Federal Court Boots|Merck Cancer Cases

     (CN) – Mass-action status is not available to five separate suits that say Merck’s incretin-based therapy for diabetes causes pancreatic cancer, the Ninth Circuit ruled.
     Short for the Class Action Fairness Act, CAFA defines a “mass action” as a civil action in which “monetary relief claims of 100 or more person are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”
     Each of the five cases at issue was in California state court, with the lead plaintiffs hoping to represent fewer than 100 plaintiffs who developed pancreatic cancer after using of incretin-base therapies for diabetes, including those produced by Merck Sharp & Dohme Corp.
     Though Merck removed four of the five cases based on diversity jurisdiction, a federal judge in San Diego remanded the cases to state court.
     Merck then removed all five cases to federal court, this time claiming that claims the plaintiffs made during the first removal attempt caused a mass-action conversion.
     A federal judge had upheld the drugmaker’s move, but the Ninth Circuit reversed Thursday, ruling that the lawsuits do not qualify as a mass action.
     Although plaintiffs made statements indicating they anticipated their cases would be joined in state court, “in none of the five cases did plaintiffs propose that the claims of one hundred or more persons be tried jointly,” Judge William Fletcher said, writing for the three-judge panel.
     Judges Richard Paez and Marsha Berzon joined the Pasadena-filed opinion.
     “At most, we can say that plaintiffs filed their complaints with the knowledge that there was a strong likelihood that their cases would be joined,” Fletcher said. “This likelihood alone cannot to trigger CAFA’s mass action jurisdiction, for some entity – either one of the parties or the state court – would have to take some action to effectuate the joinder.”
     The court again remanded the case to state court for further proceedings.

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