Louisiana appeals court upholds remand of widow’s fentanyl lawsuit to state court

by Heygood Orr and Pearson

A Louisiana appeals court has rejected a motion filed by Watson Pharmaceutical to keep a fentanyl wrongful death lawsuit filed against the company in federal court. Watson had attempted to overturn a judge’s order that had remanded the fentanyl lawsuit to Louisiana state court, but its arguments were not upheld by judges with the Fifth Circuit Court of Appeals.

Hundreds of patients have filed fentanyl lawsuits after suffering an overdose caused by a defective pain patch or from the improper prescription of this deadly drug. Because the fentanyl patch is about 100 times more potent than morphine, doctors who prescribe the generic fentanyl pain patch—or brand name version of the drug product called Duragesic —must use extreme caution in order to prevent overdose or death. Similar caution must be used when prescribing other forms of the drug such as Actiq (lozenge), Fentora (tablet), Subsys (sublingual spray) or Lazanda (nasal spray).

The lawsuit against Watson involved a fentanyl patient named Joseph Fontenot, who died in 2009 at a Louisiana hospital of a fentanyl overdose. Fontenot’s widow, Susan, filed a medical malpractice and product liability lawsuit against the hospital and Watson, alleging that the patch was defectively manufactured and improperly prescribed.

The Louisiana appeals panel voted unanimously that a federal judge’s order to remand the case back to state court was outside the scope of appellate review, preventing it from ruling on Watson’s motion. The Louisiana court’s ruling upheld the conclusions of five other circuit courts, which had also ruled in similar cases that they were beyond the scope of appellate review under federal law.