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395.Vassallo.v.Baxter - Florence and Vincent Vassallo v...

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Florence and Vincent Vassallo v. Baxter Healthcare Corporation & Baxter International, Inc. Supreme Judicial Court of Massachusetts 428 Mass. 1; 696 N.E.2d 909 May 5, 1998, Argued July 16, 1998, Decided PRIOR HISTORY: Middlesex. Civil action commenced in the Superior Court Department on October 1, 1993. The case was tried before Margot Botsford, J. The Supreme Judicial Court granted an application for direct appellate review. DISPOSITION: Affirmed. COUNSEL: David R. Venderbush, of California (Harry T. Daniels with him) for the defendants. Fredric L. Ellis (Edward D. Rapacki with him) for the plaintiffs. Hugh F. Young, Jr., of Virginia, & David R. Geiger, for Associated Industries of Massachusetts & others, amici curiae, submitted a brief. JUDGES: Chief Judge Wilkins, and Justices Abrams, Lynch, Greaney, and Marshall. OPINION BY: Judge Greaney OPINION [1] In this products liability case, the plaintiff Florence Vassallo claimed that the defendants, Baxter Healthcare Corporation and Baxter International, Inc., were liable to her for damages because silicone breast implants, manufactured by a predecessor company to the defendants (Heyer-Schulte Corporation), which had been implanted in her, were negligently designed, accompanied by negligent product warnings, and breached the implied warranty of merchantability, with the consequence that she was injured. The plaintiff Vincent Vassallo claimed a loss of consortium. The plaintiffs also asserted a claim for violation of G. L. c. 93A, §§ 2 (a) and 9. [2] A jury in the Superior Court heard the negligence and breach of warranty claims, returned verdicts (in response to special questions) on those claims in favor of the plaintiffs, and assessed damages. The judge entered a separate memorandum of decision on the G. L. c. 93A claim in which she found the defendants liable for a violation of that statute. The judge concluded that the defendants' conduct was not knowing or wilful, determined that an assessment of additional compensatory damages would duplicate the damages determined by the jury, and awarded the plaintiffs their reasonable attorney's fees and costs. The defendants appealed from the judgment, and we allowed their application for direct appellate review. 1
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[3] We conclude that the determinations of liability as to the negligence and G. L. c. 93A claims are correct, and the judgment can be affirmed on this basis. As a result, we need not consider the defendants' arguments concerning the warranty findings. [4] We conclude, however, that we should change our products liability law to conform to the clear majority rule regarding what has to be shown to recover in a breach of warranty claim for failure to warn of risks associated with a product, and we do so in Part 3 of this opinion. [5] The jury could have based their verdicts on the following evidence. In February, 1977, at the age of forty-eight, Mrs. Vassallo underwent breast implantation surgery.
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