WEST VIRGINIA RECORD

MARTINSBURG – Two weeks after Pfizer Inc. removed 36 Lipitor cases filed in a southern county to federal court, a woman from the Eastern Panhandle has filed suit against the company.

Charlotte T. Kearnes, of Martinsburg, sued Pfizer on Oct. 28 in U.S. District Court for the Northern District of West Virginia at Martinsburg. She says that use of Lipitor, Pfizer’s cholesterol-lowering drug, has caused her type 2 diabetes.

Her use of Lipitor began in 2005. She was diagnosed with type 2 diabetes in August 2009, she says.

“As a result, for the rest of her life, Ms. Kearnes must undergo regular testing of her blood glucose levels, adhere to a restrictive diabetic diet, maintain an exercise regimen, and take medication to control her diabetes,” the complaint says.

“As a result of her diabetes, Ms. Kearnes has developed vision loss so severe that she had to have cataract surgery in both of her eyes. Ms. Kearnes is now also at a markedly increased risk of heart disease, neuropathy, and blindness as a result of her diabetes.”

Had she known she was at risk for diabetes, she would have monitored her blood glucose levels to see if the drug was adversely affecting her metabolism or not used it at all, she says.

Geographically, the lawsuit was filed far from a recently submitted group in McDowell County. That group featured 40 primary plaintiffs.

Of those 40, 26 are citizens of Texas, 10 are citizens of West Virginia and four are citizens of New York.

Pfizer removed 36 to federal court in Bluefield, leaving the New York cases behind in McDowell Circuit Court. 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.”

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.”

Representing Kearnes in her lawsuit are Thomas G. Wilson of Wilson Law Offices in Charleston and the Baltimore law firm Janet, Jenner & Suggs.

On Nov. 1, U.S. District Judge Gina Groh disqualified herself without explanation from hearing Kearnes’ case. It was transferred to John Preston Bailey, the chief judge of the Northern District of West Virginia.