CHARLESTON – West Virginia Attorney General Patrick Morrisey has petitioned the court to enforce a subpoena against Mylan as part of an investigation into the skyrocketing price of its EpiPen.
The petition was filed in Kanawha Circuit Court and outlines the increasing price against a backdrop of failed attempts to introduce an EpiPen competitor, litigation over intellectual property and dominance Mylan has over the epinephrine auto injector market.
Morrisey believes the publicly known facts about Mylan establish probable cause for an investigative subpoena, which his office issued on Aug. 26.
Mylan initially agreed to cooperate, but has since failed to respond to the majority of the subpoena.
“I have a statutory responsibility to investigate any potential antitrust violation,” Morrisey said. “Consumers lose when competition doesn’t flourish. My office owes it to consumers to be their watchdog and turn over every rock to ensure fair play.”
Morrisey’s subpoena also inquires aboute rebates Mylan paid to participate in the state’s Medicaid program.
The subpoena cites public reports suggesting Mylan paid rebates typically associated with “non-innovator” drugs, even though brand-name drugs like EpiPen generally pay higher, “innovator” drug rebates.
The petition suggests that such conduct, if proven, could subject Mylan to a potential Medicaid fraud action under West Virginia law.
Mylan, which operates a manufacturing plant near Morgantown, acquired the exclusive rights to market EpiPen in 2007. The single-use, epinephrine auto injector has become a must-have for counteracting the effects of an allergic anaphylactic reaction.
After Mylan acquired the rights to EpiPen, its price skyrocketed from about $100 for a twin pack in 2009 to a current price tag of more than $600. With the need for as many as three EpiPens and a shelf life of just one year, the price hikes have been difficult to endure.