Product Liability Update - August 2009



* Massachusetts Supreme Judicial Court Holds Sale Terms Mandating Individualized Arbitration of Claims Violate Public Policy of Unfair and Deceptive Practices Statute Favoring Classwide Resolution of Small-Value Consumer Claims

*Massachusetts Federal District Court Holds Requirement that Electronic Documents be Produced as Kept in Usual Course of Business Requires Production of Files in “Native” Format But Does Not Require Producing Party to Scan Electronic Documents for Optical Character Recognition, Refuses to Require Blanket Production of Electronic Documents’ Metadata

*Massachusetts Federal District Court Holds Plaintiffs’ Pharmaceutical Causation Experts’ Opinions Admissible Because Based on Extrapolation of Collective Epidemiological Study to Drug at Issue, Evidence of Biological Plausibility and Adverse Event Reports

*Massachusetts Federal District Court Denies Certification of Putative Class of Consumers and Third-Party Payors Alleging Fraudulent Marketing of Drug Because Causation Could Not Be Demonstrated by Classwide Statistical Evidence and Hence Common Issues Regarding Marketing Would Not Predominate Over Individual Issues of Causation

*Massachusetts Federal District Court in Actions Alleging Off-Label Promotion of Drug Dismisses Fraud Claims For Failure to Allege Physicians’ Reliance on a Particular Misrepresentation, Refuses to Dismiss Fraudulent Concealment Claims as Duplicative of Failure-to-Warn Claims Because of Scienter Requirement of Fraudulent Concealment

Please see full update below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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