Two health insurers have won — at least temporarily — a bid to remand to state court their lawsuits against GlaxoSmithKline seeking reimbursement for the coverage they provided for their insureds who were injured by the drugmaker’s Avandia diabetes drug and Paxil antidepressant drug.

At issue in the case is whether the health insurance carriers are entitled to get from GSK the names and information identifying their insureds who have sued over GSK products.

Even as U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania remanded UnitedHealth Group and Humana Health Plan’s lawsuits against GSK, Rufe seemed to signal in a brief opinion this week that GSK may ultimately succeed in removing the cases back to federal court.

"The court appreciates that it appears likely that once complaints have been filed the state-court actions will be removable on the basis of federal question jurisdiction under ERISA [Employee Retirement Income Security Act] or CAFA [Class Action Fairness Act] but cannot hold that this is necessarily so," Rufe reasoned because of the bright-line rule that cases cannot be removed on the basis of a writ of summons alone.

The U.S. Court of Appeals for the Third Circuit ruled in Sikirica v. Nationwide Insurance that a summons is not an initial pleading in the way that a complaint is that triggers the right of a party to remove a case to federal court under federal-question jurisdiction or diversity of citizenship jurisdiction, Rufe said.

Rufe’s order in UnitedHealth Group v. GSK and Humana Health Plan v. GSK came in the same week in which the U.S. Supreme Court denied certiorari from a Third Circuit decision that private insurers that provide Medicare benefits have the right to recover, just as the federal government does, from GSK for expenses incurred for injuries consumers have suffered by taking the drugmaker’s Avandia diabetes drug.

The Third Circuit is the first circuit court to determine that Medicare Advantage/Part C organizations, or private insurers that get paid by the government to provide Medicare benefits, have the same right as the government to make subrogation claims and assert liens in federal court against settlements plaintiffs receive, The Legal previously reported.

Before the cases were removed to federal court from the Philadelphia Court of Common Pleas, Judge Mark I. Bernstein had ruled that the health insurance carriers are entitled to names and information identifying insureds who sued GSK.

The issue is one of first impression, The Legal previously reported.

The insurance companies are seeking pre-complaint discovery of plaintiffs who have either sued GSK for Avandia- and Paxil-related injuries, who have settled with GSK or who have entered into an agreement with GSK that has tolled their claims.

Bernstein reasoned in 2011 that the insurers cannot assert subrogation claims against GSK without identifying the insureds on whose behalf they would assert those claims.

"Defendants, as the alleged tortfeasors, are not justified in withholding an insured’s identity from its insurer that wants to sue on his or her behalf, even if defendants and the insured have signed a confidentiality agreement," Bernstein said.

However, Bernstein said UnitedHealth is not entitled to identifying information of plaintiffs it has never insured in order to pursue a class action on behalf of similarly situated health plans. Plaintiffs who are not insured by UnitedHealth have not voluntarily given their information to UnitedHealth and would have no way of knowing that their personal information was being released, Bernstein said.

GSK filed the notice of removal of the cases in 2011 on the same day that Bernstein rendered his opinion and a day before the opinion was docketed, The Legal previously reported.

Gerald Lawrence, of Lowey Dannenberg Cohen & Hart in West Conshohocken, Pa., said his clients are pleased with the judge’s order.

GSK did not respond immediately to a request for comment.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the five-page opinion in UnitedHealth Group v. GlaxoSmithKline and Humana Health Plan v. GSK, PICS No. 13-0935, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •