California lawsuit against Teva over Darvon and Darvocet painkiller drug will return to state court

by Michael Heygood

Propoxyphene is a pain reliever that was used in the United States to treat mild to moderate pain until November 2010, when drugs such as Darvon and Darvocet that contained propoxyphene were taken off the market because of the FDA’s safety concerns. The FDA action came nearly six years after the drug was banned in the U.K., and nearly a year and a half after the European drug agency banned it. The public interest group Public Citizen had petitioned the FDA to ban the drug back in 1978 and again in 2006.

Following the 2006 petition, the FDA took the matter to an expert advisory committee, which in July 2009 voted to ban the drug. However, the FDA overruled the panel, and instead asked Darvon/Darvocet maker Xanodyne Pharmaceuticals Inc. to conduct studies of the drug’s effects on the heart. The results of those studies led to the FDA finally banning the drug. “The drug puts patients at risk of abnormal or even fatal heart rhythm abnormalities,” John Jenkins, MD, director of the FDA’s office of new drugs at the Center for Drug Evaluation and Research, said when the drug was finally banned.

Teva Pharmaceuticals held the rights to generic versions of the propoxyphene products Darvocet and Darvon. To date, more than forty actions have been filed in California state courts alleging injuries related to the ingestion of propoxyphene, an ingredient found in the Darvocet and Darvon pain medications, as well as in their generic brand counterparts. There are additional propoxyphene cases pending in multidistrict litigation in the Eastern District of Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F.Supp.2d 1379 (E.D.Ky.2011

Last October, a group of attorneys responsible for many of the propoxyphene actions in California state courts filed a petition asking the California Judicial Council to establish a coordinated proceeding for all California propoxyphene actions pursuant to a provision of the California Code of Civil Procedure. Soon after the request was filed, Teva removed the cases to federal court under the “mass action” provision of the Class Action Fairness Act (CAFA). CAFA provides federal courts with jurisdiction over “mass actions” if the actions meet all of the statutory requirements. CAFA defines a mass action as: “any civil action … in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”

The federal district court held that CAFA did not apply, and ordered the case back to state court. Teva appealed and a split panel of the Ninth Circuit Court of Appeals has now affirmed the district court’s decision.

The question raised by the appeal was whether the Plaintiffs’ petition for coordination of the state court cases constituted a proposal for the cases to be tried jointly under CAFA. The court of appeals agreed with the Plaintiffs and the district court that the petition for coordination was not a proposal to try the cases jointly.

Although the relevant provision of the California Code potentially allows for coordination of “all of the actions for all purposes,” the plaintiffs’ petition for coordination stopped far short of proposing a joint trial. Instead, the petition sought coordination of the cases limited to pretrial proceedings, i.e., discovery matters. The Ninth Circuit thus distinguished the case from In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir.2012) (holding that federal “mass action” jurisdiction was proper when plaintiffs’ requested “consolidation of the cases through trial and not solely for pretrial proceedings”). Because the court of appeals concluded that the petition for coordination was not a proposal to try the cases jointly, it affirmed the district court’s order granting the motion to remand the cases back to state court.

Heygood, Orr & Pearson fighting the pain pill industry

Even when used as prescribed, some prescription painkillers can cause serious and potentially deadly complications. Because painkillers can lower a patient’s breathing rate, opioid painkiller users may be at risk of developing repository depression. Some of these patients may fall into respiratory arrest, which can be fatal if not treated quickly

More people die from prescription drug overdoses each year than from heroin and cocaine combined. A significant part of the problem—that is not being adequately addressed—is the alarming number of deaths due to overdose on medications that were prescribed for the deceased by their doctors.

Patients who die from overdoses of drugs which have been prescribed for them most often overdose on prescription opioid painkillers. Some of the most commonly used prescription painkillers include:

  • Vicodin (sold generically under the name hydrocodone)
  • OxyContin (sold generically as oxycodone)
  • Dilaudid (sold generically under the name Hydromorphone)
  • Methadone
  • Fentanyl pain patch (sold generically under the brand names Sandoz, Watson and Mylan)

The attorneys at Heygood, Orr & Pearson have spent years holding drug companies and negligent prescribing doctors responsible for the injuries and deaths caused by their reckless conduct. When it comes to fighting the makers of prescription painkillers and pursuing the negligent doctors that hand them out, very few lawyers can claim anything close to the considerable experience or success of Heygood, Orr & Pearson.

Heygood, Orr & Pearson is among the nation’s leading law firms in handling cases involving potent opioids, and our law firm has the experience to prosecute medical malpractice lawsuits involving a wide array of serious opioid painkillers. To receive a free legal consultation and find out if you are eligible to file a case, please call our toll-free hotline at 1-877-446-9001, or by filling out our free case evaluation form located on this page.