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. 

Included in this Issue:

  • Massachusetts Appeals Court Holds Birth Control Patch Manufacturer Had Duty to Warn Patient Directly But Packet Insert Adequately Warned of Greater Risk of Blood Clots As Compared to Birth Control Pill; Design Defect Claim Failed Because Pill Was Not Safer Alternative Design Due to Fundamentally Different Drug Delivery Method
  • Massachusetts Federal Court Holds Mechanical Engineer's Design Defect and Causation Opinions Regarding Riding Mower Admissible Despite Failure to Use Accident Reconstruction and "Time-to-Blade-Access" Techniques, Biomechanical Engineer's Defect and Causation Opinions Also Admissible Because Human Factors Experience and Biomechanical Task Analysis Were  Adequate Substitutes For Accident Reconstruction Training and Techniques
  • Massachusetts Federal Court Grants Summary Judgment Against Punitive Damages On Plaintiff's Tort Claims Because No Statute Permitted Such Damages, But Allows Multiple Damages Claims Under Unfair and Deceptive Practices Statute
  • Massachusetts Appeals Court Holds Jury Instruction on Substantial Contributing Factor Causation Appropriate in Cases Involving Multiple Tortfeasors or Other Potential Causes

Excerpt:

Massachusetts Appeals Court Holds Birth Control Patch Manufacturer Had Duty to Warn Patient Directly But Packet Insert Adequately Warned of Greater Risk of Blood Clots As Compared to Birth Control Pill; Design Defect Claim Failed Because Pill Was Not Safer Alternative Design Due to Fundamentally Different Drug Delivery Method

In Niedner v. Ortho-McNeil Pharmaceutical, Inc., 90 Mass. App. Ct. 306 (2016), plaintiff sued a birth control patch manufacturer in Massachusetts Superior Court for wrongful death and pre-death pain and suffering after her daughter suffered a massive pulmonary embolus and died three months after being prescribed defendant's patch.  Plaintiff asserted claims for breach of express warranty, 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 theories of defective design, manufacturing defect and failure to warn of the greater risk of blood clots with a patch as compared to an oral contraceptive. The court granted defendant's motion for summary judgment on all claims, finding, among other things, that defendant's patient package insert warnings were adequate as a matter of law.

Download the January 2017 Foley Hoag Product Liability Update (pdf).

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