Drug maker wants W.Va. pharmacy out of case

CHARLESTON – The makers of a sleep medication says a woman shouldn't be allowed to include a West Virginia pharmacy as a defendant in a recently filed complaint.

Caraco Pharmaceutical Laboratories is fighting the jurisdiction of a woman's lawsuit, which she filed in Kanawha Circuit Court after she claims to have sustained injuries after taking the medicine Zolpidem on Oct. 3, 2008.

Kimberley Hartman filed her complaint in Kanawha Circuit Court against Caraco Pharmaceutical Laboratories and Trivillian's Pharmacy of Kanawha City, but Caraco claims she only added Trivillian's in an attempt to keep her case confined to circuit court.

In her complaint, Hartman claims she incurred personal injuries after ingesting Zolpidem, a medication taken to fight insomnia. She accuses the defendants of failing to warn her of the medication's dangerous side effects and of their negligence in designing, testing and marketing the drug.

However, Caraco claims Hartman should not be allowed to accuse Trivillian's of such negligent acts. Under West Virginia law, pharmacies can only be sued for dispensing the wrong product, for dispensing the incorrect dosage or for counting out the wrong number of pills if they did not manufacture the medication, Caraco's response says.

Therefore, because Caraco manufactured the medication, Hartman cannot include Trivillian as a defendant in her suit, Caraco claims.

"Because Plaintiff joined the pharmacy in this action even though she has no possibility of prevailing against it, the pharmacy is fraudulently and improperly joined and diversity jurisdiction exists between Plaintiff and Caraco," the response states.

Diversity jurisdiction, combined with the fact that Hartman is likely seeking more than $75,000, allows Caraco to remove the case to U.S. District Court.

Since removing the case to federal court, Caraco has attempted to defend itself from Hartman's allegations.

Caraco claims that it warned in a Zolpidem packet about the adverse events that led to Hartman's injuries, which included complex left ear laceration, other lacerations of the neck and a fractured humerus. Hartman's own mishandling of the medication caused her to sustain her damages, Caraco says.

"Plaintiff's claims are barred in whole or in part because Plaintiff's alleged injuries and damages were the direct and proximate result of Plaintiff's own conduct or fault so that the principles of comparative and/or contributory negligence apply," the company's answer states.

It would have been impossible to provide a warning about or to alter the drug's effects on Hartman without substantially impairing the medication's use, Caraco alleges. In addition, it says the drug provides its users with more benefit than harm.

William Scott Wickline and Debra C. Price of Allen, Guthrie and Thomas in Charleston will be representing Caraco.

U.S. District Court case number: 2:10-cv-1319