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In re Celexa and Lexapro Marketing and Sales Practices Litigation

United States District Court, D. Massachusetts

June 9, 2016

In re CELEXA AND LEXAPRO MARKETING AND SALES PRACTICES LITIGATION
v.
FOREST LABORATORIES, INC., FOREST LABORATORIES, LLC and FOREST PHARMACEUTICALS, INC., Defendants. DELANA S. KIOSSOVSKI and RENEE RAMIREZ, Plaintiffs, Civil Action No. 14-13848-NMG

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This case arises out of the marketing and sales of the related anti-depressant drugs Celexa and Lexapro by defendants Forest Laboratories, Inc., Forest Laboratories, LLC and Forest Pharmaceuticals, Inc. ("defendants" or, collectively, "Forest"). Plaintiffs Delana Kiossovski ("Kiossovski") and Renee Ramirez ("Ramirez") allege that defendants engaged in a fraudulent marketing scheme designed to induce consumers to purchase Celexa and Lexapro for pediatric use.

         Pending before the Court is defendants’ motion to dismiss and/or to strike certain claims in the amended complaint (Docket No. 548). For the reasons that follow, that motion will be denied.

         I. Background and procedural history

         The background and early procedural history are set forth in this Court’s earlier Memorandum & Order addressing defendants’ motion to dismiss the initial complaint (Docket No. 572). The relevant factual allegations for the purposes of the pending motion are summarized below.

         Celexa and Lexapro are closely-related selective serotonin reuptake inhibitor ("SSRI") anti-depressants. Forest sought to market both drugs for treating major depressive disorder ("MDD") in children and adolescents and, to that end, conducted four sets of efficacy studies. Celexa Study 94404 and Lexapro Study 15 produced negative results while Celexa Study 18 ("MD-18") and Lexapro Study 32 produced arguably positive results. The FDA-approved labels for both drugs prior to 2005 stated that "[s]afety and effectiveness in pediatric patients have not been established". Forest revised the labels in 2005 to include descriptions of the efficacy studies.

         In March, 2009, the FDA reviewed the positive results in MD-18 and Lexapro Study 32, noted the chemical similarities between Celexa and Lexapro and approved Lexapro as safe and effective in treating MDD in adolescents. Forest did not seek similar FDA approval for Celexa.

         In August, 2014, former plaintiff Marlene LoConte ("LoConte") and plaintiff Kiossovski commenced this action in the Western District of Washington by filing a complaint on behalf of themselves and putative consumer classes. They alleged that Forest fraudulently promoted the pediatric and adolescent use of Celexa and Lexapro despite knowing that the drugs did not provide any clinically significant benefit over placebos in treating MDD. The case was transferred to the District of Massachusetts pursuant to a multi-district litigation assignment to this Court in October, 2014.

         In June, 2015, this Court 1) allowed defendants’ motion to dismiss the complaint with respect to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the Massachusetts Consumer Protection Act, M.G.L. c. 93A ("Chapter 93A") and unjust enrichment claims brought by LoConte and 2) denied the motion with respect to the RICO, Washington Consumer Protection Act ("CPA") and unjust enrichment claims brought by Kiossovski.

         Plaintiffs amended the complaint in January, 2016 by replacing LoConte with Ramirez as the second plaintiff and putative class representative. The amended complaint raised two RICO claims by Kiossovski and Ramirez, an unjust enrichment claim by both plaintiffs and a CPA claim by Kiossovski.

         II. Motion to dismiss

         Defendants move to dismiss Ramirez’s individual claims and the putative class action claims relating to Lexapro and adolescent use.

         A. Legal standard

         To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Santiago v. Puerto Rico,655 F.3d 61, 72 (1st Cir. 2011). Threadbare recitals of the legal elements, supported by mere conclusory statements, do not suffice to state a cause of action. Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). A complaint does ...


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