Judge recuses from Actos case, cites relationship with pharmacy owner

By John O'Brien | May 22, 2013

MARTINSBURG – The circuit judge assigned to an Actos lawsuit that included a Martinsburg pharmacy as a defendant has disqualified himself from hearing the case.

Berkeley County Circuit Judge Gray Silver III on May 16 filed an order of recusal in Richard F. Myers’ lawsuit, which alleges the diabetes drug Actos caused his bladder cancer. Unlike other Actos cases, it names the pharmacy in which Myers had his prescription filled in addition to Takeda Pharmaceuticals, the drug’s manufacturer.

Silver wrote the appearance of judicial propriety and impartiality would be best served by his recusal.

“The court has been a longstanding regular customer of Defendant Patterson’s Drug Stores, Inc., including the pharmacy, for as long as the court can remember and until as recently as within the last couple of weeks and has a longstanding relationship with Mayor George Karos, owner of Patterson’s, as well as most of the employees, including the pharmacists,” Silver wrote.

The case has been reassigned to Circuit Judge Christopher Wilkes.

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.

“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.”

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.”

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.

Last year, Karos won his fourth term as Martinsburg’s mayor. He began working at Patterson’s part-time when he was 10 years old and bought the store in 1980.

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

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