Plaintiffs attorneys asked for desperation switch, drug stores claim

John O'Brien Feb. 10, 2011, 6:19am

Brian Glasser

ST. LOUIS (Legal Newsline) - Only after a federal judge called its lawsuit "laughable" and "reprehensible" did a West Virginia firm attempt to switch the case to a different court, a group of drug stores is claiming.

Those drug stores made that argument Feb. 3 in their appeal of a remand order signed by the same judge who had harsh words for Charleston's Bailey & Glasser when he dismissed the lawsuit. The drug stores are alleged to have not passed on savings on generic prescription drugs to consumers.

U.S. District Judge James Rosenbaum took issue with what he felt was a lack of evidence presented by the plaintiffs attorneys when he dismissed the lawsuit in November 2009. He was annoyed that the complaint, filed against 13 defendants, contained specific pricing information about only 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, however, decided to allow the attorneys to amend their complaint. He then remanded the case, brought on behalf of unions that provide health care for their members, to a Minnesota state court.

He had told the plaintiffs attorneys, "There's not a lawsuit here. There is not a claim. There is not an allegation. I've got words on a page."

Among the defendants are Kmart, CVS, Sears, Walgreen, Target and Wal-Mart.

"After a second amendment, faced with the potential of a final dismissal, Plaintiffs alleged for the first time (based on information available to them at the time of removal) that the local controversy provision required remand," their brief says.

The drug stores say any motion to remand must be made within 30 days of a lawsuit's removal to federal court. It was more than 100 days after removal that the plaintiffs asked for remand. They did so one day after they learned the defendants were filing another motion to dismiss, the drug stores say.

Bailey & Glasser is representing West Virginia Attorney General Darrell McGraw's office in a similar case. Whether to remand that lawsuit is also an issue, with many of the same defendants from the Minnesota case claiming it belongs in federal court because it is a class action lawsuit.

McGraw hired another private firm - 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.

Bailey & Glasser brought other pricing lawsuits in Michigan. They were dismissed by a state judge because the only specific pricing information was obtained by a West Virginia whistleblower who worked at Kroger.

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