In This Issue:

- First Circuit Holds Plaintiff Lacks Standing to Recover for Allegedly Defective Product Based on Risk of Future Harm From Lightning Strike Where Complaint Contained Insufficient Facts to Demonstrate Risk Was Beyond Speculative or That Product Failed to Comply with Industry or Regulatory Standards

- Massachusetts Federal Court Holds Defendants Not Subject to General Personal Jurisdiction Due to Lack of In-State Incorporation or Principal Place of Business, and Transfer to Court Having Jurisdiction Not Authorized as One Transfer Statute Applies Only Where Subject Matter Jurisdiction is Lacking and Another Only Where Venue is Improper

- Massachusetts Federal Court Holds Manufacturer’s Repeated Representations Pumps Originally Designed for Whirlpools Could Be Successfully Used With Spa Tubs Sufficient to Create Jury Question on Implied Warranties of Merchantability for Ordinary Purpose and Fitness For Particular Purpose

- Massachusetts Federal Court Holds Threat of Physical Injury to Persons Not Required for Tort-Based Failure-to-Warn Claims, and “Economic Loss Doctrine” Does Not Bar Tort-Based Claims Against Manufacturer of Allegedly Defective Component for Damage to Product Into Which Component Was Incorporated if Latter Was Made by Different Entity Than Component Manufacturer

- Massachusetts Federal Court Holds Smartphone’s Random Shutdowns While in “Sleep” Mode Insufficient to State Warranty Claim Where Shutdowns Were Infrequent and Remedied by Pressing “On” Button, and Expert’s Personal Observations of Plaintiff’s Phone Did Not Provide Reliable Basis for Opinion of Defect in Model or Causation of Plaintiff’s Shutdowns

- Excerpt from First Circuit Holds Plaintiff Lacks Standing to Recover for Allegedly Defective Product Based on Risk of Future Harm From Lightning Strike Where Complaint Contained Insufficient Facts to Demonstrate Risk Was Beyond Speculative or That Product Failed to Comply with Industry or Regulatory Standards:

In Kerin v. Titeflex Corp., 2014 U.S. App. LEXIS 21057 (1st Cir. Nov. 4, 2014), plaintiff owned a home with an outdoor fire pit supplied with natural gas through corrugated stainless steel tubing (“CSST”). Although CSST can fail when exposed to powerful electrical forces such as lightning, it is widely used and approved by both government and industry regulatory bodies. Even though plaintiff’s CSST had never caused a problem, he sued its manufacturer 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). Citing reports of 141 home fires that “involved” both CSST and lighting, plaintiff alleged his CSST was defectively designed because, in the event of a nearby lightning strike, it was vulnerable to puncture and fire and defendant had failed to warn of this risk. He sought damages in the amount of his “overpayment” for the allegedly defective product or, in the alternative, the cost of remedying the alleged safety issue.

The district court dismissed for lack of standing under Article III of the United States Constitution, holding “it is obvious that Plaintiff cannot clear the ‘injury in fact’ hurdle.” The court reasoned that the “strand of conjecture . . . is simply too attenuated,” requiring both a lightning strike and one that effects a puncture in the CSST. The court also concluded that even if plaintiff had standing, he failed to state a claim because he did not allege “an applicable standard against which [defendant’s] due care could be measured” as required to claim economic injury from a defective product under Massachusetts law.