Neither side wants Lilly case in District Court

HUNTINGTON – West Virginia Attorney General Darrell McGraw's lawsuit against drug maker Eli Lilly has landed at U. S. District Court in Huntington, but neither side wants it to stay there.

Lilly would roll West Virginia's claim into a multi-jurisdictional trial with hundreds of cases in federal court in New York, arguing that all the claims are the same.

McGraw would send it back where he filed it, at the Mason County courthouse in Point Pleasant. He argues that West Virginia's claim is completely different from those in the New York court.

McGraw sued Lilly in February, claiming that sales of an antipsychotic drug, Zyprexa, violated state consumer protection law and the state Medicaid Fraud Act.

The complaint sought restitution for state expenses and creation of a fund for consumers who will develop diabetes and other diseases.

McGraw alleged that Lilly promoted Zyprexa to physicians for unapproved "off label" use in treating anxiety, mood swings, dementia and attention deficit.

Lilly in April removed the suit to federal court, arguing that it raised issues of federal law or that federal law pre-empted the suit.

Lilly also moved to stay the proceedings in Huntington, pending transfer to a Multidistrict Litigation Panel in the Eastern District of New York.

U. S. District Jack Weinstein has set trial Oct. 2 on hundreds of claims.

Private attorney Troy Giatras of Charleston, acting as special assistant to McGraw, moved April 28 to remand the suit to Mason County.

He challenged federal jurisdiction as an infringement on state sovereignty.

He wrote that the proceedings in New York were personal injury cases, while West Virginia's case involved violations of state statutes and common law.

He wrote that in New York proof of causation and damages would focus on individuals, while in the West Virginia case those issues would depend on statistical modeling.

Giatras also opposed Lilly's motion to stay the proceedings, arguing that the court should resolve jurisdiction before doing anything else.

Lilly attorney Raymond Franks II of Charleston, in an April 28 answer to McGraw's complaint, denied that Zyprexa increased the risk of diabetes.

Franks wrote that doctors who prescribed it were "sophisticated purchasers, fully knowledgeable and informed with respects to the risk and benefits of Zyprexa."

He wrote that patients were fully informed of the risks and gave informed consent.

He wrote that federal law pre-empted the claim because Lilly tested, manufactured, marketed and sold Zyprexa in a manner that the Food and Drug Administration approved.

U. S. District Judge Robert Chambers of Huntington denied Lilly's motion to stay the proceedings in a May 11 order.

He wrote that Lilly would suffer no hardship or inequity if he proceeded to address the state's motion to remand the suit to Mason County.

He wrote that West Virginia would suffer some prejudice from a delay in resolving jurisdiction.