WEST VIRGINIA RECORD

RICHMOND, Va. – A federal appeals court has denied Pfizer Inc.’s request to appeal a decision that remanded the state Attorney General’s Office’s case against it to Mason County.

On Aug. 5, the U.S. Court of Appeals for the Fourth Circuit ruled against Pfizer and Ranbaxy Pharmaceuticals in their fight to keep the lawsuit in federal court. U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, remanded the case to Mason Circuit Court on May 13.

In a one-page order, the Fourth Circuit denied Pfizer’s petition for permission to appeal, motion for abeyance and motion for stay pending appeal.

“While we are disappointed in the Fourth Circuit's decision, Pfizer is confident that the procurement and enforcement of its Lipitor patents was at all times proper and lawful. As such, Pfizer categorically denies the claims in the plaintiffs' complaint and will defend itself vigorously," the company said.

"The Lipitor patent settlements, including the settlement with Ranbaxy, were submitted for review to the U.S. Federal Trade Commission and are proper and lawful in all respects.

“Lipitor represents an important innovation in the treatment of high cholesterol and has benefited millions of patients across the country. Protecting our intellectual property is vital to our ability to develop new medicines, like Lipitor, that save and enhance patient lives.”

The lawsuit was filed by former Attorney General Darrell McGraw in his last weeks on the job in January. It alleges Pfizer and Ranbaxy conspired to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

“Defendants seem to suggest that the matter of federal question jurisdiction can be heard by this court on a pendant basis together with the alleged (Class Action Fairness Act) question… That suggestion fails for two reasons,” attorneys for current Attorney General Patrick Morrisey wrote in response to Pfizer’s appeal.

“First… CAFA jurisdiction is lacking here, too. Second, even if there was a reviewable CAFA question, Defendants offer no authority for this court to expend appellate review to matters beyond CAFA-related question. In fact, case law in this court suggests the contrary.

“The bar on reviewing a remand order based on subject matter jurisdiction is so strict that it ordinarily extends also to other issues in the order.”

After Chambers’ May 13 decision, the defendants asked for a stay of the order because of a possibility the case would be transferred to a multidistrict litigation proceeding in a New Jersey federal court.

“(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. In May, the transfer order was withdrawn.

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 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.

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