Circuit Reconsiders Darvocet Class Action

Teva Pharmaceuticals got a second shot at convincing a federal appeals court to move 40 California cases from state court to federal court in a dispute alleging injuries from an ingredient in Darvocet and Darvon pain killers.

The 9th U.S. Circuit Court of Appeals issued an order Monday stating a majority of the court’s judges agreed to rehear the case in an 11-judge en banc panel.

The order throws into doubt the 2-1 panel opinion in September that rejected Teva’s motion to consolidate the cases under the federal Class Action Fairness Act of 2005.

The cases were brought in response to injuries sustained from the use of propoxyphene in Darvocet and Darvon.  Propoxyphene is a pain relieved 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 holds rights to the generic formulary of Darvocet and Darvon and is accused of creation and sale of the generic propoxyphone products.

There are at least 26 federal suits involving the drugs and more than 40 in California state court.  It is considered a boon to plaintiffs for the cases to remain in state court.

In the three-judge panel decision, 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 coordinated proceeding for all state actions involving the two drugs.

“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 wrote that Teva met the requirements to move the case to federal court, in part, to avoid inconsistent judgments.

A majority of the circuit judges agreed to reconsider that point and ordered a rehearing.

Judge Margarent McKeown did not participate in the vote.

It requires a majority, 14 of the 26 voting judges, to grant en banc review.

Case:  Romo v. Teva Pharmaceuticals, No. 13-56310


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