Foley Hoag LLP

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.

SUMMARY

Foley Hoag’s Food and Drug Practice provides regulatory and legislative advice to leading biotechnology, pharmaceutical, medical device, and health care companies regulated by the Food and Drug Administration (FDA). Lawyers at Foley Hoag understand the critical regulations and policies affecting product development schedules, regulatory compliance, and timely product approvals. In representing clients, our lawyers work with senior agency managers, congressional staff, and Members of Congress to shape agency interpretations, clarify regulatory guidance, challenge adverse decisions, develop effective compliance plans, and enact legislation into law.

SUMMARY

Established in December 1980 by the partners of law firm Foley Hoag, The Foley Hoag Foundation is a private foundation that seeks to combat racism, especially among youth, in the City of Boston. The Foundation awards grants to organizations working to improve the racial climate in Boston by addressing issues of diversity and racism. Grantee organizations achieve their goals through a variety of means, including arts and cultural activities, youth leadership and recreational programs. Other grantees provide advocacy assistance, enabling individuals to confront racism through legal or political action. Some grantee organizations work to prepare young children to live in the reality of a multicultural society, others engage teens, and a few target a primarily adult constituency.

The Foley Hoag Foundation was the first—and remains the only— foundation to focus exclusively on the improvement of race relations in Boston. The trustees are fortunate to have the unqualified endorsement of Foley Hoag, which has provided an enormous amount of financial, administrative and moral support.

SUMMARY

Included In This Update:

• United States Supreme Court Holds Food, Drug and Cosmetic Act Preempts State Law Claims Against Medical Device that Received Premarket Approval from Food and Drug Administration
• Massachusetts Appeals Court Decertifies Class of Mouthwash Purchasers Due to Differences Among Purchasers’ Exposure to, and Reliance on, Allegedly Deceptive Advertisements
• Massachusetts Superior Court Refuses to Certify Class of Buyers/Lessees of Vehicles that Included Twenty-Three Distinct Jacks, Finding Lack of Common Factual Issues, Predominance of Common Over Individual Issues and Superiority of Class Action Method of Adjudication Over Individual Claims
• Massachusetts Appeals Court Holds Alleged Failure to Warn Was Not Proximate Cause of Injury Because Plaintiff Did Not Read and Heed the Warnings that Were Provided
• Massachusetts Appeals Court Holds Failure to Move for Dismissal Within Reasonable Time Waives Pleaded Defense of Insufficient Service of Process

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

SUMMARY

While marking products to indicate that they are patented is necessary to maximize your patent rights, a recent case highlights the importance of marking the products accurately.

SUMMARY

Included In This Update:

• Massachusetts Federal District Court Holds Employer Was Sophisticated User and Dismisses Former Employee’s Claims Against Manufacturers and Suppliers of Beryllium-Containing Products
• Massachusetts Federal District Court Dismisses Claims Against Pharmaceutical Skin Cream Manufacturer for Lack of Expert Testimony of Design Defect, Failure to Warn or Proximate Cause
• Massachusetts Federal District Court Holds Plaintiff Not Responsible for Loss of Allegedly Negligently-Manufactured Sandal, Denies Summary Judgment Based on Inference of Negligence Under Res Ipsa Loquitor Doctrine
• Massachusetts Superior Court Dismisses Claims Against Bicycling Equipment Manufacturer and Supplier for Lack of Expert Testimony of Design Defect, Failure to Warn and Proximate Cause
• Massachusetts Superior Court Holds Presence of Defendant’s Trademark on Product Creates Triable Issue Whether Defendant Manufactured Product But Does Not Determine Issue as a Matter of Law

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

SUMMARY

Organizations succeeding in today’s global life sciences marketplacework hard to develop and introduce new products andtechnologies. Competitive, regulatory and litigation challengescan arise at any point and Foley Hoag lawyers are ready to guidecompanies in overcoming these obstacles. From initial conceptionto commercial viability, from market success to expansion, weprovide our clients with strategic and practical legal advice.

We are former scientists, engineers, researchers, physicians, andpolitical advisors. We bring a diversity and depth of knowledgeto clients ranging from manufacturers of medical devices andbiotech or pharmaceutical products to leading research institutionsand major industry advocacy organizations. We can help youfocus on your priorities including:

• Protection and Enforcement of Intellectual Property
• Corporate Finance and Partnering Arrangements
• Regulatory and Government Strategies
• Product Liability Defense

SUMMARY

Tuesday, Oct 23, 2007 --- “Notice pleading” allows plaintiffs to file broad andvague boilerplate complaints, and judges then permit limitless discovery, says Foley Hoag’s David Geiger in our series of chats with high-profileproduct liability lawyers.

