Two sets of opioid distributors, accused in a civil lawsuit of illegally flooding Glynn County with the addictive prescription drugs, filed documents with the federal court in Brunswick last week alleging the plaintiffs acted fraudulently in their successful attempt to get the case remanded from the federal level back to Glynn County Superior Court.
The Cardinal Health and McKesson defendants state in their motion that the “remand order was procured by fraud, misrepresentation and misconduct by plaintiffs and defendant Charles Robert Lott,” and therefore the court should reopen the matter at the federal level. Lott was previously the proprietor of City Drug.
In a memorandum of law accompanying the motion, the defendants state the remand order rested on the fact Lott didn’t consent to removal of the case from superior court to federal district court — removal needed unanimous consent of the defendants.
The memo goes on, “Although plaintiffs represented to this court that Lott was a properly joined defendant whose consent to removal was required, their deal with him makes clear that, having obtained his refusal to consent to removal, they had no intention of pursuing their claims against him,” and the moving defendants cite federal civil procedure Rule 60(b)(3) in arguing vacation of the remand order is appropriate here.
A key part of the argument by Cardinal and McKesson is their attorneys weren’t aware of this settlement before or during the remand hearing — only after.
In Cardinal attorney Christopher Wiech’s amended affidavit, he says, “Immediately after the hearing — after Judge Wood had issued her ruling from the bench to remand the federal action to state court, and the hearing concluded — Alan David Tucker, counsel for defendant Agape Prescriptions ‘R’ Us Inc., Janice Ann Colter and Christopher Grey May, informed me that plaintiffs had already settled their claims against defendant Lott for $1,000.”
However, before the hearing began, Tucker said in the presence of attorneys and court personnel that the plaintiffs settled with Lott.
Defense attorney John Tatum sent a letter June 10 to the plaintiffs’ attorneys alleging misconduct and fraudulent behavior. James D. Durham, attorney for the plaintiffs, responded June 11, and stated there’s only a preliminary agreement in place with Lott and the plaintiffs, which needs to be signed, and hadn’t occurred by the time of the letter.
“Indeed, prior to agreeing to these terms, Mr. Lott discussed the preliminary agreement with Alan David Tucker, counsel for defendants Agape Prescriptions ‘R’ Us Inc., Janice Ann Colter and Christopher Grey Man,” Durham wrote. “In a phone conversation well before the June 4 … hearing …, Mr. Tucker informed me that he had reviewed the preliminary agreement between plaintiffs and Mr. Lott and he had advised Mr. Lott to enter into it.
“Not only did Mr. Tucker share this information with me in our call, he also announced the existence of a settlement agreement in open court in the presence of counsel for the other defendants prior to the hearing on June 4…. Mr. Tucker did this after Whitney Sharp, deputy clerk for Judge Wood, asked whether counsel for Mr. Lott was present.”
Because of this announcement, Durham acknowledges the agreement was known to defense counsel present in the courtroom. In his affidavit, Wiech contends he never heard what Tucker said.
Durham said in his response letter knowledge of settlement terms was known to other defense counsel, as plaintiffs’ counsel discussed a possible agreement regarding G&H Pharmacy, the attorneys for which also represent one of the other distributor defendants, J.M. Smith Corporation.
Durham continued, “And it was certainly no secret that counsel for plaintiffs were in communication with counsel for Mr. Lott, and that Mr. Lot was cooperating with plaintiffs, as plaintiffs attached an affidavit from counsel for Mr. Lott along with email communication between him and your clients’ co-counsel to their motion to remand filed with the court.”