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"CLARKSBURG &ndash; A federal judge has remanded the lawsuit of man who blames the prescription drug Actos for his bladder cancer, ruling an in-state defendant was not added fraudulently.<br /><br />Takeda Pharmaceuticals had sought to have the case heard in federal court, but U.S. District Judge Irene Keeley ruled at a hearing Nov. 20 that it should be sent back to Harrison County Circuit Court.<br /><br />Also named as a defendant is Patterson&rsquo;s Drug Store, the pharmacy used by Plaintiff Richard Myers.<br /><br />Myers filed his lawsuit in Harrison County Circuit Court on Aug. 18, but Takeda removed it to federal court a month later. On Sept. 28, Myers&rsquo; counsel, Manchin Injury Law Group, filed its motion to remand.<br /><br />&ldquo;(T)he defendants removed the action claiming fraudulent joinder, though they fall woefully short of the pertinent standard,&rdquo; the motion said.<br /><br />Takeda claimed Patterson&rsquo;s Drug Store was fraudulently added as a defendant in an effort to destroy diversity jurisdiction. It said state law and the learned intermediary doctrine barred liability on the part of pharmacies that pass along manufacturer-provided medication.<br /><br />&ldquo;Here, Plaintiff attempts to hinge liability on Patterson&rsquo;s on the allegation that it failed to warn him about a risk of bladder cancer allegedly associated with Actors,&rdquo; Takeda&rsquo;s attorneys wrote Oct. 12.<br /><br />&ldquo;Contrary to Plaintiff&rsquo;s representations, the West Virginia courts have barred pharmacy liability based on this kind of failure-to-warn theory&hellip;&rdquo;<br /><br />Myers&rsquo; attorneys claim federal courts in the state have made pharmacy liability a decision for the finder of fact.<br /><br />Pharmacies are immune from claims over the quality of certain drugs they sell but can still be liable for a failure to warn, Myers&rsquo; attorneys argued. They made nine failure-to-warn claims against Patterson&rsquo;s Drug Store in the complaint.<br /><br />&ldquo;Patterson&rsquo;s is not included in Plaintiff&rsquo;s allegations regarding the design and manufacturing of Actos,&rdquo; the remand motion says.<br /><br />&ldquo;Defendants&rsquo; removal is based entirely on the argument that a manufacturer is responsible for the &lsquo;quality&rsquo; of a drug&hellip; But, Defendants ignore the many theories unrelated to Actos&rsquo; quality, and omit that Plaintiff has not alleged that Patterson&rsquo;s is responsible for the drug&rsquo;s quality.&rdquo;<br /><br />Patterson&rsquo;s attorneys wrote that it was a defendant in the case because all the other defendants were out-of-state entities, &ldquo;and Plaintiff needed an in-state entity to attempt to avoid diversity jurisdiction.&rdquo;<br /><br />It called the lawsuit &ldquo;a typical case of forum shopping and fraudulent joinder.&rdquo;"^^<http://www.w3.org/2001/XMLSchema#string>
<http://wvrecord.com/stories/510604060-companies-lose-forum-shopping-argument-in-actos-case>