John O'Brien Dec. 10, 2012, 5:00am
CLARKSBURG – A federal judge has remanded the lawsuit of man who blames the prescription drug Actos for his bladder cancer, ruling an in-state defendant was not added fraudulently.
Takeda Pharmaceuticals had sought to have the case heard in federal court, but U.S. District Judge Irene Keeley ruled at a hearing Nov. 20 that it should be sent back to Harrison County Circuit Court.
Also named as a defendant is Patterson’s Drug Store, the pharmacy used by Plaintiff Richard Myers.
Myers filed his lawsuit in Harrison County Circuit Court on Aug. 18, but Takeda removed it to federal court a month later. On Sept. 28, Myers’ counsel, Manchin Injury Law Group, filed its motion to remand.
“(T)he defendants removed the action claiming fraudulent joinder, though they fall woefully short of the pertinent standard,” the motion said.
Takeda claimed Patterson’s Drug Store was fraudulently added as a defendant in an effort to destroy diversity jurisdiction. It said state law and the learned intermediary doctrine barred liability on the part of pharmacies that pass along manufacturer-provided medication.
“Here, Plaintiff attempts to hinge liability on Patterson’s on the allegation that it failed to warn him about a risk of bladder cancer allegedly associated with Actors,” Takeda’s attorneys wrote Oct. 12.
“Contrary to Plaintiff’s representations, the West Virginia courts have barred pharmacy liability based on this kind of failure-to-warn theory…”
Myers’ attorneys claim federal courts in the state have made pharmacy liability a decision for the finder of fact.
Pharmacies are immune from claims over the quality of certain drugs they sell but can still be liable for a failure to warn, Myers’ attorneys argued. They made nine failure-to-warn claims against Patterson’s Drug Store in the complaint.
“Patterson’s is not included in Plaintiff’s allegations regarding the design and manufacturing of Actos,” the remand motion says.
“Defendants’ removal is based entirely on the argument that a manufacturer is responsible for the ‘quality’ of a drug… But, Defendants ignore the many theories unrelated to Actos’ quality, and omit that Plaintiff has not alleged that Patterson’s is responsible for the drug’s quality.”
Patterson’s attorneys wrote that it was a defendant in the case because all the other defendants were out-of-state entities, “and Plaintiff needed an in-state entity to attempt to avoid diversity jurisdiction.”
It called the lawsuit “a typical case of forum shopping and fraudulent joinder.”