Massachusetts state and federal courts issued a number of important product liability decisions in 2016. The Product Liability and Toxic Tort Litigation Group at Nutter recently reviewed these cases. Highlighted below are some of the key cases and issues decided in the past year. For a more comprehensive analysis of any of the decisions discussed below, please click on the case name.

Tersigni v. Wyeth, 817 F.3d 364 (1st Cir. Mar. 23, 2016): Affirmed First Circuit precedent that a party who preemptively introduces evidence to “remove its sting” waives any later objection to its admissibility. The trial court’s admission of other arguably objectionable evidence, if error, was harmless; the jury did not consider it. (Stahl, J.)

Milward v. Rust-Oleum Corp., 820 F.3d 469 (1st Cir. April 25, 2016): District Court properly excluded expert testimony where the witness conducted a relative risk analysis, but she ignored conflicting studies and failed to explain why. The same expert also ran a differential diagnosis, but she “ruled in” the alleged cause of plaintiff’s illness without a reliable basis to do so. Summary judgment affirmed. (Howard, C.J.)

Fertik v. Stevenson, 186 F. Supp. 3d 98 (D. Mass. May 13, 2016): Res ipsa loquitur barred cardiac guide wire manufacturer’s motion for summary judgment as to plaintiff’s manufacturing defect claim. No evidence suggested that the wire was mishandled between its manufacturer and the operating theater, so the wire was still in defendant’s “control” when it broke during surgery. And while the operating surgeon’s use was off-label, it was foreseeable. Since such breaks are rare, a jury could find that a defect caused this one. (Saris, C.J.)

Albright v. Boston Scientific Corp., 90 Mass. App. Ct. 213 (2016): Massachusetts Appeals Court reversed a defense verdict in favor of a transvaginal mesh manufacturer and remanded the case. The Appeals Court held that it was prejudicial error to exclude from evidence a caution from the supplier of an ingredient in the mesh and two letters from the FDA to the manufacturer of the mesh. (Katzmann, J.)

Niedner v. Ortho-McNeil Pharm., Inc., 90 Mass. App. Ct. 306 (2016): The exception under Massachusetts law to the learned intermediary doctrine for oral contraceptives applies to hormonal birth control products, such as the birth control patch. The manufacturer of the Ortho Evra patch adequately warned the patient of the patch’s risks and was not liable for defective design because the plaintiff did not show that the patch has a safer alternative design. (Blake, J.)

Rafferty v. Merck & Co., No. 2013-04459, 2016 WL 3064255, 2016 Mass. Super. LEXIS 48 (Mass. Super. Ct. May 23, 2016): A Massachusetts trial court rejected the theory of innovator liability in dismissing a plaintiff’s claims against a brand-name drug manufacturer related to injuries the plaintiff allegedly sustained after ingesting a generic version of the drug. (Fishman, J.)

Nutter’s Product Liability: 2016 Year in Review is a publication of the Product Liability and Toxic Tort Litigation Group of Nutter McClennen & Fish LLP in Boston. The bulletin was prepared by Andrew R. McArdell and Alison T. Holdway.