BLUEFIELD – A drug manufacturer is alleging a case in which a deceased woman's husband claims she died due to a defective fentanyl patch should remain in federal court if it is not dismissed.

ALZA Corporation and Sandoz, makers of the allegedly defective fentanyl patch, say a complaint Jackie Deskins filed in McDowell Circuit Court should be removed to federal court, even though federal court previously dismissed the same case.

"The action implicates the growing concern of federal courts over plaintiffs' attempts to defeat diversity jurisdiction by fraudulently joining non-diverse pharmacy defendants in actions where the real targets -– the diverse pharmaceutical/manufacturer defendants –- are entitled to a federal forum," the suit states.

Jackie Deskins, who filed suit against a West Virginia pharmacy in addition to the drug manufacturers, contends the case belongs in circuit court because the federal court determined on Jan. 5 it did not have subject matter jurisdiction over the case based on lack of diversity of citizenship.

According to court records, Jackie Deskins originally filed suit against Citizens Drug Store of Welch on Oct. 8 in McDowell Circuit Court. He later amended the complaint on Jan. 28 to include ALZA and Sandoz as defendants.

In his complaint, Jackie Deskins says his wife, Sherrie Deskins, died after she applied a 75 mcg Sandoz patch to her skin. Sherrie Deskins' doctor, David Carr, prescribed her the medication, which she filled in May 2006. Sherrie Deskins was found dead on May 25, 2006, according to the complaint.

The patch Sherrie Deskins used was designed by ALZA and consisted of a reservoir design that utilized multiple layers. In such a design, a layer of a gel that includes the drug fentanyl is sandwiched in between two of the patch's other layers.

"Fentanyl is an extremely dangerous drug that is at least 80 times stronger than morphine," the suit states. "Fentanyl is classified as a Schedule II controlled substance by the FDA and is generally used to relieve pain."

When placed on the body, the patch delivers fentanyl through a patient's skin. The fentanyl is supposed to be released into the patient at a certain rate and produce a certain level of fentanyl in the blood, according to records.

However, the patch that Sherrie Deskins was using leaked extra amounts of fentanyl into her skin, Jackie Deskins claims.

In fact, ALZA recalled numerous lots of patches in 2004 and twice in 2008 because of leaking defects, Jackie Deskins claims.

"Prior to and at the time of the manufacture of the Deskins Patch, the Patch Defendants knew or should have known that they were producing defective patches that were killing patients and/or injuring patients," the suit states. "Despite the foregoing, the Patch Defendants, with reckless and/or intentional disregard for the safety of patients, continued and continue to this day to manufacture fentanyl patches which kill patients because of the massive revenue being generated by their sale."

Instead of manufacturing a patch using the reservoir design, Alza should have utilized a matrix design, which is safer and cannot leak fentanyl, Jackie Deskins contends.

Although ALZA admits it did recall patches twice in 2008, it denies it recalled them because of leaking defects.

Jackie Deskins included Citizens Drugs as a defendant because it failed to provide adequate warnings about the patch.

Because Jackie Deskins is seeking a judgment of more than $75,000 and because diversity of citizenship exists between him and Alza and Sandoz, the two companies have removed the case back to federal court.

Even though Citizens and Jackie Deskins are both residents of West Virginia, Citizens' residency should not be considered, ALZA and Sandoz contend.

"Any claim against Citizens is time-barred and Citizens has been fraudulently and improperly joined in order to defeat diversity jurisdiction," their motion to remove states.

Because Jackie Deskins did not file suit against Citizens within two years, which the West Virginia Wrongful Death Statute requires, he should not be able to include it as a defendant, ALZA and Sandoz say.

Jackie Deskins is seeking unspecified punitive, exemplary and actual damages, plus pre- and post-judgment interest, costs and other relief to which he may be entitled.

Sandoz is asking the court to dismiss the complaint with prejudice and to grant it other relief it deems just.

Sandoz says Sherrie Deskins' death could have been caused by her own conduct or by another event.

"The injuries and damages allegedly suffered in this action, which are denied, were due to an allergic, idiosyncratic, or idiopathic reaction to the product at issue in this case, or by an unforeseeable illness, unavoidable accident, or preexisting condition, without any negligence or culpable conduct by Sandoz," the suit states.

In addition, Sandoz complied with all state and federal statutes, so Jackie Deskins' claims against the company are barred, the company's answer states.

Kathryn R. Bayless of The Bayless Law Firm in Princeton will be representing Jackie Deskins.

David B. Thomas, Debra C. Price and Zackary B. Mazey of Allen, Guthrie and Thomas in Charleston will be representing ALZA and Sandoz.

U.S. Federal Court case number: 1:09-0248

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