Thermo Fisher Draws First Blood in Lawsuit Over Defective COVID-19 PCR Tests

Case: At the start of the pandemic, a New Jersey lab signed a contract to purchase COVID-19 PCR testing materials and software from Thermo Fisher. Almost immediately, the lab started experiencing significant problems with the tests, including inconclusive results, invalid tests, and testing failures. After initially insisting that the tests were reliable, TF recalled the products in September. The lab sued TF and two related entities for breach of contract and express warranty. TF claimed that the lab’s legal claims were defective. The New Jersey federal court agreed and dismissed the claims. Significance: The decision to dismiss was based not on the substantive validity of the claims but how they were stated. Specifically, the lab failed to stipulate: i., exactly what the contract and warranty promised about the products; ii., how the product didn’t meet those promises; nor iii., which one or combination of the three companies named as defendants signed the contract or made the expressed warranty. But rather than kill the case, the judge gave the lab 30 days to submit an amended complaint. [Gene Tox Worldwide, LLC v. Thermo Fisher Sci., Inc., 2022 U.S. Dist. LEXIS 38246, 2022 WL 599489].