En Banc 9th Circuit Keeps Painkiller Case in Federal

(CN) - When attorneys sought coordination of several propoxyphene actions in state court, they actually proposed that the cases be tried jointly by a federal judge, the en banc 9th Circuit ruled Tuesday.

In addition to multidistrict litigation in the Eastern District of Kentucky, there are more than 40 lawsuits pending in California's state courts against Teva Pharmaceuticals and Xanodyne Pharmaceuticals over the pain reliever formerly marketed as Darvocet and Darvon. Safety concerns got the drugs pulled from the market in 2010.

Lawyers heading up much of the litigation asked the California Judicial Council in 2012 to coordinate the state-court proceedings under a local rule of civil procedure. Teva and Xanodyne meanwhile tried to remove the cases to federal court under the "mass-action provision" of the Class Action Fairness Act.

The companies argued that the cases became a "mass action" subject to federal jurisdiction when the plaintiffs' lawyers proposed a joint-trial in their coordination petition.

Finding that the petition for coordination was not the same as a proposal for a joint trial, U.S. District Judge Philip Gutierrez remanded the cases to state court.

A three-judge appellate panel affirmed, but the 9th Circuit agreed to rehear the issue before an 11-judge panel.

That panel reversed on Tuesday in a 9-2 ruling.

"We conclude that plaintiffs' petitions for coordination are proposals for joint trial," Judge Ronald Gould wrote for the majority.

The use of the phrases "for all purposes" and "all of the actions" had transformed the coordination proposal, according to the ruling.

The majority rejected claims by the plaintiffs that one must "expressly request" a joint trial to qualify as a mass action under the CAFA.

Judge Marsha Berzon joined Judge Johnnie Rawlinson in a dissent challenging this finding.

Admitting that the case was "fairly close," Rawlinson argued that the majority had ignored the "well-established premise that removal is disfavored when determining federal jurisdiction, and that any doubt that exists when considering removal statutes should be construed against removal."

With this in mind, the court should have affirmed, as the "plaintiffs' petition for coordination stopped short of requesting a joint trial as contemplated by the plain language of the statute," Rawlinson wrote.

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