In This Issue:

- 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 Specific 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 Beneficial 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

- Excerpt from 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 fitness, 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 affirmative defense and stated that it was “specially appearing and specifically 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 filed 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 finding defendant waived the defense “by delay in bringing [it] forward, coupled with participation in discovery and motions regarding the merits.”