Photo of Alexander L. Zodikoff

Alexander L. Zodikoff is an associate in MG+M's Boston, Massachusetts office, where he is a member of the Complex Litigation Practice Group

In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.


Continue Reading

The overwhelming majority of courts (including all seven federal circuits that considered the issue) have rejected the so-called “innovator liability” doctrine.[1]  In 2017, however, the California Supreme Court in T.H. v. Novartis Pharm. Corp.[2] unanimously recognized the doctrine holding that brand-name prescription drug manufacturers owe a duty to warn to consumers who use generic drugs.[3]  In March of 2018, the Massachusetts Supreme Judicial Court (SJC) considered the issue, and took a middle ground.  Specifically, in Rafferty v. Merck & Co., Inc.,[4] the SJC held that plaintiffs who ingest the generic form of a drug may bring failure to warn claims against the brand-name manufacturer of the drug if the brand-name defendant acted recklessly by “intentionally fail[ing] to update the label on its drug while knowing or having reason to know of an unreasonable risk of death or grave bodily injury associated with its use.”[5]  In so doing, the SJC reasoned that a plaintiff is, in fact, injured by a brand-name product’s label despite never having used said product because statutes require identical labeling of the generically manufactured version.[6]

The Facts

In 2010, a physician prescribed Finasteride, the generic version of the brand name drug Proscar, to treat Rafferty’s enlarged prostate.[7]  Rafferty experienced anticipated temporary side effects from the drug, causing him to stop taking the medication.[8]  Rafferty, however, continued to experience these side effects and his physician informed him that they could actually continue “indefinitely.”[9]  The potential lifelong side effects of this drug were not disclosed within the brand-name manufacturer’s nor the mirrored generic manufacturer’s warning label.[10]  Rafferty presented evidence that the brand-name manufacturer became aware of these potential long-term side effects by 2008, when it updated Proscar’s warning label in select European markets to include this risk.[11]

Rafferty filed suit against the brand-name manufacturer in 2013, asserting a claim of negligence for, inter alia, failure to warn and for violation of the Commonwealth’s Consumer Protection Statute, G.L. c. 93A.[12]  The Superior Court dismissed Rafferty’s claims, “ruling that [the brand-name defendant] owed no duty of care to [him].”[13]  The SJC took over the case by its own motion from the Appeals Court.[14]

The SJC Weighs In

Traditionally, Massachusetts has not recognized liability for products manufactured by others.[15]  However, the SJC noted that The Restatement (Third) of Torts allows a modification to this general rule in exceptional cases.[16] The SJC considered innovator liability to require such a modification given the certainty that a user of a generic drug will rely on the label fashioned by the brand-name manufacturer and as state law shields failure to warn claims from generic manufacturers, leaving plaintiffs without recourse for their injuries.[17] However, the SJC also recognized that imposing innovator liability could impact the public policy of encouraging innovation in the drug market and a potential increase in drug pricing.[18]

Balancing these competing interests, the court held that, “a brand-name manufacturer
Continue Reading

In Santiago[1] v. Rich Products Corp., et al.[2], the Massachusetts Appeals Court held that a finding of spoliation requires both: (1) the negligent and intentional loss or destruction of evidence; and (2) the awareness of the spoliator at the time the evidence is lost or destroyed of the potential for the evidence to help resolve the dispute. The Santiago Court’s strict interpretation of the doctrine of spoliation follows the trend of Massachusetts litigation, shifting focus from the first element, the spoliator’s conduct to the second element, its mental state. The opinion also accentuates the fact that non-compliance with a document retention policy does not equate to per se spoliation.

