Court rules that California propoxyphene lawsuits should be heard in federal court

by Eric Pearson

Propoxyphene is a powerful prescription painkiller that was used in the United States to treat mild to moderate pain until November 2010, when drugs containing propoxyphene were taken off the market because of safety concerns. Propoxyphene was withdrawn from the market because it has been linked to a potentially deadly heart-rhythm abnormality even when taken at recommended doses, according to the FDA.

Dozens of lawsuits regarding propoxyphene pain relievers were filed. In 2012, a group of attorneys responsible for many of the propoxyphene actions that were pending in California state courts against Teva, Xanodyne, and other defendants filed petitions asking the California Judicial Council seeking to establish a coordinated proceeding for all California propoxyphene actions under section 404 of the California Code of Civil Procedure. Xanodyne acquired the rights to Darvocet and Darvon in 2007. Teva held the rights to the generic form of Darvocet and Darvon. In response to the petitions for coordination, Teva and Xanodyne removed the cases to federal district court under CAFA’s “mass action” provision.

CAFA defines a mass action, in part, as a 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 California plaintiffs argued that their requests for coordination were not proposals for the cases “to be tried jointly” under CAFA. The federal district court agreed and held that it lacked jurisdiction. A three-judge panel of the Ninth Circuit affirmed. Romo v. Teva Pharm. USA, Inc., 731 F.3d 918 (9th Cir.2013), cert. denied, 134 S.Ct. 2872, (2014). However, a majority of nonrecused judges voted to rehear the case en banc.

The en banc Ninth Circuit has now reversed the prior panel. The full court of appeals has held that the plaintiffs’ petitions, seeking coordination of the California propoxyphene actions, were in legal effect proposals for those actions to be tried jointly. Corber v. Xanodyne Pharm., Inc., No. 13-56306, (9th Cir. Nov. 18, 2014). Thus, the cases are a “mass action” subject to federal jurisdiction under CAFA.

First, the court of appeals noted that the plaintiffs voluntarily asked for coordination “for all purposes,” which “must include the purposes of trial.” Id. Reading the petitions literally, more than 100 plaintiffs were seeking a joint trial. Second, the specific reasons given for coordination included matters such as the danger of inconsistent judgments and conflicting determinations of liability. The en banc Ninth Circuit thus reversed the district court’s order remanding the cases to state court. The cases will remain in federal court as a “mass action.”

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When the drug companies fail to properly warn patients and doctors about the risks of serious complications from their prescription drugs, they should be held responsible for the resulting damage, pain and injury. The attorneys at Heygood, Orr & Pearson have fought for years to hold drug and medical device companies who engage in reckless conduct responsible for their actions.

The prescription industry fights back hard. To successfully bring a claim against big and well-funded drug companies, you will need an experienced, educated attorney on your side. You will also need a law firm with the financial resources to take the case to trial. Heygood, Orr & Pearson has the experience, expertise and resources to take on any pharmaceutical liability case. We have collected more than $200 million for our clients in lawsuits relating to defective pharmaceutical products in just the last few years. Our attorneys have already pursued claims involving a variety of products such as the fentanyl pain patch, drugs such as Yasmin, Actos, Avandia, and Pradaxa, and devises such as hip and knee replacements. We have tried hundreds of cases to verdict and have settled hundreds more.

Heygood, Orr & Pearson are also very comfortable and experienced with the complex and challenging world of class actions and “multidistrict litigation.” As one example, Michael Heygood and other lawyers at Heygood, Orr & Pearson were designated “Lead Plaintiffs’ Counsel” last year by the federal court that presided over numerous wrongful death lawsuits regarding the Watson fentanyl patch that were consolidated for pretrial purposes in MDL No. 2372 — In re: Watson Fentanyl Patch Products Liability Litigation, before the United States District Court for the Northern District of Illinois.

If you have been injured or have lost a loved one because of a defective or dangerous prescription drug or medical device, you deserve proper compensation. To receive a free consultation about your case and learn more about your legal rights, contact the lawyers at Heygood, Orr & Pearson by calling toll-free at 1-877-446-9001, or by filling out our free case evaluation form located on this website.