McGraw filed lawsuit against Pfizer before leaving AG's office

HUNTINGTON – In what was one of his final lawsuits, former state Attorney General Darrell McGraw hired a Philadelphia firm to sue pharmaceutical companies Pfizer and Ranbaxy.

The 97-page complaint alleges the two conspired to delay the introduction of a generic version of Pfizer’s Lipitor that was produced by Ranbaxy. It was filed Jan. 2 in Mason County Circuit Court and removed to federal court by the defendants on Feb. 13.

Lipitor’s original patent expired on March 24, 2010, but the complaint alleges the defendants created a scheme that prevented a generic, cheaper version of the cholesterol-lowering drug to be introduced on the market for 20 months.

“Defendants’ scheme was successful – generic Lipitor did not become available for sale until Nov. 30, 2011,” the complaint says.

“As a result of Defendants’ illegal acts, the State paid for Lipitor prescriptions when it otherwise would have paid for lower cost generic equivalent. In addition, natural persons who are citizens and residents of the State of West Virginia paid more for their prescription drugs than they otherwise would have.”

McGraw served as attorney general for 20 years before losing his bid for a sixth term in November to Republican Patrick Morrisey, who took over in January weeks after the suit was filed.

During his time in office, McGraw was frequently criticized for awarding no-bid contracts to private firms that would represent the State on a contingency fee. He hired Charleston attorney Troy Giatras, a frequent choice as special assistant attorney general, as well as the Philadelphia firm Levin Fishbein Sedran & Berman.

The firm never donated to McGraw. Richie Heath, of the AG's office, said it is "currently in the process of reviewing the case."

The complaint alleges Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Warner-Lambert, a wholly owned subsidiary of Pfizer and a defendant in the case, obtained the original patent in 1987.

Recently, a class action lawsuit against the company was filed in New York federal court. That follows similar allegations in a California federal court filed in November.

In removing the case, attorneys for the defendants noticed a multidistrict litigation proceeding organized in April in a New Jersey federal court over the issue. The MDL consists of 25 class action lawsuits.

The defendants say McGraw’s case is a “tag-along” case and should be incorporated into the MDL.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.