Pfizer appeals remand decision in AG's lawsuit

By John O'Brien | May 31, 2013

RICHMOND, Va. – Pfizer and its co-defendants are appealing a ruling that would remand state Attorney General Patrick Morrisey’s lawsuit against them to Mason Circuit Court.

On May 23, the defendants asked for permission to appeal a decision by U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, that denied their request to have the lawsuit transferred to a multidistrict litigation proceeding in a New Jersey federal court.

The lawsuit, originally filed by former AG Darrell McGraw during his last month on the job, alleges Pfizer conspired with Ranbaxy to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

Morrisey and chief counsel Dan Greear opposed transfer of the case to the MDL court and argued it should be remanded to Mason Circuit Court, where it was first filed.

“(T)he court concludes that there is no persuasive reason to stay this action pending its possible transfer to federal MDL proceedings,” Chambers wrote May 13.

“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 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.

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.

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

The court requested a response/answer from Morrisey to the petition for permission appeal by June 6.

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

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