United States: Product Liability Update – July 2018

Last Updated: August 13 2018
Article by David R. Geiger, Chris Cifrino and Shrutih V. Tewarie

Foley Hoag LLP publishes this quarterly Update primarily concerning developments in product liability and related law from federal and state courts applicable to Massachusetts, but also featuring selected developments for New York and New Jersey

MASSACHUSETTS

Massachusetts Federal Court Holds No Personal Jurisdiction Over Foreign Manufacturer Which, Although It Used A Nationwide United States Distributor, Did Not Specifically Target Massachusetts For Sales

In Preferred Mut. Ins. Co. v. Stadler Form Aktiengesellschaft, 2018 U.S. Dist. LEXIS 55475 (Mar. 30, 2018), a homeowners' insurer as subrogee sued the retailer, U.S. distributor and Swiss manufacturer of an air purifier that allegedly caused a fire in the insured's Massachusetts home in the United States District Court for the District of Massachusetts, alleging negligence and breach of warranty. The Mainebased retailer and Ohio-based distributor in turn filed cross-claims against the manufacturer, which moved to dismiss all claims, arguing the court lacked personal jurisdiction.

The court first noted that the requirements for jurisdiction under the Massachusetts long-arm statute, Mass. Gen. L. ch. 223A, § 3, were easily satisfied, as defendant "derive[d] substantial revenue from goods used or consumed" in Massachusetts. In applying the due process constraints on the exercise of personal jurisdiction, the court then held that general jurisdiction was "plainly inapplicable," as the manufacturer was not incorporated in Massachusetts and did not have its principal place of business there.

Turning next to the possible exercise of specific jurisdiction, the court found the Swiss manufacturer had not "purposefully availed" itself of "the privilege of conducting activities" in Massachusetts, as required by the Supreme Court's decision in J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) (see July 2011 Foley Hoag Product Liability Update). The court stressed that under Nicastro the defendant's contacts with the state must be "voluntary," and personal jurisdiction was permitted only when defendant "targeted the forum."

Here, no such targeting had occurred. While the distributor claimed that during regular Skype calls the manufacturer and distributor discussed sales and buyers, including important online retailers located in Massachusetts, the court found the calls discussed these topics "generally" but included no instructions from the manufacturer to target Massachusetts. Hence, although the manufacturer placed its products into the stream of commerce it did not do so with a specific intention that they would end up in Massachusetts as opposed to the United States generally

Notably, the court added that "wanting to stay out of foreign courts is not illegitimate in itself," and the manufacturer's decision to sell through a U.S. distributor "might well be specifically intended to try to limit the likelihood the company would have to answer suits anywhere in the world." Due process requires that defendants be afforded a degree of predictability, and allows them to structure their conduct so as to not be subject to suit anywhere in the world. The court stressed that this did not mean that plaintiffs have no remedy—they simply must sue the manufacturer in Switzerland, or another forum where the manufacturer is amenable to suit.

Plaintiff contended that all crashes in the report were sufficiently similar, since they involved crashes into stores.

The appellate court agreed with plaintiff, holding that absolute identity was not required and that there was sufficient similarity among a sufficient number of the prior accidents for the report to be admitted. The similarity of any individual accident, the court noted held, went only to weight, not admissibility, and in accordance with that principle the trial judge had properly instructed the jury to consider a past accident only to the extent the jury as factfinder found it substantially similar.

Massachusetts Appeals Court Holds Company's Report Of Hundreds Of Prior Car Crashes Into Stores At Other Company Locations Sufficiently Similar To Be Admissible In Suit Arising From Crash Into Specific Store

In Dubuque v. Cumberland Farms Inc., 93 Mass. App. Ct. 332 (2018), a woman inside a convenience store was struck and killed by an out-of-control car that entered the store at high speed. Her estate sued in the Massachusetts Superior Court for negligence and gross negligence, alleging the store could have prevented the accident by installing protective barriers. A jury found for plaintiff, and defendant appealed, arguing it deserved a new trial because the trial judge improperly allowed plaintiff to introduce an internal corporate report detailing hundreds of car crashes into stores at other company locations.

