Ky. AG again asks for dismissal of outside counsel lawsuit

John O'Brien Apr. 13, 2012, 7:45am


FRANKFORT, Ky. (Legal Newsline) - Kentucky Attorney General Jack Conway is renewing his request to have a lawsuit filed against him over his hiring of private lawyers dismissed.

U.S. District Judge Danny Reeves recently denied Merck & Co.'s request for an injunction against Conway's employment agreement with outside counsel, but also denied Conway's motion to dismiss Merck's lawsuit.

Merck says it is unlawful for Conway to employ outside attorneys for his case over Merck's anti-inflammatory drug Vioxx. Conway now says the federal court shouldn't rule on his motion to dismiss because his lawsuit against Merck recently moved back to state court.

"Because a concurrent state proceeding is now pending in which the attorney general is advancing the interests of the sovereign Commonwealth, a viable forum exists for Merck to assert any constitutional defenses against the plaintiff, and abstention is therefore proper," Conway wrote Tuesday.

In September 2009, Conway filed a lawsuit against Merck over alleged violations of the state's Consumer Protection Act.

The drugmaker was charged with violating the law by marketing their anti-inflammatory drug Vioxx without revealing all the facts.

The suit, Commonwealth ex rel. Conway v. Merck & Co. Inc., alleged that in May 1999 Merck began an aggressive and deceptive promotional campaign of the drug directed at both consumers and health care professionals, without mentioning warnings of increased risk of cardiovascular events listed as a side effect.

Conway alleged that Merck was aware of the dangers through internal studies that were not disclosed to the FDA or the public.

The lawsuit also accused Merck of engaging in an elaborate scheme to create or publish scholarly articles under fake or ghost authors in order to drum up support for Vioxx.

In 2004, Merck admitted that Vioxx caused serious side effects and pulled the product from the market.

A year after filing his case, Conway hired Garmer & Prather, a plaintiffs firm in Lexington, Ky.

Merck alleges that, in entering into such a contract with private lawyers, Conway has granted them a stake in the outcome of the lawsuit.

The company also alleges that Conway's outside counsel has since assumed the lead role in the prosecution of the suit and has "made or influenced myriad decisions about the prosecution, large and small."

Conway says the company's gripes should be heard in state court now, after the March 20 remand of his case. He says the Younger v. Harris abstention doctrine requires it.

"As initially developed, the Younger doctrine limited the power of the federal courts to interfere with state criminal proceedings," Conway wrote.

"Subsequently, however, the court applied Younger to civil cases in state courts by extending the doctrine to civil litigation where the state government is a party - exactly the situation currently underway in Merck I. When vital state interests are implicated in the ongoing state judicial proceeding, as they are in Merck I, federal courts should abstain unless exceptional circumstances exist."

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