Eric J. Parker
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Massachusetts Lawyers Weekly
October 12, 2020
U.S. magistrate judge Katherine A. Robertson has ruled in a case of first impression, that a patient who allegedly suffered an infection caused by a defectively designed mesh patch implanted during a hernia operation could bring a claim against the manufacturer under the implied warranty of merchantability.
Boston attorney Eric J. Parker, who represents plaintiffs in product liability cases, called the ruling a “narrowing of a draconian limitation.
This is a great development for the plaintiffs’ bar because anything that takes a broad brush to such an important and nuanced variety of cases — and there are very important nuances to the types of products that come to form civil complaints — and say they’re unavoidably dangerous is counter to the stance Massachusetts has historically taken,” Parker said. “We do not have strict liability. We have the breach-of-warranty concept, which is a close second, but it already shows there’s an open mind toward the individual instrumentality of harm.
He also praised the decision’s recognition that plaintiffs need discovery.
This was a motion to dismiss before the horses were even allowed out of the gate, and we often don’t have access to certain information critical to a well-drafted complaint,” Parker said. “Here, the judge seems to acknowledge that discovery might develop additional information that supplements the allegations in the complaint.