On appeal, the Massachusetts Appeals Court first noted that admission of evidence of prior accidents is generally disfavored, but if there is substantial similarity between the past and present occurrences it may be admitted to show defendant was on notice of the risk of an accident. Defendant proposed a detailed scheme for analyzing whether past crashes were substantially similar, considering factors such as the density of the store's location, vehicle speed and whether the driver had become incapacitated, and argued none of the prior crashes was admissible.

Massachusetts Federal Court Holds Friction Testing Expert's Testimony Admissible As Tests He Performed Were Reliable, And Fact That Other Tests Were Not Performed Was Merely Ground For Cross-Examination

In Botelho v. Nordic Fisheries, Inc., No. 15-11916-FDS, 2018 U.S. Dist. LEXIS 83743 (D. Mass. May 23, 2017), a seaman slipped and injured his head working on a fishing vessel, and brought claims in the United States District Court for the District of Massachusetts for, among others, negligence and unseaworthiness. The primary factual dispute was whether plaintiff had slipped on the ship's deck alone or on a fish lying on the deck. Plaintiff disclosed an expert who tested the friction of the ship's deck and plaintiff's boot, but performed no tests using a fish, and opined that if the deck had had a non-skid surface plaintiff would not have slipped, either on the deck or a fish. Defendant moved to exclude this testimony as unreliable and hence inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) which requires the proponent of expert testimony to show it is reliable in order to be admitted.

Defendant first argued the expert's opinion was inadmissible because he had never tested the boot/fish and fish/deck interfaces. The court held, however, that whether or not the expert had performed any particular test was not relevant to the admissibility issue; rather, the correct inquiry was only whether the tests he did perform were methodologically reliable. Here, the expert had tested the ship's deck and plaintiff's boot, and provided pages of analysis based on accepted friction principles. Accordingly, this methodology was reliable enough, and defendant could cross-examine the expert regarding his reasoning for not performing other tests.

Defendant also argued the expert's testing was unreliable because its conditions, such as location on the ship, amount of water present and air temperature, were too dissimilar to those of plaintiff's accident. The court summarily rejected this argument, holding that it went more to weight than admissibility and was again more properly material for cross-examination.

Massachusetts Federal Court Holds Maine Law Applies to Wrongful Death Claim Involving Asbestos Exposure And Injury In Maine From Products Designed In And Shipped From Massachusetts, But Leaves Door Open To Applying Massachusetts Law To Contribution Claims

In Burleigh v. Alfa Laval, Inc., 2018 U.S. Dist. LEXIS 77891 (D. Mass. May 9, 2018), a shipyard mechanic's widow sued a steam turbine manufacturer and others in the United States District Court for the District of Massachusetts, alleging her husband died from asbestos exposure sustained during twenty years of work at a Maine shipyard and asserting, among others, negligence, breach of warranty and wrongful death claims. Although the turbine manufacturer designed and supplied the turbines from its Massachusetts principal place of business, it and other defendants moved to apply Maine law both to plaintiff's claims and to contribution claims among the defendants, noting differences between the two states' laws.

The court first addressed conflicts between the wrongful death statutes, applying § 146 of the Restatement (Second) of Conflict of Laws (1971), which provides that in personal injury actions the state of the injury controls "unless with respect to the particular issue, some other state has a more significant relationship." Determining whether another state has a more significant relationship requires analysis under both Restatement § 6, setting forth factors applicable to all actions such as the policies of the respective states and the parties' expectations, and § 145, listing factors applicable to tort actions such as the places of injury and tortious conduct, and the parties' home states.

