Separate Product Liability Drug Cases Deemed Removable “Mass Action” By Ninth Circuit

In a series of cases involving alleged injuries related to the ingestion of propoxyphene, a number of cases were filed against the pharmaceutical companies who held the rights to drugs containing this ingredient before these drugs were removed from the market.  In California, more than forty actions had been filed in state court making similar claims, and a group of attorneys responsible for filing many of these actions filed petitions with the California Judicial Council to establish a coordinated proceeding for all California actions.  The defendant drug companies then removed the cases on the grounds that these petitions for coordination made the case removable as a CAFA mass action.  The district court remanded the cases and on appeal, a panel of the Ninth Circuit agreed, but last Tuesday, the Ninth Circuit en banc reversed the remand orders and held that removal was appropriate.

The court emphasized that the plaintiffs voluntarily asked for coordination of the cases and that their efforts consisted of proposing a joint trial.  Their petitions for coordination sought coordination for “all purposes” and the petitions specifically referenced the danger of inconsistent judgments and conflicting determinations of liability.  The ruling brings the Ninth Circuit in line with the Seventh and Eighth Circuits, which have found similar cases removable as “mass actions” under CAFA where a group of plaintiffs’ actions to try cases jointly creates federal jurisdiction.