Product Liability Update - July 2013

Included in this Issue:

..United States Supreme Court Reverses First Circuit and Holds Federal Food Drug & Cosmetic Act Preempts Design Defect Claims against Generic Pharmaceutical Manufacturers

..United States Supreme Court Holds Agreement Mandating Individualized Rather than Classwide Arbitration Enforceable Even Where Expense of Arbitrating Exceeds Any Potential Individual Recovery

..Massachusetts Supreme Judicial Court Holds Agreement for Individualized Arbitration Unenforceable Where It Confers on Retailer “De Facto” Immunity from Unfair and Deceptive Practices Liability

..Massachusetts Supreme Judicial Court Holds (i) Proof of Safer Alternative Design that Would Not Unduly Interfere with Product’s Cost or Performance Is Prerequisite to Design Defect Liability, (ii) Product May Be Unreasonably Dangerous Even if Dangers Do Not Exceed Ordinary Consumer’s Expectations and (iii) Plaintiff Need Not Prove Decedent Would Have Used Alternatively Designed Product to Prove Causation

..Massachusetts Federal Court Holds Medical Monitoring Claim Based on Exposure to Dangerous Substance Requires Proof of Subcellular Change, and Expert Testimony that Exposure Merely Increased Risk of Such Change or of Actual Disease Is Insufficient

..Massachusetts Appeals Court Affirms Dismissal of Design Defect and Failure-to-Warn Claims Involving Industrial Fan Because Dangers Were Open and Obvious and Plaintiff Did Not Offer Expert to Testify Proposed Safer Alternative Design Would Not Unduly Interfere with Product’s Cost or Performance

..Massachusetts Federal Court Grants Summary Judgment for Power Tool Manufacturer on Design Defect Claim Because Plaintiff Offered No Expert Evidence Regarding Existence of a Defect, Safer Alternative Design or Causation

Excerpt:

United States Supreme Court Reverses First Circuit and Holds Federal Food Drug & Cosmetic Act Preempts Design Defect Claims against Generic Pharmaceutical Manufacturers -

In Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (June 24, 2013), plaintiff suffered a severe dermatologic reaction after taking sulindac, a generic version of the non-steroidal anti-inflammatory drug Clinoril®. Plaintiff sued the drug’s manufacturer in New Hampshire state court alleging, among other things, that the drug was defectively designed. After defendant removed the case to the United States District Court for the District of New Hampshire, the jury returned a $21 million verdict for plaintiff.