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 Sale Terms Mandating Individualized Arbitration of Claims Violate Public Policy of Unfair and Deceptive Practices Statute Favoring Classwide Resolution of Small-Value Consumer Claims
  • Massachusetts Federal District Court Holds Requirement that Electronic Documents be Produced as Kept in Usual Course of Business Requires Production of Files in "Native" Format But Does Not Require Producing Party to Scan Electronic Documents for Optical Character Recognition, Refuses to Require Blanket Production of Electronic Documents' Metadata
  • Massachusetts Federal District Court Holds Plaintiffs' Pharmaceutical Causation Experts' Opinions Admissible Because Based on Extrapolation of Collective Epidemiological Study to Drug at Issue, Evidence of Biological Plausibility and Adverse Event Reports
  • Massachusetts Federal District Court Denies Certification of Putative Class of Consumers and Third-Party Payors Alleging Fraudulent Marketing of Drug Because Causation Could Not Be Demonstrated by Classwide Statistical Evidence and Hence Common Issues Regarding Marketing Would Not Predominate Over Individual Issues of Causation
  • Massachusetts Federal District Court in Actions Alleging Off-Label Promotion of Drug Dismisses Fraud Claims For Failure to Allege Physicians' Reliance on a Particular Misrepresentation, Refuses to Dismiss Fraudulent Concealment Claims as Duplicative of Failure-to-Warn Claims Because of Scienter Requirement of Fraudulent Concealment

Excerpt:

Massachusetts Supreme Judicial Court Holds Sale Terms Mandating Individualized Arbitration of Claims Violate Public Policy of Unfair and Deceptive Practices Statute Favoring Classwide Resolution of Small-Value Consumer Claims

In Feeney v. Dell, Inc., 454 Mass. 192 (2009), plaintiffs filed a putative class action claiming defendant computer manufacturer had violated Mass. Gen. L. ch. 93A, the Massachusetts unfair and deceptive practices statute, by collecting sales tax on plaintiffs' purchase of service contracts when no such tax was actually due. Defendant, which was represented by Foley Hoag LLP, successfully moved to compel arbitration of the named plaintiff's individual claims pursuant to a provision of the terms and conditions of sale mandating arbitration on an individual basis of any claim against defendant arising from the sale. After the arbitrator ruled for defendant on the merits, the trial court denied plaintiffs' motion to vacate the arbitration award and to reconsider the initial order granting defendant's motion to compel arbitration. Plaintiffs appealed and the Supreme Judicial Court granted their application for direct appellate review. (continues...)

Download the Foley Hoag August 2009 Product Liability Update

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