(CN) - The full 9th Circuit will consider whether dozens of lawsuits over the pain drug propoxyphene should face a joint trial and federal jurisdiction, the 9th Circuit said Monday.
Overdose concerns led the Food and Drug Administration to removed the opoid from shelves in 2010, prompting more than 40 lawsuits in California's state courts concerning Darvocet, Darvon and other products in which it could be found. In late 2012 a group of attorneys asked the California Judicial Council for a "coordinated proceeding" of all of the state actions.
Considering that request as a move to try the cases jointly, Teva Pharmaceuticals, which owned the rights to the generic versions of the drugs, removed the case to federal court under the Class Action Fairness Act (CAFA). U.S. District Judge Philip Gutierrez disagreed in Los Angeles and sent the case back to state court, setting up a question of first impression for the 9th Circuit.
A divided three-judge panel of the federal appeals court affirmed
Guiterrez's remand to state court in September 2013, but the court said Monday that the ruling will not stand and may no longer be cited.
In a brief new order, Chief Judge Alex Kozinski ordered that the case be reheard before a 11-judge, en banc panel.
"Upon the vote of a majority of nonrecused active judges, it is ordered that these cases be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3," Kozinski wrote.