Seventh Circuit Upholds Removal of Two Depakote Class Actions to Federal Court – In re Abbott Laboratories

By October 17, 2012 July 18th, 2019 Dangerous Drugs

Psychiatric medications are used much less often than drugs like antibiotics—but because they are designed to affect the brain, their side effects can be very dangerous. The drug Depakote (semisodium valproate), approved for treating depression, epilepsy and migraines, has some serious side effects including severe birth defects, potential liver damage, hallucinations and unusual dreams. That’s why I was interested, as a dangerous drug lawyer, to read an opinion from the Seventh U.S. Circuit Court of Appeals about the consolidation of two Depakote injury lawsuits. In In re Abbott Laboratories, the question was whether a motion to consolidate related state-court cases constitutes a proposal to try them jointly. If so, it would trigger the Class Action Fairness Act, which would mean a lot of changes to the parties’ rights and responsibilities. The court ultimately ruled that consolidation does mean a joint trial.
The case involves ten lawsuits in Illinois state court, involving hundreds of plaintiffs, alleging injuries caused by Depakote. The cases were in three counties, but the plaintiffs moved in the Illinois Supreme Court to consolidate them in St. Clair County because the cases presented common questions. The high court never ruled on this motion. However, defendant Abbott, which opposed consolidation, removed all of the cases to federal courts for the Northern and Southern Districts of Illinois, arguing that the consolidation motion made the cases a “mass action” under CAFA. Plaintiffs moved to remand. The Southern District court granted the motion to remand, finding the motion to consolidate did not propose a joint trial. The Northern District came to the opposite conclusion.
Each party petitioned for interlocutory review of the decisions they lost, requiring the Seventh Circuit to decide whether the motion was a mass action under CAFA. The plaintiffs argued that the motion to consolidate did not address how trials would be conducted other than location; they merely moved for the cases to be coordinated through trial. The Seventh Circuit disagreed, saying a proposal for a joint trial can be implicit. Unlike in Anderson v. Bayer, a Seventh Circuit case from 2010 that the Southern District found to be controlling, the plaintiffs had moved to consolidate the cases. Other cases have found that a joint trial proposal can be implicit, and the Seventh noted that the language of the instant motion came very close to expressly requesting consolidation. Because they requested consolidation “through trial” and cited the risk of “inconsistent adjudication” as a reason, the Seventh said, the proposal was sufficient to meet the requirements of a mass action.
As a pharmaceutical liability attorney, I understand why this seemingly small issue is being fought so hard through two sets of courts. Removal to federal court is perceived as a disadvantage for plaintiffs, who are usually individuals alleging serious injuries—in this case from taking a prescription drug they thought would help them. In fact, this may have been the logic behind the enactment of CAFA, a 2005 law that was criticized for erecting barriers to recovery for people who are already at a disadvantage when they sue large corporations. Though it’s not clear that federal court really is more friendly to defendants, as a defective drug lawyer, I believe disputes like these are themselves bad for defendants because they prolong the case and add expense unnecessarily.


If you or someone you love suffered an injury, illness or death after taking a medication you trusted, you should talk to Carey, Danis & Lowe about your legal options. Based in southern Illinois and St. Louis, we represent clients across the United States. For a free consultation, send us an email or call 1-877-678-3400 today.
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