A federal appeals court sent back to state court more than 40 California cases alleging injuries from an ingredient in Darvocet and Darvon pain medications, defeating Teva Pharmaceuticals’ effort to move the cases to federal court.
The 9th U.S. Circuit Court of Appeals held in a 2-1 vote Tuesday that the plaintiff request for state coordination of the cases did not go so far as to ask for a joint trial and thus did not come under the federal Class Action Fairness Act of 2005. Under CAFA, defendants may seek to have a state case removed to federal court if they are mass actions of more than 100 people who propose a joint trial.
Judge Johnny Rawlinson said the plaintiffs in the case did not go so far as to seek a joint trial, they had only asked that the California Judicial Council create a coordinate proceeding for all state actions involving the Darvocet and Darvon cases.
The cases arise from the injuries sustained in the use of propoxyphene, in Darvocet and Darvon. Propoxyphene is a pain reliever used in the U.S. between 1957 and 2010, when it was taken off the market by the Food and Drug Administration over safety concerns.
Teva Pharmaceuticals held rights to the generic formulary of Darvocet and Darvon and is accused of creation and sale of the generic propoxyphene products.
There are currently at least 26 federal suits involving the drugs and more than 40 in California state court.
“Plaintiff’s petition for coordination stopped far short of proposing a joint trial,” Rawlinson wrote. And the plaintiffs should be in control of the litigation forum, she said.
In dissent, Judge Ronald Gould said Teva met the requirements to move the case to federal court, in part, to avoid inconsistent judgments. “The majority apparently would require an explicitly request for a joint trial, whereas I conclude that the substance of what was done is controlling,” he said. The case fits CAFA removal requirements “like a glove,” Gould said.
The 9th Circuit majority decision will allow those cases to remain in state court, considered a boon to plaintiffs.
Case: Romo v. Teva Pharmaceuticals, No. 13-56310