Under § 145, the court noted that when the injury occurs in one state but the allegedly causal conduct in another, the place of injury generally controls, especially when the injured individual is closely connected with that state. Accordingly, the facts that decedent resided in Maine and was injured there outweighed the facts that the turbine manufacturer's allegedly tortious conduct and principal place of business were in Massachusetts. In addition, the parties' relationship was centered in Maine¬ as decedent interacted with the manufacturer's products there

Turning to § 6, while Massachusetts' wrongful death statute does not cap compensatory or punitive damages, aiming both to compensate plaintiffs and hold tortfeasors fully responsible, Maine's statute aims to prevent unreasonable recovery by capping both. Here, Massachusetts' interest in compensating plaintiff was lessened as neither she nor decedent was a resident, but the state still had an interest in punishing the manufacturer as its conduct occurred in-state. In addition, uniformity of result slightly favored Massachusetts because the manufacturer presumably made sales to a variety of states, but the parties' expectations favored Maine because, among other things, the injury occurred there. On balance, as the court could not find that Massachusetts had a more significant relationship to the liability issues than Maine, its law as that of the place of the injury applied.

Regarding contribution, the court tentatively ruled that Maine law would apply, based on that state's connection to the plaintiff and injury. However, the court noted that the issue was not fully argued nor was the record fully developed, and future facts linking the alleged joint tortfeasors to Massachusetts could ultimately compel the court to apply Massachusetts law to the contribution issues.

NEW YORK/NEW JERSEY SUPPLEMENT

New York Federal Court Holds Residents Foreseeably Affected By Chemical Sold To Manufacturing Facility May Sue Chemical Supplier For Failure To Warn Manufacturer Of Risks Even Though Residents Did Not Purchase Or Use Product, Allegation Of Water And Air Contamination By Chemical Sufficiently Supported Claim For Loss Of Property Value

In Wickenden v. Saint-Gobain Performance Plastics Corp., No. 1:17-CV-1056, 2018 U.S. Dist. LEXIS 103591 (N.D.N.Y June 21, 2018), husband and wife residents of a village sued local manufacturers of stain- and water-resistant fabrics and Teflon®, as well as their perfluorooctanoic acid ("PFOA") suppliers, in the United States District Court for the Northern District of New York for personal injuries and property damage allegedly resulting from contamination of the municipal water and air by the manufacturers' PFOA discharges. Both plaintiffs claimed PFOA blood levels approximately thirty to fifty times the United States average, and the husband alleged he had developed kidney cancer as a result. Plaintiffs asserted the PFOA suppliers were liable for failure adequately to warn of the compound's risks under both negligence and strict liability theories.

The suppliers moved to dismiss, arguing they owed no duty to plaintiffs as they were neither users nor purchasers of the products, and extending a duty to mere bystanders would result in unlimited liability to an indeterminate class of potentially affected persons. While the court agreed the sellers' duty extended only to the manufacturers as the products' purchasers and users, that duty included informing the manufacturers about the risks PFOA posed to foreseeable bystanders as well as the techniques that could be employed to reduce those risks. Because plaintiffs lived in the vicinity of the facility the manufacturers had successively operated, they were foreseeable bystanders and thus could sue the suppliers for their breach of duty to the manufacturers. The court also noted that imposing a duty on the suppliers was supported by the facts that they were in a superior position of knowledge as compared to bystanders, and the economic impact of a duty would not be overly burdensome.

The sellers also moved to dismiss plaintiffs' strict liability claim on the ground that they had failed to allege they were only exposed to PFOA from the sellers. The court rejected this argument, holding it was not necessary that plaintiffs identify the sellers as the only proximate cause of their injuries but merely that it was reasonably probable defendants were the source of PFOA that was a substantial factor in causing their harm. As plaintiffs had alleged the sellers produced the majority of the PFOA used and eventually discharged by the manufacturers, these allegations sufficed.

Finally, one of the sellers moved to dismiss plaintiffs' property damage claim, arguing they failed adequately to allege their property had been directly affected by the seller's conduct. The court disagreed, holding the allegation that defendant's failure to warn caused the contamination of the municipal water supply and a consequent reduction in plaintiffs' property value was sufficient.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
Foley Hoag LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions