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In re Solodyn (Minocycline Hydrochloride) Antitrust Litigation

United States District Court, D. Massachusetts

February 6, 2018



          CASPER, J.

         I. Introduction

         The Court has previously resolved eleven of the motions to exclude proffered expert testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) filed, D. 948, and now, after oral argument, D. 979, the Court resolves the remaining five Daubert motions. D. 742, 743, 746, 749, 750.

         II. Discussion

         A. W. Paul DeBree

         Defendants move to strike W. Paul DeBree's (“DeBree”) expert testimony. D. 742. DeBree has over twenty years of experience in the Pharmacy Benefit Manager (“PBM”) industry, and “opine[s] on the mechanics of the PBM industry and the possibility of identifying indirect purchasers” for the EPP class. D. 577-1 ¶¶ 1, 5 (“DeBree Rpt.”). He concludes that “the identities of those who paid or reimbursed for Solodyn and generic Solodyn” and the amount they paid are “readily available” without analyzing individual PBM contracts. Id. ¶¶ 6, 24.

         Defendants argue that DeBree's opinion is “irrelevant to the ascertainability standard, ” under which, Defendants argue, the Plaintiffs must “establish a mechanism for distinguishing the injured from uninjured class members.” D. 742-1 at 3 (quoting In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015)). Defendants argue that DeBree identifies class members without proposing a method for excluding uninjured members. D. 742-1 at 3-4. DeBree relies upon records that include purchasers that EPPs purport to exclude, such as flat co-payers, third-party purchasers that are fully insured and consumers who used coupons. D. 742-1 at 4-7. The Court already allowed class certification, and as the Court explained then, the ascertainability requirement demands an “objective criterion” upon which to define the class, a standard the EPP class readily met, with the support of DeBree's testimony. D. 682 at 28 (quoting Nexium, 777 F.3d at 19). Even if Defendants are correct that DeBree does not propose a mechanism for separating the uninjured from the injured class members, EPPs relied upon other expert testimony-such as that of Dr. Richard Frank-for that at class certification. See D. 682 at 30-38. DeBree's testimony was still relevant to the ascertainability standard and the Court does not strike it on this basis.

         It is not clear whether DeBree's testimony will be offered during Phase I of the trial, given that his testimony focuses on class certification and damages allocation, see DeBree Rpt. ¶¶ 5-6, but he is currently listed as a potential witness for the Plaintiffs, D. 943 at 47. Seeing no other objections to DeBree's expert opinion, the Court DENIES Defendants' motion to exclude it, D. 742.

         B. Dr. Richard Frank

         Defendants also move to strike the expert opinion of Dr. Richard Frank (“Frank”). D. 743. Frank is a professor of Health Economics at Harvard Medical School with three decades of experience working as an economist focused on the pharmaceutical industry. D. 732-1 ¶¶ 1-4 (“Frank Rpt.”). Defendants argue that Frank's methodology is unreliable because it depends upon but-for scenarios that are without support in his report or elsewhere in the record. D. 743-1 at 4-7. EPPs argue that Frank's expert opinion rather focuses on the antitrust injury and damages resulting from Plaintiffs' hypothetical success on each causation theory. D. 865 at 7-8. In fact, Frank's report makes clear that he is not opining on which but-for scenarios would have occurred, or why. Frank Rpt. ¶ 48. Moreover, as the Court has ruled, D. 948 at 37, 41, 43-44, 51, there remains a genuine dispute of material fact regarding Plaintiffs' causation theories.

         Defendants focus on what Frank calls Scenario 1 (and what the Court has now labeled “Scenario A, ” D. 948 at 31), a but-for scenario in which Impax launched at-risk. D. 743-1 at 4-5. The Court will not decide the sufficiency of this particular causation theory, which is built on several evidentiary building blocks already discussed, see D. 948 at 31-44, within the context of deciding the admissibility of Frank's expert opinion, which uses the but-for scenarios as working assumptions. Rather, the jury must determine whether those causation theories have merit and whether the assumptions Frank relied upon are reliable bases for his opinion. See In re Asacol Antitrust Litig., No. 15-cv-12730-DJC, 2017 U.S. Dist. LEXIS 186009, at *41 (D. Mass. Nov. 8, 2017). If Defendants persuade the jury that, as they argue, Frank's Scenario 1 could not have occurred in a but-for world, then they will be undermining Frank's damages calculations that depend on that assumption as well.

         Defendants also argue that Frank's opinions are unreliable because they are based upon certain conclusions about but-for scenarios by Plaintiffs' expert Thomas McGuire. D. 743-1 at 5-6. Experts are permitted to rely on the conclusions of other experts, see Ferrara & DiMercurio v. St. Paul Mercury, 240 F.3d 1, 9 (1st Cir. 2001), and the Court has declined to exclude the portions of McGuire's testimony relevant here. D. 948 at 47-48.

         Finally, Defendants contend that Frank opines on the state of mind of the FDA and Congress and offers opinions regarding the law. D. 743-1 at 6-7; D. 909 at 8-9. Defendants are correct that Frank cannot testify as to the state of mind of an agency or corporation, but Defendants have not identified particular statements from Frank's report that are problematic in this way. The Court sees no Daubert issue with Frank's explanation of concepts such as, for example, ...

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