Product Liability

August 26, 2020

Lawsuits against 3M for hearing loss caused by defective earplugs score major victory

Soldier-200x300 On July 28, 2020, a Florida federal court ruling breached the central defense against claims certain military earplugs were defective, damaging the ear and causing hearing loss. The lawsuits claim the earplugs were improperly designed, and did not completely block loud noises common to the military, such as gunfire and or the operation of heavy machinery or vehicles. Neumann Law Group has previously written about the earplug litigation, and you can read that article here.

The defendant, 3M, attempted to invoke the ‘government contractor defense,” a doctrine that would relieve it of any liability even if it were proven to have produced and sold a defective product to the military. The Supreme Court articulated the government contractor defense in Boyle v. United Technologies Corporation, 487 US 500 (1988), which involved a wrongful death complaint made against a company that produced military helicopters—the plaintiff alleged the escape system in the helicopter was poorly designed, causing the death of a pilot.

The jury in Boyle found that the manufacturer was in fact negligent when it designed the helicopter, but the Supreme Court would eventually uphold an appellate reversal of the verdict. It outlined the strong federal interest in military equipment and concluded those interests outweighed any state law claims, but only when the federal government gave reasonably precise specifications for the equipment, the equipment conformed to the specifications, and the supplier warned the federal government of the danger involved in using the equipment to the best of its knowledge.

July 24, 2019

A Primer on Massachusetts Product Liability Law

by Neumann Law Group

As a general matter, the manufacturers and sellers of goods can be held legally responsible if a product is defective or unreasonably dangerous. While there are three general types of Massachusetts product liability cases, the most common type of claim is a breach of warranty of merchantability.

Photo credit: Shutterstock.com/
Zolnierek

The warranty of merchantability is a warranty that attaches to any good that is sold. This warranty is implied, because it attaches regardless of the language the manufacturer includes on the packaging or any warning given by a salesperson. The warranty of merchantability ensures that a product will perform as expected for the specific purpose for which it was sold.

February 22, 2019

Court Determines Germany Manufacturer May Be Liable in Massachusetts for Workplace Injury Case

by Neumann Law Group

Photo Credit: Alex Kosev / Shutterstock.com

In a recent federal appellate case, a man was badly injured while he was operating a machine at work in Lakeville, Massachusetts. Evidently, the man mistakenly hit the foot pedal on the machine, causing the machine to activate, crushing his left hand. The machine was manufactured by Schechtl Maschinenbau, a German company, and was sold to the man’s employer by MetalForming, Inc., an American company. The man sued Schechtl and MetalForming in Massachusetts. Schechtl argued that it could not be sued in Massachusetts because there was no personal jurisdiction.

The Concept of Personal Jurisdiction

Personal jurisdiction refers to a court’s ability to exercise power over the parties in a case. In order for personal jurisdiction to be established, a defendant must have certain “minimum contacts” with the state. To show sufficient contacts with the state under the applicable law, a plaintiff must show that: 1) the claims directly arise out of or relate to the defendant’s activities in the state; 2) the defendant’s contacts with the state constitute a purposeful availment of the privilege of doing business in the state; and 3) that jurisdiction is reasonable.

Personal Jurisdiction in the Case

In this case, the court decided that there were sufficient contacts to find personal jurisdiction. The court found that the claim was related to Schechtl’s contacts with the state, and that jurisdiction was reasonable. The main issue was whether Schechtl purposely availed itself of the privilege of doing business within the state. In finding that it purposely availed itself, the court considered whether the exercise of jurisdiction was foreseeable to the defendant.

October 5, 2018

Massachusetts Federal Court Hears Failure to Warn Case Involving Medication

by Neumann Law Group

Photo Credit: photopixel / Shutterestock.com

If you’ve ever seen a pharmaceutical commercial on television, you probably know that there will be a portion of the commercial where the announcer will give a long list of potential side effects from the medication. This is because drug companies have a responsibility to warn customers of potential side effects of their medication. This case involves a prescription anti-psychotic drug that was prescribed to the defendant, an inmate in a correctional institution. He is alleging that the medication he was given caused gynecomastia, which is when men start to develop breasts. In order for someone to prevail on a claim against a drug manufacturer, they – with the assistance of their skilled Massachusetts product liability attorney – need to prove some specific things.

Standards to Hold Drug Companies Accountable

June 4, 2018

Massachusetts Supreme Judicial Court Addresses When Cases Against Drug Companies Can Go Forward

by Neumann Law Group

If you have been injured by a faulty medication, you may be able to hold the drug company accountable for your injuries if your case meets certain standards. The Massachusetts Supreme Court recently heard a case regarding drug companies and their responsibilities regarding generic drugs and the required labeling. The court held that cases against drug companies based on medication injuries from generic versions of drugs can only go forward if the original manufacturer knew about possible injuries but intentionally failed to update this label. Cases against pharmaceutical companies are not only complicated, but they can also be expensive due to the resources that pharmaceutical companies have at their disposal. If you are concerned that you have been injured from a medication, along with seeking the necessary medical care to treat your injuries, you should also contact a knowledgeable Massachusetts product liability attorney as soon as possible to help you with your case.

Generic Labeling Requirements

In order to bring a new drug to market, drug manufacturers must go through an onerous approval process with the Food and Drug Administration (FDA). Part of the process includes approval of the warning label for the drug that alerts consumers to potential side effects and other risks of the medication. The process for bringing generic versions of already existing drugs to market is much simpler. The manufacturers of generic drugs just need to prove that their medications are essentially the same as the name-brand drug in terms of active ingredients, strength, and route of administration. In order to get FDA approval, generic medications are legally required to show that the warning label is exactly the same as the name-brand medication. Therefore, a generic version is required to have the same label as the name-brand version.