SUMMARY

Included In This Update:

• Massachusetts Superior Court Holds Claims Against Generic Drug Manufacturer Not Preempted by Federal Law Because Manufacturer Could Have Applied to FDA to Change Drug’s Labeling
• Massachusetts Superior Court Holds Pharmacy Violates Unfair Trade Practices Act by Mailing Informational Letter to Pharmacy Customers Without Disclosing Small Profit, Dismisses Claims for Breach of Privacy and Patient Confidentiality
• Massachusetts Federal District Court Holds Manufacturer of U.S. Navy Aircraft Not Entitled to Federal Forum for Acting Under Federal Officer Where Manufacturer Did Not Show Navy Controlled Content of Warnings or Manufacturer was Performing Governmental Function
• Massachusetts Appeals Court Holds Value of Defendant’s Contribution Claim Against Third Party, Assigned to Plaintiff in Addition to Monetary Payment as Part of Settlement, Is Not Part of Joint Tortfeasors’ Common Liability, Hence Monetary Payment Discharges Such Liability and Permits Contribution Claim
• Massachusetts Federal District Court Dismisses Failure-to-Warn Claim Against Chemical Manufacturers and Suppliers Because Decedent’s Employer Was “Sophisticated User,” Holds Defendants’ Mere Membership in Trade Group Does Not Create Liability for Group’s Alleged Misrepresentations

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

SUMMARY

Included In This Update:

• Massachusetts Superior Court Holds Claims Against Spinal Disc Implant Manufacturer Not Preempted by Federal Food, Drug, and Cosmetic Act Because Claims Would Not Impose Different Requirements than the Act or Were Based on Defendant’s Own Promises
• Massachusetts Federal District Court Finds Indemnification Unavailable Between Two Actively Negligent Parties
• Massachusetts Appeals Court Affirms Dismissal of Defective Design Claim on Basis of Inadequate Expert Testimony
• Massachusetts Federal District Court Holds Demand Letter Delivered in State Court Proceeding to Satisfy Unfair and Deceptive Practices Act Requirement in Subsequent Related Federal Proceeding

We have migraded our Product Liability Update to an electronic format. If you have not yet registered to receive this update via email, please do so at foleyhoag.com/pl_signup.asp. We look forward to continuing to provide you with this information in the future. 

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

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in the Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation.

SUMMARY

Included In This Update:

• United States Supreme Court Holds Punitive Damages Award That Punishes for Harm to Nonparties Violates Due Process
• Massachusetts Supreme Judicial Court Holds Communications between Hospital and Credentialing Organizations Fall within Medical Peer Review Privilege and Narrowly Interprets Bad Faith Exception to Same
• Massachusetts Federal District Court Grants Summary Judgment for Manufacturer on Successor Liability, Finding No Express or Implied Assumption of Liability, "de Facto Merger" or "Mere Continuation"
• Massachusetts Superior Court Finds Various Claims Against Cigarette Manufacturer Not Preempted by Federal Cigarette Labeling Act

We have migraded our Product Liability Update to an electronic format. If you have not yet registered to receive this update via email, please do so at foleyhoag.com/pl_signup.asp. We look forward to continuing to provide you with this information in the future.

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

SUMMARY

Topics covered in this update include:

• First Circuit Affirms Exclusion of Plaintiff's Expert's Ladder Defect Testimony for Lack of Objective Basis and Warnings Expert for Being Offered After Deadline and Shortly Before Trial
• First Circuit Affirms Exclusion of Expert Testimony of Alleged Violation of OSHA Construction Safety Regula­tions, Holding Regulations Legally Inapplicable
• Federal District Court Grants Sum­mary Judgment to Auto Manufacturer, Excluding Plaintiff's Expert Disclo­sures for Repeated Lateness, Design Defect Opinion for Lack of Reliability or Feasible Alternative Design and Failure-to-Warn Claim as Preempted
• Federal District Court Denies Summary Judgment to Defendants Concerning Protective Sheath on Printing Press Blade; While Danger of Blade Was Obvious, Danger of Inadequate Sheath Was Not, and Intermediate Seller Participated in Decision to Use Sheath
• Massachusetts Appeals Court Affirms Exclusion of Expert's Sudden Accelera­tion Testimony as Scientifically Unreli­able In Automobile Product Liability Case
• Massachusetts District Court Appellate Division Affirms Defense Verdict in Gumball Case, Ruling Res Ipsa Loquitur Improper To Infer Negligence Where Gumball Defect and Causative Role Were Unclear

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

SUMMARY

Covered in this issue:

• Massachusetts Supreme Judicial Court Adopts "Sophisticated User" Defense in Failure-to-Warn Cases
• Federal District Court Upholds Jurisdiction Under Class Action Fairness Act Based on Amendments to Complaint after Effective Date of Act
• Federal District Court Excludes Expert Testimony About Saw Design Where Theory Was Not Tested and No Evidence Supported Expert's Assumption As To How Accident Occurred
• Massachusetts Superior Court Holds Claims Alleging Car Window Material Unsafe Preempted by Federal Motor Vehicle Safety Standard
• Massachusetts Superior Court Excludes as Unreliable Expert Testimony Purportedly Linking Mold Exposure to Autism

SUMMARY

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

In This Issue:

