Magistrate to rule on firm's remand motion in drug-pricing case

John O'Brien Apr. 20, 2011, 1:27pm

Brian Glasser

MINNEAPOLIS (Legal Newsline) - A federal magistrate judge must decide if a West Virginia law firm's request to remand a drug-pricing case to Minnesota state court was done within a "reasonable" time frame.

The task given to Magistrate Judge Janie Mayeron is one created by a recent decision by the U.S. Court of Appeals for the Eighth Circuit. It overturned a remand order issued by a now-retired district judge who was critical of the evidence offered by Charleston, W.Va., firm Bailey & Glasser in its case against a group of prescription drug retailers.

The lawsuit alleges the drug stores - which include CVS, Target and Wal-Mart - did not pass savings on generic drugs on to consumers.

After former U.S. District Judge James Rosenbaum called the allegations made in the complaint "laughable," he allowed Bailey & Glasser to amend its complaint. Then he remanded the case to state court, but the Eighth Circuit reversed that decision, saying it could be heard in federal court.

However, the court also asked the district court to rule on the amount of time it took Bailey & Glasser to file its remand motion.

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.

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, 2009.

"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."

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.

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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