Teva Pain Drug Lawsuits Will Stay in State Court

     (CN) – Coordinating dozens of lawsuits over the pain drug propoxyphene does not necessarily create a joint trial that triggers federal jurisdiction, the 9th Circuit ruled.
     After products containing the opioid, namely Darvocet and Darvon, enjoyed nearly 40 years on the market, overdose concerns led the Food and Drug Administration to take the pain relievers off the shelves in 2010. Teva Pharmaceuticals owned the rights to the generic version of the drugs.
     More than 40 lawsuits over the products containing propoxyphene have been filed in California’s state courts, and in late 2012 a group of attorneys asked the California Judicial Council for a “coordinated proceeding” of all of them.
     Teva took the request as a proposal to try all of the cases jointly, and thus sought to remove the case to federal court under the Class Action Fairness Act (CAFA). U.S. District Judge Philip Gutierrez disagreed in Los Angeles and sent the case back to state court, setting up a question of first impression for the 9th Circuit Court of Appeals.
     A divided three-judge panel affirmed Tuesday, finding that a petition for coordination in California state court does not necessarily require the cases to be tried jointly under the CAFA.
     “California Code of Civil Procedure section 404 allows the coordination of ‘all of the actions for all purposes,'” Judge Johnnie Rawlinson wrote for the panel. “However, the plaintiffs’ petition for coordination stopped far short of proposing a joint trial. This fact is important because … both the Supreme Court and our court recognize that the plaintiff is, and should be, in control of selection of the litigation forum.”
     Noting that the lawyers’ petition for coordination dealt largely with discovery issues, Rawlinson added that “it is quite a stretch to discern a request for joint trial when the clear focus of the petition is on pretrial matters.”
     Writing in dissent, Judge Ronald Gould argued that the majority had focused exclusively on the pretrial issues and left the “reality” of the petition undiscovered.
     “There is no applicable judicial precedent supporting the majority’s proposition that the focus of a coordination petition mentioning pretrial matters in large part may override the reality of a plaintiff’s proposal to try claims jointly when the petition seeks relief that would require joint trial,” he wrote.
     “The majority apparently would require an explicit request for a joint trial, whereas I conclude that the substance of what was done is controlling,” Gould added. “Recourse to the general principle that doubts on removal should be resolved by favoring the plaintiffs’ forum choice simply does not answer that this case fits CAFA removal like a glove under a reasonable assessment of what is a proposal for joint trial.”

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