Drug stores want McGraw's lawsuit stayed

John O'Brien Oct. 15, 2010, 11:47am


RICHMOND, Va. (Legal Newsline) - Six prescription drug retailers want West Virginia Attorney General Darrell McGraw's lawsuit against them stayed, just as a similar lawsuit that was once called "absolutely reprehensible" by a federal judge has been.

The drug stores are appealing a federal judge's decision to remand the case to Boone County Circuit Court and want the lawsuit stayed until the U.S. Court of Appeals for the Fourth Circuit rules.

Many of those same stores are fighting a remand order in a Minnesota lawsuit that was brought by the Charleston law firm Bailey & Glasser, which was hired by McGraw to pursue his case.

"(T)he interests of judicial efficiency and economy certainly disfavor further proceedings below that would ultimately be negated if this Court were to grant the Petition and reverse the district court's remand order," the stores wrote to the Fourth Circuit Wednesday.

"Accordingly, this Court should grant Petitioners' request for a stay of the district court's order pending its ruling on the Petition."

McGraw's lawsuit alleges Target, Kroger, CVS, Walgreen, Wal-Mart and Kmart did not pass along savings from filling prescriptions with generic drugs on to consumers.

Bailey & Glasser has brought similar lawsuits in Michigan and Minnesota. The Michigan suits were dismissed by a state judge because the only specific pricing information was obtained by a West Virginia whistleblower who worked at Kroger.

The Minnesota lawsuit, brought on behalf of unions that provides health care for their members, was initially dismissed in November by U.S. District Judge James Rosenbaum, who had harsh words for the plaintiffs attorneys.

Rosenbaum was peeved that the complaint, filed against 13 defendants, only contained specific pricing information about two of them.

"(T)his Complaint utterly fails to state a cause of action on any basis. There are no, none, factual allegations touching any defendant other than CVS and Walgreen's," Rosenbaum said Nov. 20.

"There being no facts from which a fact finder could infer any liability concerning (the other defendants), and you asked me to sustain a complaint based upon that. It's not only laughable, it's absolutely reprehensible."

Rosenbaum allowed the plaintiffs attorneys to amend the complaint but said it would be "a very gutsy move" if the attorneys sought class certification. The matter was then remanded, and the drug stores appealed to the Eighth Circuit.

In fighting the remand order, the drug stores say they are trying to prevent the plaintiffs from judge-shopping.

"When defendants removed the case, plaintiffs amended their complaint and proceeded to litigate without objection until the district court dismissed their claims," attorneys wrote.

"After a second amendment, faced with the potential of a second and final dismissal of their claims, plaintiffs claimed for the first time (based on nothing more than they knew at the time of removal) that (the Class Action Fairness Act's) local controversy provision required remand.

"They made this claim four months after removal."

In West Virginia, McGraw also hired DiTrapano Barrett & DiPiero to pursue the case, and another one against Rite Aid. The two firms have contributed more than $60,000 to McGraw's campaign fund over the years, including $11,800 for his 2008 race against Republican Dan Greear.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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