Abbott Seizure Med Cases Aren’t Fit for State Court

     CHICAGO (CN) – Hundreds of consumers suing Abbott Laboratories over its seizure medication must consolidate their claims in federal court, the 7th Circuit ruled.
     Between August 2010 and November 2011, several hundred plaintiffs sued Abbott over Depakote, an anticonvulsant drug used to treat seizures and bipolar disorder, and to prevent migraines. The 10 suits allege that Abbott continued to market and distribute Depakote despite knowing of the drug’s propensity to cause birth defects.
     In December, the plaintiffs asked the Illinois Supreme Court to consolidate and transfer the cases to St. Claire County. The state Supreme Court has yet to rule on the request.
     Abbott immediately removed the cases to federal court, citing the mass-action provision of the Class Action Fairness Act (CAFA). The suits were divided between the Northern District and Southern District of Illinois.
     Under CAFA, any case involving 100 or more people trying their related claims jointly can be removed to federal court.
     The plaintiffs opposed removal, arguing that they did not propose a joint trial when they asked the Illinois Supreme Court to consolidate the cases. They said that they proposed only that all proceedings take place in a single county.
     “In plaintiffs’ view, for the mass action provision to apply they would need to take the further step of requesting a joint trial or an exemplar trial that would affect the remaining cases,” according to the 7th Circuit’s summary of the case.
     The two federal judges hearing the cases issued conflicting rulings. U.S. District Judge G. Patrick Murphy sided with the plaintiffs, sending the case back to state court. U.S. District Judge John Darrah, on the other hand, thought the cases belonged in federal court.
     The 7th Circuit said it took up the issue “to resolve the differing approaches by the two district courts, and because the petitions present a novel issue [that] … will be helpful to future litigants.”
     A three-judge panel sided with Abbott on Tuesday, noting that “a proposal for a joint trial can be implicit, particularly where ‘the assumption would be that a single trial was intended.'”
     “We agree with Abbott that it is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases,” Judge John Tinder wrote for the panel. “In either situation, plaintiffs’ claims would be tried jointly.”
     The plaintiffs failed to show that the consolidation request cannot be considered for the purposes of CAFA because it was not filed in a circuit court.
     “[CAFA] does not say where a proposal for a joint trial must be made, but a reasonable conclusion is that it must be made to a court that can effect the proposed relief,” Tinder wrote.
     The 7th Circuit reversed Murphy’s ruling and affirmed that of Darrah, bringing the cases into federal court.
     Abbott Labs is no stranger to mass action suits in the 7th Circuit. The company won a major victory last May, convincing the appeals court that pharmaceutical sales representatives should not have to be paid overtime.

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