In This Issue:

- First Circuit Holds State Law Claims Against Drug Manufacturer for Allegedly Misleading Efficacy Representations in FDA-Approved Label Preempted by Food, Drug & Cosmetic Act Because Plaintiffs’ Requested Label Changes Were Not Based on Newly Acquired Information and Thus Manufacturer Could Not Have Made Them Without FDA Approval

- First Circuit Holds Notice of Removal Filed More than 30 Days After Service of Complaint Timely Under Class Action Fairness Act Because Defendant Did Not Have Sufficient Information Readily Obtainable from Plaintiffs’ Papers to Determine Amount in Controversy Until Email from Plaintiffs’ Counsel

- First Circuit Holds Due Process Permits Personal Jurisdiction Over Foreign Defendant That Entered Into Contract with Massachusetts Plaintiff for Work Largely to Be Performed by Plaintiff There, and Had Extensive Contacts with Plaintiff in Course of Performance Even Though Only by Phone and Email

- Massachusetts Supreme Judicial Court Holds Administrative Agency’s Fact Findings Relating to Defendant’s Breach of Duty Entitled to Preclusive Effect in Subsequent Class Action, But Class Certification Properly Denied As Requiring Individualized Assessment of Causation for Each Putative Class Member

- Massachusetts Federal Court Holds Cigarettes Not Defective Unless Proposed Safer Design with Ultra-Low Tar Would Have Been Acceptable to Rational, Informed, Non-Addicted Consumers, But Proof of Any Decreased Lung Cancer Risk with Alternative Design Sufficient to Establish Causation for Medical Monitoring Claim

- Massachusetts Federal Court Holds Manufacturer’s Disclaimer of Implied Warranties to Consumers Unenforceable, Express and Implied Warranty Claims Sufficient Where Plaintiff Alleges Humidifier Leaked and Required Substantial Maintenance But Manufacturer Refused to Repair or Replace It

- Massachusetts Superior Court Holds Manufacturer and Seller of Propane-Powered Dryer Voluntarily Assumed Duty to Warn of Risks of Propane Not Supplied by Them, as They Provided Some Warnings on Dryer and in Instruction Manual, But Dismisses Punitive Damages Claims Due to Defendants’ “Appreciable” Warning Efforts

- Excerpt from First Circuit Holds State Law Claims Against Drug Manufacturer for Allegedly Misleading Efficacy Representations in FDA-Approved Label Preempted by Food, Drug & Cosmetic Act Because Plaintiffs’ Requested Label Changes Were Not Based on Newly Acquired Information and Thus Manufacturer Could Not Have Made Them Without FDA Approval:

In In re: Celexa and Lexapro Marketing and Sales Practices Litigation, 2015 U.S. App. LEXIS 2632 (1st Cir. Feb. 20, 2015), plaintiffs purchased a prescription antidepressant drug to treat their adolescent son’s major depressive disorder but did not obtain the results they hoped for. Alleging that information in the drug’s label had misled both their son’s physician and them as to the drug’s effectiveness, plaintiffs sued the manufacturer in the United States District Court for the Central District of California on behalf of themselves and all other Californians who purchased the drug for an adolescent from March 2009 to the present. Plaintiffs claimed defendant omitted material information about the drug’s efficacy from the label in violation of California consumer protection laws, causing plaintiffs to spend money on a drug that was no more effective than a placebo. Plaintiffs sought an injunction ordering defendant to cease selling the drug under its current label and to seek approval from the United States Food and Drug Administration (“FDA”) for a new, accurate label. The Judicial Panel on Multidistrict Litigation transferred the case to the United States District Court for the District of Massachusetts as part of an ongoing multidistrict litigation, and defendant moved to dismiss on the grounds that plaintiffs’ claims failed under a safe harbor provision in the California consumer protection laws and were preempted by the Food, Drug, and Cosmetic Act (“FDCA”). The district court allowed the motion under California law without reaching the preemption issue.