The Philadelphia Inquirer reports that a Ninth Circuit opinion "is the latest in a debate about whether multiple lawsuits alleging harm to patients from the same pharmaceutical product should be heard in state courts or federal courts."
According to the opinion in Romo v. Teva Pharmaceuticals, at issue was whether it was appropriate to remove mass torts to federal court under the Class Action Fairness Act's provisions for federal removal of "mass actions" when the claims of a 100 or more plaintiffs involve common questions of law or fact that the plaintiffs propose to try jointly.
The district court remanded to state court involving plaintiffs who say they were injured by the ingestion of propoxyphene, "an ingredient found in the Darvocet and Darvon pain medications, as well as in the generic brand counterparts," the majority opinion said. The Ninth Circuit majority agreed with the district court the plaintiffs' petition for coordination wasn't a proposal to try the cases jointly, only for coordination of discovery and other pretrial matters.
In contrast on the same issue of first impression, the Seventh Circuit in In re Abbott Laboratories involved plaintiffs seeking consolidation through trial, the Ninth Circuit majority said.
The majority also said in a footnote that a three-judge panel doesn't have the authority to revisit circuit precedent decided in 2009 case of Tanoh v. Dow Chemical Corp. that there is a presumption against removal to federal court, that any uncertainty should be construed in favor of remand, and that the proposal to try claims jointly must come from the plaintiffs. The Chamber of Commerce and others argued as amici, the majority's opinion said, that "we should revisit Tanoh and that it has lost its precedential value, urging that plaintiffs should not be able to structure their complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb class action and mass action abuses that have occurred in state courts," the footnote in the opinion said. But the majority also said it approves of Tanoh and that other circuits, including the Seventh Circuit in Abbott, have cited it.
In contrast, the dissent said that the majority "creates a circuit split, for practical purposes, with the Seventh Circuit's decison in Abbott."
"If plaintiffs are masters of their complaints and can plead in a way to avoid federal jurisdiction, they remain free to 'game' the system to some degree, including by joining less than one hundred plaintiffs in many suits in state court, so long as those cases are separate," the dissent said. "... That leads me to recognize that the issue here, stated more precisely, is whether when plaintiffs seek to coordinate under California law many state actions, and urge the state court that coordination is necessary to avoid inconsistent judgments, that is a proposal for joint trial within the meaning of CAFA."
The full Ninth Circuit opinion is here: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/24/1356310_opn&di...
Lawyer and Legal Journalist
