Product Liability Update - July 2014

Foley Hoag LLP publishes this quarterly Update concerning developments in product liability and related law of interest to product manufacturers and sellers.

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."

Defendant sought interlocutory relief from the order and the Massachusetts Supreme Judicial Court ("SJC") granted direct appellate review. Defendant argued that, read together, the plain language of Massachusetts Rules of Civil Procedure 12(b), regarding motions to dismiss, and 12(h)(1), regarding the "waiver or preservation of certain defenses," permits a party to raise and preserve a personal jurisdiction defense either by bringing a motion under Rule 12(b)(2) or by asserting it as an affirmative defense in its answer, the latter of which defendant did. Plaintiff argued that while Rule 12 clearly provides that the defense is waived if not raised in either a motion or responsive pleading, the rule does not guarantee the defense's preservation simply by including it in a responsive pleading; in other words, even if a defendant does not waive its personal jurisdiction defense if it chooses the pleading route, it may still forfeit the defense by not pursuing it in a timely fashion, either because of active participation in litigation of the merits or dilatory conduct.

The SJC affirmed, holding that certain circumstances may justify forfeiture of a personal jurisdiction defense, even if asserted in a responsive pleading, but the inquiry must be made on a case-by-case basis. The SJC identified several factors relevant to such an inquiry, including: (1) "the amount of time that has elapsed, as well as the changed procedural posture of the case, in the period between the party's initial and subsequent assertion of the defense"; (2) "the extent to which the party engaged in discovery on the merits"; and (3) "whether the party engaged in substantive pretrial motion practice or otherwise actively participated in the litigation." The Court noted that generally a party that elects merely to plead lack of personal jurisdiction "may ensure [the defense's] preservation by moving to dismiss pursuant to Rule 12(b)(2) within a reasonable time, prior to substantially participating in discovery and litigating the merits of the case."

In so holding, the SJC cited a number of Massachusetts Appeals Court and federal court decisions, the latter under a substantially identical federal rule, that endorsed a broader view of forfeiture of some affirmative defenses that can be raised either by pleading or motion. Those decisions asserted that fairness to the other litigants and court dictates that, where a party can seriously contest the court's jurisdiction, it should seek to resolve the matter expeditiously. Otherwise, a party could "keep the defense of lack of personal jurisdiction in its back pocket, even when engaging in conduct signaling that it is submitting to the court's jurisdiction." Requiring early resolution of personal jurisdiction disputes also promotes judicial economy and efficiency, a fundamental goal of the Massachusetts Rules of Civil Procedure and, in particular, Rule 12. Because lack of personal jurisdiction - unlike other affirmative defenses listed in Rule 12(b) - is a potentially dispositive procedural defect, it is "particularly desirable to resolve [that issue] prior to engaging in substantive litigation."

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

In Zeman v. Williams, 2014 U.S. Dist. LEXIS 91501 (D. Mass. July 7, 2014), plaintiff...