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01.27.2014 | Legal Update

Massachusetts state and federal courts issued a number of interesting product liability decisions in 2013. The Product Liability and Toxic Tort Litigation Group at Nutter McClennen & Fish LLP recently reviewed these cases. Highlighted below are some of the key cases and issues decided over the past year.

• Aleo v. SLB Toys USA, Inc., 466 Mass. 398 (2013): The Supreme Judicial Court ("SJC") upheld an $18 million punitive damages award in a case where a woman died after sliding head first down an inflatable pool slide imported and sold by Toys "R" Us. The SJC found that the evidence supported a finding of gross negligence, and that the $18 million punitive damages award, which constituted a 7:1 ratio of punitive to compensatory damages, was within the guidelines established by law. (Lenk, J.)
• Evans v. Lorillard Tobacco Co., 465 Mass. 411 (2013): The SJC refused to adopt the reasonable consumer expectations standard for design defect from comment i to § 402A of the Restatement (Second) of Torts, instead adopting the risk-utility test of the Restatement (Third). The Court upheld the award of compensatory damages, as remitted, but vacated the award of punitive damages remanding it for a new trial. The Court also vacated the trial court's c. 93A findings and conclusions and directed it to reconsider these rulings in light of the SJC's opinion. (Gants, J.)
• Chasse v. Stryker Corp, et al., No. 12-11694 (D. Mass. March 20, 2013): A complaint alleging violations of Current Good Manufacturing Practice requirements for a medical device established by federal regulations sufficiently pleads a parallel claim in order to avoid preemption under Riegel if violation of the requirements is alleged to have caused plaintiff’s injury. (Saris, J.)
• Genereux v. Hardric Laboratories, Inc., Nos. 04-12137, 10-11652, 2013 WL 3157520 (D. Mass. June 23, 2013): Evidence that a plaintiff has been exposed to above-ordinary levels of a hazardous substance, without more, is insufficient to maintain a cause of action for medical monitoring. Rather, under Massachusetts law, a plaintiff must provide proof of “subcellular” physiological change in order to maintain a cause of action for medical monitoring. (Wolf, J.)
• Connell v. BRK Brands, Inc., No. 10-12101, 2013 WL 3989649 (D. Mass. Aug. 1, 2013): Where a plaintiff seeks to assert non-mutual collateral estoppel to apply an out-of-state judgment to a claim brought under Massachusetts law, the plaintiff fails to establish the identity of the issues if he does not establish that the applicable law of the two states are identical. (Hillman, J.)
• Milward v. Acuity Specialty Prods. Group, No. 07-11944, 2013 WL 4812425 (D. Mass. Sept. 6, 2013): Expert testimony regarding causation is inadmissible where expert employs a “differential diagnosis” analysis to determine cause of disease where the overwhelming majority of cases are idiopathic in origin. (Woodlock, J.)
• Calisi v. Abbott Laboratories, No. 11-10671 (D. Mass. Sept. 27, 2013): (1) Drug manufacturer did not voluntarily assume a duty to warn patient directly of risks associated with drug simply through TV advertisements, a website, and an educational video viewed by patient where patient admitted that she never paid attention to the warnings on the TV ads, there was no evidence that patient visited the website, and the educational video contained a 12-sentence message regarding the drug’s risks and encouraging patients to discuss the risks with their own physicians. (2) Expert testimony is insufficient to support the contention that drug label failed to sufficiently warn physicians of the risks associated with the drug where expert has no reasonable basis for his opinion. (Casper, J.)

For a more comprehensive analysis of the decisions discussed above, please click here.

Nutter’s Products Liability: 2013 Year in Review is a publication of the Product Liability and Toxic Tort Litigation Group of Nutter McClennen & Fish LLP in Boston. The bulletin was prepared by Shagha Tousi. For further information or if we can be of assistance, please contact your Nutter products liability lawyer or the chairperson of the Product Liability and Toxic Tort Litigation Group:
David L. Ferrera
Chair, Product Liability and Toxic Tort Litigation Group
617.439.2247 
dferrera@nutter.com

Nutter McClennen & Fish was founded over a century ago by Louis D. Brandeis and Samuel Warren. Today the firm has approximately 145 attorneys. For decades, one of the backbones of Nutter’s civil litigation practice has been product liability defense. Our attorneys have years of real-world experience defending companies through trial and appeal in all types of product liability litigation, with a particular emphasis in the areas of drug and medical device claims and toxic torts. Our firm commitment to building a culture and atmosphere of excellence has led to Nutter earning a “Tier 1” ranking in Boston in the U.S. News & World Report “Best Law Firms” edition for Product Liability Defense.
This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.