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. If you find this update useful, please encourage your colleagues and contacts to also register with us on our website. As always, you can access all of our publications at

Included in this Issue:


  • First Circuit Holds Putative Class Action Claims Alleging Deceptive Practices In Labeling of Lactase Product As Dietary Supplement Instead Of Drug When Product Claimed To Treat Lactose Intolerance (Allegedly A Disease), And Disclaiming United States Food & Drug Administration (FDA) Approval, Both In Violation Of Federal Food, Drug, And Cosmetic Act (FDCA), Impliedly Preempted, As FDCA Limits Enforcement To FDA And Thus Preempts State Law Claims Predicated Solely On FDCA Violations
  • First Circuit Holds Due Process Forbids Exercise Of Personal Jurisdiction In New Hampshire Over Claims Against Lettuce Distributor And Restaurant Supplier Based On New Hampshire Plaintiff's Purchase And Consumption Of Contaminated Salad From New Jersey Deli, As Neither Distributor's Distribution Of Lettuce Into New England Nor Supplier's Sale of Lettuce To New Hampshire Restaurants Was Sufficiently Related To Plaintiff's Claims
  • Massachusetts Federal Court Denies Summary Judgment To Manufacturer of Retrievable IVC Filter Against (1) Negligent Design Claim, Holding Factual Dispute Exists Whether Permanent Filters Represent Alternative Design Or Different Product, (2) Strict Liability-Equivalent Design Defect Claim, Refusing To Extend "Comment k" Strict Liability Exemption For Prescription Drugs To Prescription Medical Devices, And (3) Negligent Failure-To-Warn Claims, Holding Expert Testimony Of Warning Inadequacy Sufficient And Presumption Physician Would Have Heeded Adequate Warning And Ambiguity In Physician's Testimony Regarding Effect Of Disclosure Of Comparative Fracture Rates Created Fact Dispute On Causation
  • Massachusetts Federal Court Holds Swiss Manufacturer Of Allegedly Defective Bicycle Part Did Not Transact Business In-State Under Long-Arm Statute Where Manufacturer Only Advertised Globally And Sold Only To Distributors Outside State; Due Process Did Not Prohibit Jurisdiction Over British Online Seller Of Part As Seller Sent Plaintiff Direct Advertisements In Massachusetts For Product And Created Account Through Which He Bought And Returned Multiple Products, Hence Claim Arose Out Of Seller's Purposeful Availment Of Massachusetts Law And Jurisdiction Was Reasonable, But Jurisdictional Discovery Needed To Determine Whether Claims Satisfied Long-Arm Statute


  • New York Federal Court Rejects Arguments Of Social Media Companies Sued For Video Content Encouraging Plaintiffs' Son's Suicide That New York Municipal And Transit Entities Sued For Failure To Maintain Fencing Were Improperly Joined To Defeat Federal Court Jurisdiction, As All Claims Arose From Same Occurrence, And That Jurisdictional Issue Should Be Transferred For Determination By Court In Multi-District Litigation Where Plaintiffs Originally Sued Before Voluntarily Dismissing
  • New York Federal Court Holds All Of Plaintiffs' Expert Testimony That Prenatal Exposure To Acetaminophen Caused Autism Spectrum Disorders and ADHD Unreliable And Hence Inadmissible; As Example, One Expert Applied Bradford Hill Causation Criteria To Neurodevelopmental Disorders, Including Autism and ADHD, Collectively Rather Than Separately, That Disorders In Studies Were Diagnosed Following Maternal Acetaminophen Use Did Not Address Whether They Only Developed After That Use And Expert Did Not Sufficiently Consider Evidence Regarding Potential Confounding Role Of Genetic Causation

Download the January 2024 Foley Hoag Product Liability Update (pdf).

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.