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 Federal Court Dismisses Putative Class Action Because Defendant's Unconditional Checks For Named Plaintiff's Maximum Damages, Even Though Uncashed, Mooted Suit
  • First Circuit Holds Consumer Protection Claims Based On Dietary Supplement Label Asserting Vitamin E "Supports Heart Health" Not Preempted by Food, Drug and Cosmetics Act Because Conflicting Studies Cited In Complaint Plausibly Demonstrated Unqualified Label Could Be Misleading
  • Massachusetts Appeals Court Vacates Jury Verdict For Pelvic Mesh Manufacturer, Holding Trial Court Improperly Excluded Supplier's Material Safety Data Sheet Caution Against Permanently Implanting Polypropylene Material And FDA Letters Requesting Post-Marketing Surveillance To Address Safety Concerns
  • First Circuit Remands Putative Class Action to State Court Because Defendants' Showing Of Reasonable Probability Amount in Controversy Exceeded $5 Million, As Required For Jurisdiction Under Class Action Fairness Act, Was Based On Speculation About Putative Class Members' Expenses
  • Massachusetts Federal Court Denies Dismissal of Claims Under Limitations Statute Because Unclear When Plaintiff Had Sufficient Notice of Injury And Its Possible Cause, And Prior Class Action Allowed Tolling; Dismisses Post-Sale Failure-to-Warn Claim Because No Facts Pled To Show Defendants Could Have Identified And Effectively Warned Plaintiffs
  • Massachusetts Federal Court Refuses to Exclude Engineer's Testimony Salt Spreader Was Defectively Designed Due To Unguarded Hopper Because Expert Had Safeguarding Expertise And Examined Spreader And Documents Produced, And Was Not Required to Assess Design in Context of Overall Spreader Industry
  • Massachusetts Federal Court Holds Foreign Defendant Subject to Personal Jurisdiction Because It Installed, Maintained and Provided Training in Massachusetts for 3D Printer That Caused Plaintiff's Injury  

Excerpt:

Massachusetts Federal Court Dismisses Putative Class Action Because Defendant's Unconditional Checks for Named Plaintiff's Maximum Damages, Even Though Uncashed, Mooted Suit

In Demmler v. ACH Food Companies, Civil No. 15-13556-LTS (D. Mass June 9, 2016), plaintiff sued a food product manufacturer individually and on behalf of a putative class of Massachusetts purchasers, alleging defendant's labeling of certain sauces as "all natural" in spite of their containing caramel color violated Mass. Gen. L.  ch. 93A, the state's unfair and deceptive practices statute.  Defendant moved to dismiss, arguing the case was moot because on two occasions before suit defendant had mailed plaintiff a check (notwithstanding that he had returned it uncashed each time) for his maximum potential damages.

Download the October 2016 Foley Hoag Product Liability Update (pdf).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.