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7th Circuit Says Motion To Consolidate Depakote Suits Triggers CAFA Jurisdiction

CHICAGO - Resolving a split between two district courts, the Seventh Circuit U.S. Court of Appeals on Oct. 16 ruled that plaintiffs' motions to consolidate 10 Illinois state court cases involving Abbott Laboratories' anti-seizure drug Depakote were sufficient to create a mass action that makes them subject to removal to federal court under the Class Action Fairness Act (CAFA) (In Re: Abbott Laboratories, Inc., Nos. 12-8020, 12-8021, 12-8022, 12-8023, 12-8024, 12-8025 and 12-8026; In Re: Abbott Laboratories, Inc., No. 12-8027, 7th Cir.).


Between August 2010 and November 2011, several hundred plaintiffs filed 10 lawsuits in the St. Clair County Circuit Court or the Cook County Circuit Court. The plaintiffs alleged personal injuries caused by Depakote, an anti-seizure drug made by Abbott Laboratories, that the plaintiffs claim causes birth defects when taken by pregnant patients.

In December 2011, the plaintiffs asked the Illinois Supreme Court to consolidate their cases and transfer them to the St. Clair Circuit Court. Abbott opposes the motion, on which the state high court has not ruled.

Removal To Federal Court

Abbott removed the cases to two federal courts: the U.S. District Court for the Northern District of Illinois and the Southern District of Illinois. The plaintiffs moved to remand.

In April, Judge G. Patrick Murphy of the Southern District granted remand. Judge John W. Darrah of the Northern District denied remand.

The plaintiffs and Abbott cross-appealed the District Court remand orders to the Seventh Circuit. Abbott argued that the motion to consolidate the cases in one state court constitutes a proposal to try the cases jointly, thus triggering the "mass action" provision of CAFA.

Joint Trial Sought

The panel held that the motion to consolidate did propose a joint trial and that removal to federal court under CAFA was proper.

The plaintiffs argued that they are not proposing a joint trial because they did not address how trials would be conducted. Instead, they argued that the cases be coordinated through trial.

The panel said that although the plaintiffs never specifically asked for a joint trial, a proposal for one can be implied. "In short, a joint trial can take different forms as long as the plaintiffs' claims are being demonstrated jointly," the panel held.

"Plaintiffs may not have explicitly asked that their claims be tried jointly, but the language in their motion comes very close," the panel continued, noting that the plaintiffs asked for consolidation "through trial" and not solely for pretrial proceedings.

'Difficult To See'

"We agree with Abbott that it is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases," the panel said. "In either situation, plaintiffs' claims would be tried jointly."

Citing case law, the panel said: "Although plaintiffs assert that the transferee court will decide how their cases proceed to trial, '[i]t does not matter whether a trial covering 100 or more plaintiffs actually ensues; the statutory question is whether one has been proposed.'"

The panel rejected the plaintiffs' arguments that removal was improper because they were filed in the trial courts and not in the Supreme Court, where their motion to consolidate was filed. The panel said CAFA does not say where a proposal for a joint trial must be made, "but a reasonable conclusion is that it must be made to a court that can effect the proposed relief."

"In all likelihood, the Supreme Court would transfer these actions back to one of the judicial circuits in which the suits are currently pending," the panel said. "As a result, plaintiffs' motion to consolidate was sufficient to create a mass action."

1 Reversed, 1 Affirmed

The panel reversed Judge Murphy's remand order and affirmed Judge Darrah's order.

Circuit Judge Michael S. Tinder wrote the opinion. Other panel members were Circuit Judges Diane P. Wood and John D. Tinder.

Abbott is represented by James F. Hurst and Kathleen B. Barry of Winston & Strawn in Chicago and Paul F. Strain and Stephen E. Marshall of Venable in Baltimore.

The plaintiffs are represented by Michael W. Rathsack of Chicago; Ralph D. McBride of Bracewell & Guiliani in Houston; Jeffrey D. Meyer of the Meyer Law Firm in Houston; Tommy Fibich of Fibich, Hampton & Leebron in Houston; John T. Boundas of Williams Kherkher Hart Boundas in Houston; Allen N. Schwartz of Kralovec, Jambois & Schwartz in Chicago; Robert L. Salim of Natchitoches, La.; William M. Audet of Audet & Partners in San Francisco; Lloyd M. Cueto of the Law Office of Lloyd M. Cueto in Belleville, Ill; and Christopher Cueto of the Law Office of Christopher Cueto in Belleville.

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