In Watkins v Omni Life Science, Inc, 2010 WL 809820 (D Mass March 9, 2010), two Oklahoma residents brought a purported class action against a medical device manufacturer in the United States District Court for the District of Massachusetts asserting claims, among others, for breach of implied warranty, violations of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute) and violations of the consumer protection laws of all other states as a result of the allegedly defective design of a hip prosthesis. Although neither plaintiff alleged that the hip had malfunctioned, they claimed injury because the hips were “substantially likely” to fail and thus less valuable than plaintiffs believed, i.e., that they did not receive the benefit of their bargain. Plaintiffs also alleged injury in the form of apprehension that the hips would fail in the future.
Defendant, represented by members of Foley Hoag LLP’s Product Liability and Complex Tort Practice Group, moved to dismiss all claims on the basis that plaintiffs had not pled a legally cognizable injury. Plaintiffs argued that their injuries resembled those alleged in Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381 (2004) (see November 2004 Foley Hoag Product Liability Update), in which smokers who bought low-tar cigarettes that for some smokers did not in fact deliver low tar levels were held to have suffered an injury under ch. 93A because they “paid more for the cigarettes than they would otherwise have paid.” The court, however, held that plaintiffs’ alleged injury was analogous to those alleged in Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008) (see August 2008 Foley Hoag Product Liability Update), where plaintiffs had “received a product which is . . . functioning as it was intended” and, therefore, had suffered no legally cognizable harm. The court held that plaintiffs’ apprehension of a heightened risk of product failure was not sufficient to support a claim where the product had not actually failed or caused plaintiffs harm.
With respect to the non-ch. 93A claims, the court held that the benefit of the bargain theory of economic loss did not constitute a legally cognizable injury supporting recovery in tort. Rather, such recovery would be permitted only if there was personal injury or property damage.