Pfizer removes dozens of McDowell Co. Lipitor lawsuits to federal court

By John O'Brien | Oct 25, 2013

BLUEFIELD – Lawsuits filed by citizens of Texas and West Virginia against Pfizer Inc. have been removed from McDowell County Circuit Court to federal court in Bluefield.

The lawsuits concern Lipitor, a prescription medicine manufactured by Pfizer for the treatment of high cholesterol that can allegedly cause diabetes. On Sept. 4, 14 plaintiffs filed a master complaint in McDowell Circuit Court.

A month later, an amended complaint adding more plaintiffs was filed, and Pfizer removed the cases to U.S. District Court for the Southern District of West Virginia.

In its removal notice, Pfizer said there are 40 primary plaintiffs. Twenty-six are citizens of Texas, 10 are citizens of West Virginia and four are citizens of New York.

The four cases left behind in McDowell Circuit Court appear to be those filed by citizens of New York. Pfizer’s principal office and place of business is in New York.

“Plaintiffs’ case is a separate civil action from each of the other actions included as part of the master Amended Complaint, and therefore it is properly removable,” the removal notice in a Texas couple’s case says.

“The mere fact that New York citizens are included in the master Amended Complaint does not destroy diversity jurisdiction with respect to Plaintiffs.”

The plaintiffs are represented by J. Jeaneen Legato of Legato Law in Charleston and H. Blair Hahn and Christiaan Marcum of Richardson, Patrick, Westbrook & Brickman in Mount Pleasant, S.C.

Legato and the Richardson firm have also represented the State of West Virginia in pharmaceutical litigation through the years after being hired by former Attorney General Darrell McGraw.

Pfizer is arguing that each claim arises from a distinct medical history, including a unique medication regimen, and can’t be joined to defeat diversity jurisdiction and keep the cases in state court.

“Numerous courts have found procedural misjoinder under the precise circumstances here,” the removal notice says.

“Those courts have recognized that claims by pharmaceutical product-liability plaintiffs – like those in this case – are highly individualized and cannot be joined to defeat jurisdiction, even where the plaintiffs allegedly used the same product.”

On July 12, the U.S. Court of Appeals for the Fourth Circuit remanded claims against Pfizer over its drug Zoloft to Wayne Circuit Court.

The claims of 19 families were joined in a master complaint when it was first filed, and a three-judge panel for the Fourth Circuit concluded that the claims created one civil action for purposes of diversity jurisdiction.

The Fourth Circuit denied Pfizer’s motion for a rehearing in front of the entire roster of judges.

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

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