Minn. drug pricing case in need of new judge

John O'Brien Apr. 5, 2011, 1:17pm

Brian Glasser

MINNEAPOLIS (Legal Newsline) - Because of a retirement and a recusal, a lawsuit brought by a West Virginia law firm over generic drug pricing is now a case without a judge.

The U.S. Court of Appeals for the Eighth Circuit recently overturned a remand order in the case, ruling it should be heard in Minnesota federal court. The lawsuit, filed by Bailey & Glasser of Charleston, is similar to one the firm brought in West Virginia on behalf of state Attorney General Darrell McGraw.

U.S. District Judge James Rosenbaum, who remanded the case to state court after calling the allegations made in it "laughable," has since retired. And in March, Judge Richard Kyle recused himself from the case after it was assigned to him.

In November 2009, Rosenbaum was annoyed that the complaint, filed against 13 defendants on behalf of unions that provide health care for their members, 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. They are alleged to not have passed on savings on generic drugs to consumers.

McGraw's lawsuit is currently before the Fourth Circuit, which is deciding if it is a class action and should be heard in federal court or should be remanded to Boone County Circuit Court.

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

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