Product Liability Update -- January 2012

by Foley Hoag LLP

In This Issue:

*First Circuit Upholds Design Defect Verdict Involving Table Saw, Holding Plaintiff Adequately Proved Availability of Feasible Alternative Design Despite Weight and Price Differences From Existing Saw, and Hence Verdict Also Did Not Impermissibly Ban Entire Category of Product

*Massachusetts Superior Court Finds Personal Jurisdiction Over Foreign Ski Manufacturer Where Plaintiff Purchased Allegedly Defective Skis in Massachusetts from Store Located Through Search Function on Manufacturer’s Website

*Massachusetts Federal Court Holds Trademark Licensor that Substantially Participated in Design of Excavating Machine Liable as “Apparent Manufacturer” Even Though Licensor Did Not Participate in Machine’s Sale

*Massachusetts Federal Court Holds Plaintiffs in Class Actions Arising Out of Lead in Fruit Products Lacked Injury in Fact, and Hence Standing, Where Products Had Harmed No One and Complied with Federal Standards; Threat of Future Physical Injury Too Speculative, and Plaintiffs Did Not Allege Diminished Value That Could Constitute Economic Injury

*Massachusetts Federal Court Finds Testimony of Frequent Plaintiff’s Expert on Design of Stove Burner Knob Admissible Because Expert Was Qualified as Licensed Mechanical Engineer, and Methodology of Relying on Personal Inspection, Fire Investigator Findings and Prior Incident Reports Was Reliable; Potential Bias Was Matter for Cross-Examination

*Massachusetts Federal Court Holds Expert Testimony Supporting Causal Link Between Infant Formula and Plaintiff’s Injuries Required to Prevail on Claims; Court Stays Discovery and Dismisses Without Prejudice for Failure to Produce Expert Report or Affidavit

Excerpt from First Circuit Upholds Design Defect Verdict Involving Table Saw, Holding Plaintiff Adequately Proved Availability of Feasible Alternative Design Despite Weight and Price Differences From Existing Saw, and Hence Verdict Also Did Not Impermissibly Ban Entire Category of Product

In Osorio v. One World Technologies, Inc., -- F. 3d --, 2011 U.S. App. LEXIS 20174 (1st Cir. Oct. 5, 2011), the plaintiff construction worker was severely injured when his hand slipped into the blade of a table saw manufactured by defendant. The saw – a small, lightweight and inexpensive “benchtop” model – had been purchased by plaintiff’s employer at Home Depot for only $179. Plaintiff sued in the United States District Court for the District of Massachusetts for negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), alleging the saw should have incorporated a novel technology known as “SawStop” that causes a saw blade to immediately stop and retract when it contacts human flesh. After an eight-day trial, the jury returned a $1.5 million verdict for plaintiff. Defendant moved for judgment as a matter of law, arguing, among other things, that plaintiff failed to present evidence of a feasible alternative design because the proposed “SawStop” design would be significantly heavier and far more expensive (more than twice the cost), and that the jury verdict effectively imposed “categorical liability” by banning the sale of lightweight, inexpensive table saws. The court denied defendant’s motion.

Please see full update below for more information.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Foley Hoag LLP

Foley Hoag LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.