Pharmacy dismissed from Actos/bladder cancer case

By John O'Brien | Jul 10, 2013

Patterson's Drug Store in downtown Martinsburg.

MARTINSBURG – Patterson’s Drug Store, a small business run by the mayor of Martinsburg, has been dismissed from an Actos lawsuit.

On June 17, the parties in Richard F. Myers’ lawsuit agreed to dismiss Patterson’s as a defendant, with each side to bear its own costs and attorneys fees. Patterson’s was dismissed without prejudice, and there was no indication of any settlement in the dismissal order.

The dismissal leaves Takeda Pharmaceuticals, the maker of Actos, as the remaining defendant. Myers alleges his use of Actos to treat his diabetes caused his bladder cancer.

The inclusion of Patterson’s as a defendant was fought by the pharmacy’s attorneys.

“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.”

The attorney for Patterson's, 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.”

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.

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

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