The underlying dispute arose in 2006, when the plaintiff, Kelvin Santiago, then a 7-year-old first grader at Lowell public schools, experienced traumatic brain damage after choking on meatballs that were served to him during school lunch. The plaintiffs (Kelvin Santiago and his parents) sued the city of Lowell and the entity that produced and sold the meatballs, Rich Products, asserting negligence, breach of the implied warranty of merchantability, and Chapter 93A consumer protection claims, amongst others. Id. at 2. By way of background, in 2004, as part of the Federal government’s initiative to provide healthy lunches to students through the National School Lunch Program, Rich Products began providing and producing meatballs that met the healthy-lunch specification guidelines. To comply with standards promulgated by the United States Department of Agriculture, Rich Products used Profam 974, a soy protein isolate, to achieve the requisite “two ounces of protein per student [per lunch].” Santiago, No. 16-P-504 at 3. The plaintiffs’ counsel argued that the inclusion of Profam 974 rendered the product unreasonably dangerous, because the soy protein produced a meatball whose texture made it a choking hazard. Id. at 6

Upon enduring substantial discovery and motion hearings, in 2014, the Superior Court awarded the city of Lowell summary judgment, and a jury found that Rich Products was not responsible, on the basis that its negligence was not a “substantial contributing factor to the plaintiffs’ injuries.” Id. at 2-3. On appeal, the plaintiffs argued that the trial court erred by, among other things, denying the plaintiffs’ request for an adverse-inference instruction regarding Rich Products’ alleged spoliation of evidence. Id. On December 28, 2017, the Appeals Court “conclude[d] that the trial judge did not abuse his discretion in declining to give a spoliation instruction because the plaintiffs failed to establish the necessary factual predicate that Rich Products lost or destroyed the missing evidence when it knew or should have known of a potential lawsuit.” Id. (emphasis added).

Spoliation is the destruction of evidence, negligently or intentionally, when the litigant is aware or should be reasonably aware that the evidence is relevant to a potential action, whether or not the action has officially commenced. Id. at 7 (citing Mass. G. Evid. § 1102 (2017)). “The doctrine does not extend to a fault-free destruction or
Continue Reading

In the first case of its kind to go to trial, a jury recently returned a defense verdict against a plaintiff who claimed that exposure to Johnson & Johnson’s Baby Powder caused her to develop mesothelioma.

The plaintiff, Tina Herford, filed suit in the Los Angeles County Superior Court and alleged that her exposure to asbestiform fibers, through the inhalation of Johnson & Johnson’s Baby Powder, caused her to develop mesothelioma. In seeking 24 million dollars in damages, Ms. Herford alleged that Johnson & Johnson was aware that its talcum-based products, and specifically its baby powder, were contaminated with asbestos, and that the company concealed this information from the public for approximately 100 years.

Johnson & Johnson presented expert testimony from an oncologist that the proximate cause of Ms. Herford’s mesothelioma was her exposure to radiation from treatments for an unrelated, prior cancer. Johnson & Johnson also denied that its talcum-based products ever contained talc contaminated with asbestos, and stated that Johnson & Johnson complies fully with FDA regulations and standards regarding its baby powder and other products, as well as industry standards established by the Personal Care Products Council (formerly the Cosmetic Toiletries Fragrance Association) for testing crude talc.

After two days of deliberations following a trial that lasted approximately four weeks, a Pasadena, CA jury returned with a verdict for Johnson & Johnson and its co-defendant, Imerys Talc America Inc. The jury rejected the Plaintiffs’ allegations that Imerys had supplied and that Johnson & Johnson sold talc which was contaminated with asbestos. The jury found that J&J did not negligently design or sell its talc products, that the talc product did not fail to perform as safely as a reasonable consumer would have expected, that the talc product was not defective, and that Johnson & Johnson did not fail to warn of any potential risks, “known or knowable based on general scientific knowledge at time of sale.”  As a result, the jury never reached the issue of causation.

The Herford verdict comes in the wake of two rulings which reversed plaintiff verdicts in cases in which plaintiffs had alleged that Johnson & Johnson’s Baby Powder had caused ovarian cancer: Echeverria v. Johnson & Johnson, JCCP4872, Superior Court of Los Angeles, in which a $417M verdict was overturned; and Fox v. Johnson & Johnson, ED104580, Missouri Court of Appeals, Eastern District, where a $72-million verdict against Johnson & Johnson was thrown out.

There are currently more than 5,500 talc-related claims pending in state and federal courts in multiple jurisdictions throughout the United States. The Herford verdict is a reminder that reliable scientific evidence and facts, rather than rumors and rushed judgment, should decide these cases.
Continue Reading

district court
Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial Judge Frederick H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges
Continue Reading