Darvocet Plaintiffs' Hail Mary Batted Away

by Dechert LLP

We’ve posted before about MDLs – and the Darvocet MDL in particular – being the new “heavyweight” division for the one-two punch of product identification (can’t sue non-manufacturers) and generic preemption (can't sue generic manufacturers) to dispose of meritless claims involving generic drugs on a large scale.

At the risk of mixing our sports metaphors, we can now report that the Darvocet plaintiffs’ attempted Hail Mary pass (if we were sticking to boxing, we might have gone with a head butt) to state court has been batted down.

After concluding that a positive product identification is required by the settled law of just about every state in the union, the MDL judge in Darvocet rejected plaintiffs’ attempt to tilt at that windmill through certification of the issue to no less than six state supreme courts simultaneously:  those being Arizona, Kentucky, Maryland, Oklahoma, South Carolina, and West Virginia.  We note that the original Darvocet order (we’ll call it “Darvocet I” to avoid confusion) involved far more than just those six states.  Darvocet I at 5 (citing precedent from Georgia, Indiana, Louisiana, Minnesota, Mississippi, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Texas, in addition to the six states).

We assume that plaintiffs cherry-picked those courts that they thought would be best for them (we’d do the same; lawyers are supposed to press such procedural edges).  We doubt it’s an availability issue, because the one state that we’re instantly familiar with – Pennsylvania – also has a certification procedure.  But why these six particular states, we don’t know.  None of the six has ever adopted market share liability in any context (the Oklahoma Supreme Court expressly rejected it in a DES case), so product identification is not in any sense an open question in any of them.

We guess that’s why the MDL court ruled the way it did.  Certification of an issue that’s not really open to serious question – as the court had already found the product identification requirement to be, Darvocet I at 9 (“many states have expressly rejected”), 12 (“overwhelming majority of courts” reject plaintiff’s position) – is a waste of time and effort.  On the other hand, where a court may be inclined to allow a novel theory of liability in a case that would otherwise be over without it, certification makes a lot of sense.  That’s why, as we’ve mentioned before, the same issue is currently teed up in the Alabama Supreme Court in a case we can’t say much about due to Dechert’s involvement.

Anyway, the latest Darvocet order doesn’t take away plaintiffs’ ordinary appeal rights in the federal system – denying only an extraordinary form of federal-to-state review.  What it does mean is that, having filed in federal court, plaintiffs cannot avoid the consequences of diversity jurisdiction, including the Erie principle (expressly referenced in Darvocet I, at 13 ) that federal courts are not supposed to predict radical changes in state law.  Plaintiffs can, of course, file a new certification motion in the Court of Appeals.  As to that, we can only point out that the Sixth Circuit had no trouble predicting on its own that Kentucky would follow established law.  Smith v. Wyeth, 657 F.3d 420, 423 (6th Cir. 2011).

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Dechert LLP

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