Moorefield doctor added to suit involving Fentanyl death

By Steve Korris | Aug 5, 2010

WELCH – Physician Rajan Masih of Moorefield, facing criminal trial on drug charges, must also defend himself against a civil claim for wrongful death.

WELCH – Physician Rajan Masih of Moorefield, facing criminal trial on drug charges, must also defend himself against a civil claim for wrongful death.

On July 23, the estate of Deborah Crouch added Masih to a McDowell County suit against ALZA Corporation, manufacturer of Fentanyl pain killer patches.

Crouch's son, Bryan Vagenos, claims Masih negligently prescribed the patches.

"Decedent filled the prescription in November 2007," wrote his lawyer, Kathryn Reed Bayless of Princeton, on July 23.

"Decedent died on December 1, 2007," she wrote. "Decedent had a fatal blood Fentanyl concentration at the time of her death."

A criminal indictment against Masih in federal court at Elkins alleges he signed illegal prescriptions for "D.C." and others in 2007.

Chief District Judge John Preston Bailey has set trial to start on Sept. 27.

A federal drug agent signed a complaint against him last August.

Grand jurors indicted him in September on charges of selling and distributing controlled substances. They issued a superseding indictment in October.

In November, Vagenos sued ALZA, Fentanyl distributor Sandoz, and Judy's Drug Store of Petersburg.

In December, ALZA and Sandoz removed the case to federal court in Bluefield.

They claimed Vagenos sued Judy's Drug Store for no purpose except to defeat federal diversity jurisdiction.

Judy's Drug Store agreed, and asked Senior U.S. District Judge David Faber to dismiss the complaint against it.

In February, Vagenos moved to add Masih as a defendant and remand the case to McDowell County.

ALZA and Sandoz opposed the addition of Masih, claiming again that Vagenos improperly sought to defeat diversity jurisdiction.

Faber granted leave to amend the complaint on July 23, and remanded the case to McDowell County.

He wrote that "the court does not believe that plaintiff seeks to join Dr. Masih solely to defeat diversity."

He wrote that Christopher Grubbs completed a certificate of merit demonstrating that Vagenos might have viable claims against Masih.

"According to Dr. Grubbs, Crouch died as a result of fentanyl toxicity and Dr. Masih was the one who prescribed fentanyl to Ms. Crouch," he wrote.

"If the court does not grant the motion to amend, it is all but certain that plaintiff will not simply abandon his claims against Dr. Masih but, instead, be forced to file a separate lawsuit," he wrote.

"Furthermore, it is likely that ALZA and Sandoz will attempt to shift liability from themselves to Dr. Masih and vice versa," he wrote.

At the same time, Faber dismissed Judy's Drug Store.

He predicted that the West Virginia Supreme Court of Appeals would shield Judy's Drug Store from liability on Vagenos's claim of failure to warn.

Nevertheless, the amended complaint named Judy's Drug Store as a defendant and blamed it for failing to provide adequate warnings.

"Judy's Pharmacy knew or should have known that the patches created a high risk of death," Bayless wrote.

The amended complaint shows Dallas lawyers James Orr, Michael Heygood, Eric Pearson, Charles Miller and David Pitcher as "of counsel."

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