• Massachusetts Supreme Judicial Court Holds Cig arette Manufacturers Cannot Assert Decedent Caused Own Injuries Even Though He Knew the Dangers and Acted Unreasonably in Smoking--Defense Limited to When Smoker’s Conduct Was “Overwhelmingly Unreasonable”
• Massachusetts Supreme Judicial Court Reverses New Trial and Sanctions in Medical Malpractice Action, Finding Insufficient Evidence of Fraud on the Court by Defense Expert
• Massachusetts Superior Court Finds Unfair and Deceptive Trade Practices Claims Involving “Light” Cigarettes Neither Barred by Exemption for Conduct Permitted by Federal Law Nor Preempted by Such Law
• Massachusetts Superior Court Finds Federal Board Safety Act of 1971 Preempts State Law Claims for Failure to Warn in Boat Accident Case
• Massachusetts Superior Court Denies Class Certification Under Unfair and Deceptive Practices Statute Where Named Plaintiffs Could Not Prove Any Damage Caused by Defendants

SUMMARY

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

In This Issue: 

• Massachusetts Supreme Judicial Court Holds Expert Testimony Applying Scientific Facts to Medical Standard of Care Subject to Daubert-Lanigan Reliability Screening 
• First Circuit Holds Owner of Press That Injured Employee Not Liable Under “Dual Persona” Theory as Successor to Previous Owner Because Predecessor Owed No Duty in Tort 
• First Circuit Reverses Summary Judgment Based on Plaintiff’s Failure to Meet Expert Disclosure Deadline and Remands for Consideration of Harm Caused by Delay 
• “Economic Loss” Doctrine Precludes Tort Claims Involving Allegedly Defective Component Product Where Only Property Damage was to Parts of Structure in Which Component Was Incorporated 
• Exhibits Submitted in Support of Summary Judgment Struck for Failure to Authenticate with Affidavit

SUMMARY

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

In This Issue:

• Massachusetts Supreme Judicial Court Holds Plaintiffs in Consumer Protection Class Action Must Prove Causal Connection Between Deceptive Act and Injury to Plaintiffs
• Massachusetts Supreme Judicial Court Holds Medical Malpractice Statute of Repose Not Tolled by Equitable Estoppel, Fraudulent Concealment or Ongoing Treatment
• First Circuit Affirms Dismissal of Product Liability Suit as Sanction for Plaintiff’s Failure to Comply with Discovery Obligations
• First Circuit Holds Class Action Fairness Act of 2005 Applies Only to Cases Filed in State Court, Not Removed to Federal Court, on or after February 18, 2005
• First Circuit Sua Sponte Dismisses Massachusetts Defendant That Would Have Destroyed Federal Court Diversity Jurisdiction and Reaffirms That Landowner Has No Duty to Warn of Obvious Danger
• Massachusetts Appeals Court Holds Bulk Supplier’s Knowledge of Intermediary’s Training Policies Relevant to Application of “Bulk Supplier” Doctrine Permitting Reliance on Intermediary to Warn End User
• Massachusetts Appeals Court Upholds Automobile Negligence Verdict Holding Live Expert Testimony Not Required to Prove Causation of Injuries
• Massachusetts Superior Court Denies Summary Judgment on Statute of Limitations Issues Based on Material Disputes of Fact as to When Plaintiff Had Notice of Cause of Injuries
• Massachusetts Supreme Judicial Court Holds Plaintiffs in Consumer Protection Class Action Must Prove Causal Connection Between Deceptive Act and Injury to Plaintiffs

SUMMARY

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

In This Issue:

• United States Supreme Court Holds Failure-to-Warn and Fraud Claims Relating to Pesticide Labeling Pre-Empted by Federal Insecticide, Fungicide, and Rodenticide Act But Other Claims Not Pre-Empted
• United States Court of Appeals for First Circuit Affirms Summary Judgment in Water Heater Case Based on Plaintiff’s Delay in Providing Notice of Warranty Claim and Lack of Voluntarily Assumed Duty Underlying Negligence Claim
• United States Court of Appeals for First Circuit Affirms Summary Judgment in Cigarette Suit Based on Expert Evidence of “Common Knowledge” of Smoking Risks in 1960 and Lack of Evidence That Defendant’s Conduct Caused Decedent’s Smoking
• Massachusetts Appeals Court Holds Complete Exclusion of Evidence and Dismissal for Claimant’s Negligent Spoliation of Allegedly Defective Chair Erroneous Where Evidence Concerning Alleged Design Defect Still Available From Other Chairs
• Massachusetts Federal District Court Denies Summary Judgment Holding General Engineer Sufficiently Qualified on In-Line Skate Design and Genuine Issue Existed Whether Plaintiff Used Product Unreasonably Knowing of Defect 
• Massachusetts Superior Court Grants Summary Judgment Against Punitive Damages in Wrongful Death Suit Alleging Defendant Gave Defective Personnel Lift To Decedent’s Employer, Finding No Evidence of Gross Negligence or Willful, Malicious or Reckless Conduct