On June 27, a panel of the Sixth Circuit handed down its decision in the consolidated appeals from the dismissal of plaintiffs' claims for personal injury in the Darvocet, Darvon and Propoxyphene MDL. The panel largely affirmed District Judge Danny Reeves' rulings dismissing plaintiffs' claims. 

On appeal, CCL Chief Litigation Counsel Louis Bograd had argued that plaintiffs' design defect and negligent marketing claims survived preemption under the reasoning in fn. 4 of the Supreme Court's decision in Mutual Pharmaceutical Co. v. Bartlett, which recognized that state law claims that paralleled federal misbranding provisions might not be preempted. Without reaching the merits of that argument, the panel held that it was inapplicable on the facts in these cases, because the FDA had approved continued marketing of propoxyphene drugs, over the contrary recommendation of its advisory committee, in 2009. The 6th Circuit panel also concluded that the MDL plaintiffs had not adequately pled claims based on the alleged failure by generic manufacturers to update their warning labels to match changes to the Darvon label ordered by the FDA in 2009 and that it was likely that courts in 22 states would not recognize claims for misrepresentation against the manufacturers of Darvon and Darvocet brought by persons injured by the generic versions of those products. 

Plaintiffs are considering their options in response to this ruling.