One of McGraw's final cases sent to MDL in New Jersey

By John O'Brien | May 30, 2013

The Clarkson S. Fisher Federal Building and U.S. Courthouse in Trenton, N.J.

TRENTON, N.J. – Earlier this year, one of the lawsuits former state Attorney General Darrell McGraw filed after losing his re-election bid was transferred to a multidistrict litigation proceeding in New Jersey.

McGraw hired attorneys from four private law firms to file a lawsuit against pharmaceutical companies Bristol-Myers Squibb and Sanofi over the prescription blood thinner Plavix. The lawsuit was filed Dec. 28, 2012, in Marshall County Circuit Court.

The defendants then removed the case to federal court, and, following the creation of a Plavix MDL, it was transferred in March to U.S. District Court for the District of New Jersey.

Attorney General Patrick Morrisey, who defeated McGraw in November, had asked that the case be remanded to Marshall Circuit Court.

Records show that the lawsuit is one of 60 in the MDL.

The complaint says Sanofi and BMS have a marketing partnership that has resulted in an illegal program to promote the use of Plavix. The two have claimed Plavix is a superior drug to aspirin for certain indicated usages when it is not, the complaint says.

“Upon information and belief, BMS/Sanofi misrepresented the efficacy of Plavix as justification to charge a higher price, thereby increasing company profits,” the complaint says.

“BMS/Sanofi charged approximately 100 times more for Plavix than the cost of aspirin. Plavix costs approximately $4.00 per pill whereas aspirin costs approximately $0.04 per pill.”

Hired to represent the State were:

-Robert P. Fitzsimmons and Clayton J. Fitzsimmons of Fitzsimmons Law Firm in Wheeling;

-Carl N. Frankovitch and Mark A. Colantonio of Frankovitch, Anetakis, Colantonio & Simon in Weirton;

-Teresa C. Toriseva of Toriseva Law in Wheeling; and

-Robert L. Salim of Salim-Beasley in Natchitoches, La.

The complaint says the defendants violated the West Virginia Consumer Credit and Protection Act, made misrepresentations to the Public Employees Insurance Agency and violated the Insurance Fraud Prevention Act.

Another state attorney general has filed a lawsuit that is in the MDL. Mississippi’s Jim Hood also sought outside counsel to represent his State and hired Bailey Perrin Bailey of Houston and W. Howard Gunn & Associates of Aberdeen, Miss.

Earlier in May, pharmaceutical maker Pfizer lost its bid to have the case filed by McGraw against it transferred to an MDL in New Jersey.

U.S. District Judge Robert C. Chambers ruled the case should be heard in a state court – Mason Circuit Court.

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.

The same circumstances happened in the Plavix case, except Morrisey dropped his objection to the transfer to the MDL court on March 12.

From the West Virginia Record: Reach John O’Brien at

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