There is a perception among pharmaceutical companies and other corporate defendants that federal courts are friendlier to their interests than state courts. When they are being sued over a dangerous drug, these defendants prefer federal courts because they think federal juries are less likely to award large amounts of money. Federal court can also create hardships for plaintiffs, because there are fewer of them and plaintiffs may need to travel farther to reach them. This was the thinking behind the 2005 Class Action Fairness Act, which required federal jurisdiction over most class actions. That law underlay the dispute in Romo et al. v. Teva Pharmaceutical USA, a decision of the Ninth U.S. Circuit Court of Appeals keeping a group of Darvon/Darvocet cases in state court.
The active ingredient in the drugs is propoxyphene, which was taken off the market in 2010 after 53 years after an FDA study found it affected the heart even at normal doses. As a result, the FDA said, millions of patients could be at risk of fatal heart abnormalities. Because propoxyphene is an opioid, it also has abuse potential. More than 40 Darvon and Darvocet cases were pending in California courts when the defective drug lawyers for the plaintiffs requested a consolidated proceeding. Teva, which made generic proxyphene, removed the cases to federal court under the CAFA’s “mass action” provision, which says cases can go to federal court if they involve 100 or more people whose claims “are proposed to be tried jointly.” The district court sent the case back to state court, saying petitioning for coordination is not a proposal to try the cases jointly. Teva appealed.
A divided Ninth Circuit upheld the ruling. The only appeals court to consider the issue previously was the Seventh Circuit, in 2012’s In re Abbott Laboratories. It agreed with the district court that this case is distinguishable from Abbott, saying the consolidation petition concerned pretrial matters and Abbott requested consolidation “through trial.” That’s important, the Ninth said, because precedent says plaintiffs are “masters of their complaint”; they may choose their own forum. The memorandum submitted along with the request for coordination doesn’t ask for a joint trial, the court noted; its focus is on pretrial proceedings. Judge Gould dissented, saying the majority misinterpreted CAFA and the pretrial-specific nature of the coordination petition didn’t adequately distinguish this case from Abbott.
This case attracted amicus briefs from conservative think tanks, which shows how afraid drug companies and their business-lobby allies are of pharmaceutical liability lawsuits. It’s not at all clear that federal courts are more friendly to defendants than state courts. All multi-district litigation cases are in federal court, and they are decided for plaintiffs when the facts are on plaintiffs’ sides. For example, two dangerous drugs—Vioxx and Fen-Phen—had their litigation largely resolved through MDLs. But moving cases from court to court takes time and money, which allows better-funded drug companies to make life harder for plaintiffs hurt by dangerous drugs. I do my best to protect my clients from this kind of bullying and keep their cases on track for a favorable verdict or settlement.
If you were hurt by a prescription or over-the-counter drug that was supposed to help, don’t wait to call Carey, Danis & Lowe to discuss your rights and your options. You can reach us through our website or call 1-877-678-3400 today.
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