Federal judge gives Ky. AG more time to file replies in challenge over attorneys contract

By Jessica M. Karmasek | Mar 18, 2013

FRANKFORT, Ky. (Legal Newsline) -- A federal judge has granted Kentucky Attorney General Jack Conway's request for more time to file replies in a lawsuit filed by Merck & Co. over the state's contract with private attorneys.

Judge Danny Reeves, for the U.S. District Court for the Eastern District of Kentucky Central Division, granted Conway's motion in a two-page order filed Thursday.

In his motion Wednesday, the attorney general requested a one-week extension to file the state's reply brief in further support of its motion for summary judgment and its reply brief in further support of its motion in limine.

The replies were due Thursday.

Merck said it did not object to the request, but only if the same extension applies to the drugmaker's own deadline for filing its reply in further support of its motion for summary judgment. That reply also was due Thursday.

According to Reeve's order, Conway said the attorneys responsible for authoring the replies were "unexpectedly out of the office" for various reasons.

In granting the attorney general's motion, the judge wrote that both parties have until March 21 to file their replies.

In December, the federal court denied Conway's renewed motion to dismiss the suit.

Merck is challenging the contingency fee contract Conway entered into with private attorneys to sue the pharmaceutical company over the anti-inflammatory drug Vioxx. That case is before a state court.

In September 2009, the attorney general 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 and Prather PLLC, 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 contends the company's gripes should be heard in state court.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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