December 18, 2017

Six-Figure Jury Verdict Against Asbestos Manufacturer Set Aside by Connecticut Supreme Court

by Neumann Law Group

A six-figure jury verdict against the manufacturer of an adhesive product called FM-37 was recently set aside by the Connecticut Supreme Court. The plaintiff sought to recover damages under the Connecticut’s Product Liability Act (CPLA) for the wrongful death of the decedent, claiming negligence and strict liability. The plaintiff contended that the decedent was exposed during his employment to an asbestos-containing product (FM-37) manufactured by the defendant and that the exposure contributed to his contraction of deadly mesothelioma. This type of theory is also relevant to cases brought by Massachusetts wrongful death plaintiffs.Malignant mesothelioma is a rare cancer that usually forms on the protective lining of the lungs and abdomen. The disease has no definitive cure, but advancements in conventional treatments along with emerging therapies are helping patients improve their survival rate. Incidence rates still hover around 3,000 new cases each year in the U.S., according to a 2017 report from the Centers for Disease Control and Prevention. However, scientific research and increased awareness are leading to earlier diagnoses and improved treatments. Exposure to asbestos remains the leading cause of mesothelioma. Asbestos, a mineral fiber, can release toxic chemicals in the air if improperly handled.

Asbestos litigation has been going on for decades, ever since the substance was linked to mesothelioma. Individuals affected by this disease have sued companies that made products containing asbestos. Last month, for example, a Massachusetts developer agreed to pay $100,000 to settle a lawsuit over accusations that workers improperly removed and disposed of asbestos. According to the lawsuit, unlicensed workers were allowed to remove materials containing asbestos without taking proper safety precautions. The lawsuit also alleged the company threw away unsealed asbestos near apartment buildings.

Also last month, the Montana Supreme Court announced that hundreds of asbestos cases could proceed through a special “Asbestos Claims Court.” The claims can include personal injuries or wrongful deaths arising out of an asbestos-related disease alleged to come from vermiculite mining, processing, or the transfer, storage, installation, or removal of a product containing vermiculite. The formation of the court was approved by the Montana legislature in 2001.

October 5, 2016

Federal Judge Dismisses Personal Injury Case Against Massachusetts Gun Maker

by Neumann Law Group

U.S. District Court Judge Todd Campbell recently held that Massachusetts gun maker Smith & Wesson was not liable for the accidental discharge of a pistol that caused a Tennessee man to lose his finger.Judge Campbell dismissed the case on September 16, based on an order from the U.S. District Court for the Middle District of Tennessee in Nashville. The plaintiffs Randy and Vicki McNeal sued Smith & Wesson for $75,000 this winter. The complaint claims McNeal was shot in the finger inside a gun store in Murfreesboro, Tennessee — a small city near Nashville. The plaintiffs alleged that the Bodyguard .380 pistol had a loose screw that inhibited the slide from locking correctly.

Gun enthusiasts claim that the .380 pistol is the weapon of choice for people who want security but don’t fit the profile of the typical gun owner, such as urbanites, women, and first-time buyers who are more concerned with easy-access self defense than high performance. The issue is that firearms experts indicate that .380s are difficult to use. Kevin Michalowski of Concealed Carry magazine said: “Based on size, people will grab a .380. First time buyers see a soft shooter. I think that’s a little bit of a mistake.”

September 20, 2016

Massachusetts Appeals Court Upholds Ruling for Birth Control Manufacturer Following Teen’s Death

by Neumann Law Group

Leslie Nieder filed suit against Ortho-McNeil Pharmaceutical and Johnson & Johnson after her 17-year-old daughter, Adrianna Duffy, collapsed in her dorm room and died of a pulmonary embolism. The case alleged multiple causes of action related to Johnson & Johnson’s birth control patch, Ortho Evra. Following a hearing, the lower court judge upheld Johnson & Johnson’s motion for summary judgment and ordered the dismissal of the complaint. The Massachusetts Court of Appeals recently affirmed the lower court’s dismissal of the complaint.In July 2008, Duffy and her mother met with Duffy’s pediatrician, Sara Nelson, at Massachusetts General Hospital’s Chelsea Clinic to discuss birth control options. Nelson recommended and prescribed an oral birth control. At some point thereafter, Duffy discontinued using birth control pills. In June 2009, Duffy decided she needed a new birth control method. Nieder and she met with Nelson to discuss options. Nelson prescribed the Ortho Evra patch after Duffy inquired about the patch as an easier method of birth control. (Unlike oral birth control pills, which must be taken at the same time each day, the patch is applied to the skin once per week for three weeks.)

March 2, 2016

Massachusetts Smokers Get $4.9 Million from Philip Morris

by Neumann Law Group

In June 2010, the Food and Drug Administration (FDA) banned the use of deceptive terms such as “mild,” “low tar,” and “light” in the marketing and sale of cigarettes. The FDA reasoned tobacco companies had been promoting a decades-long lie that some cigarettes are less harmful to discourage smokers from quitting. This deception, the FDA explained, has had disastrous consequences for public health. The Surgeon General estimates that smoking and tobacco smoke exposure cause 480,000 premature deaths annually in the U.S.

In 1998, roughly 200,000 Marlboro Lights smokers sued Philip Morris USA for $600 million. Following 17 years of litigation, last month a Massachusetts judge agreed that the plaintiffs were unlawfully tricked into buying what they thought was a safer cigarette. Each plaintiff, however, was awarded only $25 plus interest.