On May 7, CCL’s Chief Litigation Counsel Louis Bograd appeared before a panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati to represent the plaintiffs in 68 consolidated appeals arising out of the Darvon MDL. Plaintiffs had sued the manufacturers of both the brand-name drugs Darvon and Darvocet and the generic equivalent, propoxyphene, for severe cardiac injuries caused by their use of the drug, asserting claims for both products liability and tortious misrepresentation. Judge Danny C. Reeves in the Eastern District of Kentucky had dismissed all of the MDL plaintiffs' claims on various grounds, including federal preemption.

Bograd argued to a panel that included Circuit Judges John Rogers, Jeffrey Sutton, and Richard Suhrheinrich that those rulings were in error and should be reversed. Plaintiffs had pled products liability claims against the generic manufacturers that paralleled the federal misbranding statute and thus were not preempted under the reasoning of the Supreme Court decisions in Pliva, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett. Plaintiffs should likewise have been permitted to proceed against the brand manufacturers under traditional state tort law misrepresentation causes of action for misrepresenting the safety and efficacy of propoxyphene. A decision is expected by this fall.