King allowed to dismiss DAs' drug-pricing suits

Jessica M. Karmasek Sep. 27, 2010, 3:12pm


MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court has ordered a lower court to grant a notice dismissing the prescription drug-pricing lawsuits filed by five district attorneys, as requested by state Attorney General Troy King.

The Court, in its opinion filed Thursday, granted King's petition, directing the Tallapoosa Circuit Court to accept his Oct. 8 notice of dismissal.

Because the Court issued the writ, it denied as moot the petition of the pharmacies being sued.

The suits alleged CVS, Rite Aid, Wal-Mart and Walgreens filled prescriptions with generic drugs when doctors had not specifically authorized the use of generics.

King contended the district attorneys filed the suits because they were promised a "huge payoff" by the private attorneys they hired.

"Make no mistake, it is a settlement they seek," the attorney general wrote in an opinion piece last October.

"They know that it will be so expensive to defend these suits that the defendants are likely to give in to the shakedown. This is extortion by litigation pure and simple and it is wrong."

King had declined to hire the attorneys, saying they lacked evidence to bring a lawsuit. He argued that only an attorney general can hire private lawyers to represent the State.

"These lawsuits were filed not because they had evidence of wrongdoing, but because they had been promised a huge payoff to their offices if they did," King wrote in the editorial.

At the time, he said Alabama was at risk of "descending into tort hell."

In its analysis, the Court wrote, "The attorney general does not argue that the district attorney was without authority to file the complaint in this action. Rather, the attorney general contends that the attorney general is entitled to dismiss the action on behalf of the State over the objection of the district attorney."

The Court said it was not persuaded by the district attorneys' argument that the attorney general has no authority to appear in, direct, control or dismiss a civil action filed by a district attorneys simply because state code is silent on the issue.

In its opinion, the Court cites Section 36-15-21 of state code, which says, "All litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General."

The Court wrote, "Although district attorneys (as well as the attorney general) are charged with instituting and prosecuting criminal and civil actions on behalf of the State, the district attorney has pointed to no rule or statute that permits a district attorney, in the exercise of those duties, to disregard the direction, control, and instruction of the attorney general in such cases.

"Where, as here, the attorney general clearly directs and instructs that litigation on behalf of the State be dismissed, his instructions in that regard take precedence over a district attorney's desire to proceed with the action."

It concluded that King established a clear legal right to appear and to dismiss the action on behalf of the State, and the trial court denied him that right.

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