Actos litigation hits small business

By John O'Brien | May 9, 2013

Patterson's Drug Store in downtown Martinsburg.


MARTINSBURG – George Karos, the owner of a pharmacy that has long stood in the middle of the town he is also mayor of, proudly declares that several million prescriptions have been filled in his store.

His downtown store is part-pharmacy, part-restaurant and part-museum. Photo collages of customers and friends are placed on the wall, an old-style telephone booth sits in the corner and old pharmacy jars and books are on display for anyone interested.

But one of those millions of prescriptions that Patterson’s Drug Store has filled landed Karos in a legal battle with a customer who blames it for bladder cancer allegedly caused by the diabetes drug Actos.

In addition to suing Takeda Pharmaceuticals, the maker of Actos that now has several thousand lawsuits on its hands, Richard F. Myers of Inwood named Patterson’s as a defendant in a lawsuit filed in August.

Actos cases are just starting to go to trial, and a plaintiff in Los Angeles recently won a $6.5 million judgment against Takeda. However, the judge in the case threw out the verdict, claiming the testimony of the plaintiff's expert witness was unreliable.

The difference in Myers’ case is that he is suing the pharmacy in which he bought the drug.

“There is nothing improper in naming Patterson’s as a defendant in this case, particularly in light of Patterson’s duty to provide medication guides to patient,” wrote Myers’ attorney, Taylor B. Downs of Manchin Injury Law Group in Fairmont.

“Taken in the light most favorable to Plaintiff, the plaintiff has sufficiently alleged that Defendant Patterson’s Drug Store had a duty (to) warn Plaintiff about the risks of Actos and failed to warn Plaintiff about the risks of Actos.”

Patterson’s attorney, Thomas M. Hancock of Bowles Rice in Charleston, had filed a motion to dismiss the lawsuit after it was removed to U.S. District Court for the Northern District of West Virginia.

Patterson’s claimed the only reason it was included as a defendant was to defeat diversity jurisdiction. Including an in-state defendant would help Myers, who purchased the drug at the second Patterson’s location in Inwood, keep his lawsuit out of federal court, the drug store alleged.

“Notably, not one factual allegation exists stating that Patterson’s Drug Store did anything except sell Plaintiff the prescription drug prescribed by his physician,” a motion to dismiss filed in October says.

“Plaintiff has dressed this claim up as a ‘failure to warn’ claim, but doesn’t even attempt to explain how Patterson’s Drug Store’s Inwood, W.Va., location obtained information allegedly hidden from the entire medical community by Takeda Pharmaceuticals.

“All of the plaintiff’s theories of recovery against Patterson’s Drug Store are based on its dispensation of medication and allegations that such dispensation caused a medical injury.”

Karos, who won his fourth term as Martinsburg’s mayor in 2012, prefers to not talk about the lawsuit. He said he’ll leave that to his lawyers.

What he will talk about is business, which is still solid despite the presence of chain pharmacies like CVS, Walgreens, Wal-Mart, Target and Kmart in Martinsburg. He says bigger pharmacies often send customers to his store, which has five pharmacists, seven registered pharmacy technicians and free delivery.

“We thrive on competition,” he said.

The store was named Patterson’s in 1926, which was 54 years before Karos and a former business partner purchased it. Karos started working there part-time as a 10-year-old.

Aside from filling prescriptions, its signature is the JoJo - a glass of ice cream, chocolate syrup, melted peanut butter and marshmallow cream that is probably unfriendly to diabetics like Myers.

Myers first filed the lawsuit in Harrison County, approximately a three-hour drive from the Martinsburg-Inwood area.

From there, the lawsuit was removed to federal court, where Patterson’s filed its motion to dismiss. Downs successfully argued it was too soon for U.S. District Judge Irene Keeley to rule on it because of a pending motion to remand the case back to Harrison County.

In November, Keeley remanded the case to Harrison County. There, Patterson’s made the argument it should be heard in Martinsburg in Berkeley County Circuit Court, which is also just a few miles from Inwood.

On April 22, Harrison Circuit Judge Thomas A. Bedell signed an order transferring the case to Berkeley. He said the choice of Harrison County, which is a half-hour trip down Interstate 79 and Route 50 from Downs’ Fairmont office, was “overly suspect and improper.”

“Upon a fair reading of the proffered allegations and facts (or lack thereof) as contained in the complaint and other responsive pleadings of Plaintiff Myers upon the various motion pleadings presently under consideration, this court finds and concludes there has been no actual showing… that the Defendant Patterson and/or the Takeda defendants: (1) maintain any business relationships with any parties located in Harrison County; (2) perform any services for those parties located in Harrison County; or (3) conduct or benefit from any ongoing business transactions or any ongoing business relationships between it and any customers in Harrison County that would satisfy as ‘sufficient minimum contacts’ in order to lay venue in Harrison County,” Bedell wrote.

As for the actual allegations that will play out in Berkeley County, Myers is claiming Patterson’s altered the original retail package of the drug, supplying him with packaging that included defective information about the side effects of Actos.

“Pharmacies play a crucial role in warning patients about the risks of prescription medications because they are the party responsible for providing patients with written medication guides when they sell and hand the pill bottles to the patient,” Downs wrote.

Patterson’s, the plaintiff claims, did not provide a medication guide that the federal Food and Drug Administration directed Takeda to create as early as September 2009.

“(H)ad the plaintiff received adequate warnings about bladder cancer from Patterson’s pharmacy, then he would not have ingested Actos,” Downs wrote.

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

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