An example arose in West Virginia recently illustrating how a party other than a drug manufacturer can bear potential liability – in this case, the pharmacy that sold the prescription.
Patterson's Pharmacy is an example of the metaphorical “fly in the amber” - an old-time, independently owned-and-operated drug store that also had a soda counter. Located on Queen Street in Martinsburg, West Virginia, the pharmacy has been operating, virtually unchanged, since James Patterson took over in 1926. The store still delivers prescriptions to its customers' homes. The current owner, George Karos, started working there as a delivery boy at age ten.
Unlike the large corporate chains that now dominate everything where the bottom line is money and nothing but, policy at Patterson's is that if a patient simply cannot afford to pay for a medically necessary prescription, it is simply given free-of-charge – and the store takes the loss. At least one visitor said: “This is a place that has been frozen in time--since the 1950s. REALLY! Brings back memories...” In a video interview on YouTube, Karos says the reason his pharmacy survives in an age of corporate takeovers and mergers and endless, cancer-like acquisitions is because of its service and commitment to the community.
That hasn't prevented this last-of-its-kind neighborhood drugstore from dragged into the product liability litigation aimed at big pharmaceutical firms such as Takeda.
In August of 2012, Richard Myers filed suit against Takeda in Harrison County Circuit Court, alleging that Takeda's diabetic drug, Actos, caused his bladder cancer. He also named Patterson's Drug Store as a co-defendant. Under West Virginia law, a pharmacy cannot be held liable for the quality or side effects of prescription drugs manufactured by an outside company – unless it can be demonstrated that the pharmacist knew about the problems beforehand and failed to warn the patient.
Attorneys for Takeda claimed “fraudulent joinder” - essentially meaning that Patterson's Drug Store had nothing to do with the case and had been named defendant for one reason – to keep the case in Harrison County. Otherwise, since Takeda does not have corporate offices in West Virginia, the case would have to be removed to a federal court. Not surprisingly, many federal courts these days tend to be more corporate-friendly.
As a result of the motion on the part of Takeda, the lawsuit was handed over to U.S. District Court, Northern District of West Virginia a month later. After a hearing on November 20th, however, the Honorable Judge Irene Keeley kicked it right back to Harrison County, pointing out that Myers' complaint “has not alleged that Patterson's is responsible for the drug's quality” - only that the pharmacist failed to warn him about the possible side effects.
Whether or not Patterson's will be found liable for “failure to warn” remains to be seen.
O'Brien, John. “Companies Lose Forum-Shopping Argument in Actos Case.” West Virginia Record, 10 December 2012.
Powers, Mary and Scott Bates. “Patterson's Drug Store.” West Virginia Uncovered (Blog), 9 January 2012. Available at http://wvuncovered.wvu.edu/stories/fall_2011/pattersons-drug-store.
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