WEST VIRGINIA RECORD

HUNTINGTON – Pharmaceutical manufacturer Pfizer has lost its request to have the lawsuit filed against it by former Attorney General Darrell McGraw heard in a multidistrict litigation proceeding in New Jersey federal court.

Instead, U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, has remanded the case to Mason County Circuit Court, where it was first filed in McGraw’s last month on the job.

New Attorney General Patrick Morrisey has taken the reins of the case and opposed Pfizer’s MDL transfer request.

“(T)he court concludes that there is no persuasive reason to stay this action pending its possible transfer to federal MDL proceedings,” Chambers wrote.

“After evaluating the merits of the parties’ arguments regarding remand, the court determines that the claims asserted in the complaint do not arise under federal law, nor do they fall within this court’s diversity jurisdiction. Because this court lacks subject matter jurisdiction, Plaintiff’s motion to remand must therefore be granted.”

The complaint alleges Pfizer and Ranbaxy conspired to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

It says 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 on an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed the MDL organized in April in a New Jersey federal court over the issue that consists of at least 29 class action lawsuits. They said Morrisey’s case is a “tag-along” and should have been incorporated into the MDL.

The defendants had filed a motion to stay the lawsuit pending a transfer to the MDL. The Judicial Panel on MDL had issued a conditional transfer order that Morrisey objected to.

“Filing a Notice of Removal and then seeking to utilize Multidistrict Litigation Panel procedures to forum shop (is) an abuse of the MDL process and strips the State of its sovereign rights,” a memorandum filed April 3 by Morrisey chief counsel Dan Greear said.

“Yet, this is precisely what the defendants have done.”

Chambers refused to impose a stay and addressed the defendants’ claims that the lawsuit belonged in federal court.

The defendants’ claimed the allegations depended on questions of federal patent law and that the Class Action Fairness Act of 2005 allowed removal.

Chambers was not persuaded by any of the defendants’ arguments and looked to a recent decision by the U.S. Court of Appeals for the Fourth Circuit in McGraw’s case against CVS Pharmacy, which had made a similar CAFA argument.

The lawsuit is not a class action, and the State is invoking its parens patriae power in pursuing it, Morrisey argued.

Defendants’ attempts to distinguish CVS Pharmacy from this case are unavailing,” Chambers wrote.

“First, Defendants argue that CVS Pharmacy’s reasoning does not govern here, because unlike the complaint in CVS Pharmacy, this case involves claims asserted under the (West Virginia Antitrust Act).

“The Court sees no meaningful difference between the WVAA and the (West Virginia Consumer and Credit Protection Act) that would justify allowing removal of cases involving the former but not the latter.”

Outside counsel hired by McGraw to represent the State are Troy Giatras of Charleston and the Philadelphia firm Levin Fishbein Sedran & Berman.

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