Failure-to-Warn Claim to State Court, Holding Defendant’s Argument that Claim Challenged FDA’s Authority to Approve Warning Raised Preemption Defense Rather than Demonstrated that Claim Arises Under Federal Law

• Massachusetts Appeals Court Holds Employer’s Corporate Parent Cannot Be Held Vicariously Liable for Employer’s Allegedly Negligent Conduct Toward Employee Under Respondeat Superior Theory Where Suit Against Employer was Dismissed With Prejudice

• Massachusetts Appeals Court Reverses Judgment for Plaintiff on Chapter 93A Claims Based on Inadequate Notice Where Trial Court Did Not Construe Complaint to Allege Chapter 93A Claims Until First Day of Trial

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

Foley Hoag LLP’s interdisciplinary team counsels and protects the interests of its clients facing new realities, challenges and risks framed by today’s tumultuous economic and market conditions. By maintaining an active and engaged dialogue with our clients during this period of economic distress, our lawyers are better able to adapt to the changing legal needs of clients affected in the short term. More importantly, our immersion in their businesses and industries enables our lawyers to provide sound, strategic counsel to protect our clients’ interests in the longer term. The Economic Crisis Team delivers forward-thinking advice, focusing on long-standing core, integrated strengths of the firm.

Topics include:

• Financial investigations, enforcement proceedings and litigation
• Federal and state securities regulation
• Deal-making, corporate finance and investment restructuring
• Bankruptcy, corporate reorganization and financial disputes

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included In This Update:

• Massachusetts Supreme Judicial Court Holds Motor Vehicles’ Failure to Comply with Applicable Safety Regulations Constitutes Injury For Purposes of Unfair or Deceptive Practices Statute Even Where Plaintiffs Suffer No Physical Injury or Financial Loss; Also Adopts Heightened Pleading Standards
• Massachusetts Federal District Court Remands Asbestos Failure-to-Warn Claims to State Court Where Affidavits Failed to Demonstrate Colorable Federal Contractor Defense
• Massachusetts Federal District Court Upholds Removal of Asbestos Failure-to-Warn Claims to Federal Court Under Federal Officer Removal Statute Because Defendant Established Colorable Military Contractor Defense
• Massachusetts Federal District Court in Tractor Back-Over Case Grants Summary Judgment Against Failure-to-Warn Claims Because Plaintiff Did Not Read Warnings, Grants Summary Judgment Against Punitive Damages Claims, Finds Genuine Issues of Fact Regarding Design Defect Claim
• First Circuit Enforces Contractual Provision Relieving Manufacturer in Commercial Case of Liability for Negligent Design, Manufacture and Advertising of Goods
• Massachusetts Federal District Court Holds Medical Journal’s Interest in Confidentiality of Peer Review Process Outweighs Defendant’s Need for Discovery of Communications Between Journal Editors and Authors

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.