Product Liability Update: January 2017

Foley Hoag LLP

Massachusetts Appeals Court Holds Birth Control Patch Manufacturer Had Duty to Warn Patient Directly But Packet Insert Adequately Warned of Greater Risk of Blood Clots As Compared to Birth Control Pill; Design Defect Claim Failed Because Pill Was Not Safer Alternative Design Due to Fundamentally Different Drug Delivery Method -

In Niedner v. Ortho-McNeil Pharmaceutical, Inc., 90 Mass. App. Ct. 306 (2016), plaintiff sued a birth control patch manufacturer in Massachusetts Superior Court for wrongful death and pre-death pain and suffering after her daughter suffered a massive pulmonary embolus and died three months after being prescribed defendant’s patch. Plaintiff asserted claims for breach of express warranty, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), negligence and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute) based on theories of defective design, manufacturing defect and failure to warn of the greater risk of blood clots with a patch as compared to an oral contraceptive. The court granted defendant’s motion for summary judgment on all claims, finding, among other things, that defendant’s patient package insert warnings were adequate as a matter of law.

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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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