Product Liability Update
July 2014In This Issue:
Foley Hoag LLP publishes this quarterly Update concerning developments in product liability
and related law of interest to product manufacturers and sellers.
Massachusetts Supreme Judicial Court Holds Foreign Manufacturer
Which Pled Meritorious Personal Jurisdiction Defense in Answer, But
Did Not Move to Dismiss, Forfeited Defense By Participating in Merits
Discovery for Eighteen Months Before Pressing Defense in Summary
Judgment Motion
In American International Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109
(May 14, 2014), a valuable painting was damaged when it fell from the wall where
it had been hung with picture hangers manufactured by a German company. The
homeowner’s insurer sued the manufacturer and the hangers’ seller in Massachusetts
Superior Court alleging negligence, breach of the implied warranties of merchantability
(the Massachusetts near-equivalent of strict liability) and tness, and violation of Mass.
Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute). In its
answer, the manufacturer pled lack of personal jurisdiction as an afrmative defense
and stated that it was “specially appearing and specically reserving the right to contest
this Court’s personal jurisdiction over [it],” but did not move to dismiss. The parties then
proceeded to take discovery on the merits and, after nearly eighteen months, defendant
led a summary judgment motion based on both the personal jurisdiction defense and
the merits. The trial court found that defendant had an “airtight claim that this Court
lacks personal jurisdiction,” but nevertheless denied the motion nding defendant waived
the defense “by delay in bringing [it] forward, coupled with participation in discovery and
motions regarding the merits.”
Defendant sought interlocutory relief from the order and the Massachusetts Supreme
Judicial Court (“SJC”) granted direct appellate review. Defendant argued that, read
together, the plain language of Massachusetts Rules of Civil Procedure 12(b), regarding
motions to dismiss, and 12(h)(1), regarding the “waiver or preservation of certain
defenses,” permits a party to raise and preserve a personal jurisdiction defense either
by bringing a motion under Rule 12(b)(2) or by asserting it as an afrmative defense
in its answer, the latter of which defendant did. Plaintiff argued that while Rule 12
clearly provides that the defense is waived if not raised in either a motion or responsive
pleading, the rule does not guarantee the defense’s preservation simply by including it
in a responsive pleading; in other words, even if a defendant does not waive its personal
jurisdiction defense if it chooses the pleading route, it may still forfeit the defense by not
pursuing it in a timely fashion, either because of active participation in litigation of the
merits or dilatory conduct.
The SJC afrmed, holding that certain circumstances may justify forfeiture of a personal
jurisdiction defense, even if asserted in a responsive pleading, but the inquiry must be
◼ Massachusetts Supreme Judicial Court
Holds Foreign Manufacturer Which Pled
Meritorious Personal Jurisdiction Defense
in Answer, But Did Not Move to Dismiss,
Forfeited Defense By Participating in
Merits Discovery for Eighteen Months
Before Pressing Defense in Summary
Judgment Motion
◼ Massachusetts Federal Court Holds
Manufacturer of Investigational Drug and
Medical Device Responsible for Clinical
Trial Investigator’s Allegedly Inadequate
Informed Consent Form; Plaintiff’s Design
and Manufacturing Defect Claims Failed
Due to Lack of Specic Factual Allegations
in Complaint
◼ Massachusetts Federal Court Rejects
Claim for Negligent “Failure to Discontinue
Marketing” Against Prescription Drug
Manufacturer as Inconsistent with
Massachusetts Law’s Recognition
That Such Drugs Are Benecial But
Unavoidably Unsafe and Hence Not
Unreasonably Dangerous
◼ First Circuit Holds Beryllium Plaintiffs
Could Not Establish Claim for Medical
Monitoring Under Existing Massachusetts
Law Due to Lack of Proof of Subcellular
Injury, and Contention Law Should Not
Require Such Proof Was Waived By
Counsel in Discussions Framing Summary
Judgment Issues
◼ Massachusetts Federal Court Grants
Summary Judgment Against Plaintiff’s
Claim that Allegedly Defective Drill Caused
Fire Where Plaintiff Could Not Identify Drill
Model and Proffered No Admissible Expert
Evidence of Defect or Causation
◼ Massachusetts Federal Court Holds
Plaintiff’s Injuries from Being Struck by
Police Cruiser Responding to False Fire
Alarm Not Proximately Caused by Allegedly
Negligent Conduct of, Among Others,
Manufacturer and Seller of Product that
Caused False Alarm
