Product Liability Update

Product Liability Update

April 7, 2015

Foley Hoag's Product Liability Update is a quarterly update concerning developments in product liability and related law of interest to product manufacturers and sellers. If you find this update useful, please encourage your colleagues and contacts to also register with us on our Web site. As always, you can access all of our publications at www.foleyhoag.com

Included 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:

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.

Download the April 2015 Foley Hoag Product Liability Update (pdf).