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In re Intuniv Antitrust Litigation

United States District Court, D. Massachusetts

December 14, 2018

In re INTUNIV ANTITRUST LITIGATION

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         This case involves allegations that the Defendants settled patent litigation over the ADHD drug Intniv on anticompetitive terms. The Indirect Purchaser Plaintiffs (“IPPs”) are parents and caretakers who purchased Intuniv or generic Intuniv for a child's or ward's medical needs.[1] The IPPs claim that the Defendants engaged in sham patent litigation over Intuniv, and then settled that litigation on terms that delayed competition for both brand Intuniv, manufactured by Shire, and generic Intuniv, manufactured by Actavis.

         Before the Court are the IPPs' motion for a protective order and to quash discovery of their children's and wards' (“Minors”) medical records and Defendants Shire and Actavis' joint motion to compel discovery of the Minors' medical records. [ECF Nos. 114, 116]. The IPPs also request fees and costs. [ECF No. 114-1 at 17-18]. For the reasons explained below the motions are DENIED in part and GRANTED in part.

         I. DISCUSSION

         The Defendants have been attempting to obtain discovery since November 2017 as to the factors that influenced the IPPs' selection of Intuniv, including potential alternative treatments and price. The IPPs have resisted discovery into the Minors' medical, pharmaceutical, and health insurance records (collectively “medical records”) on grounds of irrelevance, undue burden, and privilege. The IPPs produced heavily redacted pharmacy records to demonstrate that they purchased branded or generic Intuniv but declined to make additional productions, provide complete responses to interrogatories, or authorize non-parties to produce medical records.

         The IPPs request that the Court quash a third-party subpoena served on Dr. Steven J. Auster, a medical service provider in this district, issue a protective order prohibiting the Defendants from further prosecution of non-party subpoenas issued to the Minors' healthcare providers, and order the Defendants to pay their fees and costs. Conversely, the Defendants request an order requiring the IPPs to: (i) produce executed authorizations pursuant to Actavis' Demand for Authorizations (“DFA”) to allow the Defendants to obtain the IPPs' medical records, see [ECF No. 118-5]; (ii) provide full responses to Shire's Interrogatories Nos. 1-3, 9, and 10, see [ECF No. 118-3]; (iii) produce documents responsive to Shire's Requests for Production (“RFP”) Nos. 1-4, see [ECF No. 118-4]; and (iv) produce complete and unredacted versions of the prescription records that the IPPs have produced to date. [ECF No. 116 at 2-3]. DFA No. 1[2] and Shire's RFP No. 2[3] could lead to the production of communications between the Minors and their therapists, while the other requests are more narrowly tailored and will not result in the production of such communications. See [ECF Nos. 118-2, 118-3, 118-4, 118-5].

         The legal issues are whether the Minors' medical records are relevant to the claims in this case, whether the Defendants' requests impose a burden that is disproportionate to the needs of the case, and whether the requested materials are privileged.

         a. Relevance

          “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). Discovery “is designed to help define and clarify the issues.” In re New England Compounding Pharmacy, Inc. Prods. Liab. Litig., MDL 13-2419-FDS, 2013 WL 6058483, at *3 (D. Mass. Nov. 13, 2013) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

         The IPPs claim standing to sue and damages because they paid higher co-pays for Intuniv than they would have paid absent the Defendants' conduct, which the IPPs argue unreasonably restrained trade in a “relevant product market” comprised of “Intuniv and its generic equivalents.” [ECF No. 39 ¶¶ 112, 117-32, 157]. The Defendants argue that the Minors' medical records may show that alternative treatments to brand or generic Intuniv were available, and that the availability of alternative treatments will inform the contours of the relevant product market and may provide evidence that the IPPs did not pay a higher price as a result of the challenged conduct. [ECF No. 117 at 2-3, 15].

         “Determining the scope of a product market begins with examining the universe of products that are considered ‘reasonably interchangeable by consumers for the same purposes.'” Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 854 (1st Cir. 2016) (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956)). The Minors' medical records are therefore relevant to extent they contain information on alternative treatments. See Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 481 (1992) (“The proper market definition in this case can be determined only after a factual inquiry into the ‘commercial realities' faced by consumers.” (quoting United States v. Grinnell Corp., 384 U.S. 563, 572 (1966))); In re Loestrin 24 Fe Antitrust Litig., No. 1:13-md-2472-S-PAS, 2017 WL 1491911, at *6 (D.R.I. Mar. 15, 2017) (“[D]ocuments related to the parties' competing versions of the relevant product market are relevant.”). Additionally, because the IPPs claim they were damaged through their insurance co-pays, the IPPs' insurance records and the Minors' pharmaceutical records are relevant to the issue of damages. See [ECF No. 39 ¶¶ 117-32].

         b. Burden and Privilege

         The IPPs' undue burden and privilege objections are based primarily on the argument that the Defendants' requests may lead to the production of privileged psychotherapist-patient communications that could be used to annoy or embarrass the IPPs and the Minors. A party is entitled to nonprivileged, relevant information if its requests are “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). A Court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).

         The laws of the five states on which the IPPs' claims are based, along with federal common law, recognize a psychotherapist-patient privilege. The Supreme Court has stated that the psychotherapist-patient privilege “covers confidential communications made to licensed psychiatrists and psychologists.” Jaffee v. Redmond, 518 U.S. 1, 15 (1996).[4] The privilege is “rooted in the imperative need for confidence and trust” and is intended to promote “frank and complete disclosure of facts, emotions, memories, and fears.” Id. at 10. It covers communications that are made (1) confidentially, (2) between a psychotherapist or another covered person and the patient, and (3) in the course of diagnosis or treatment. Silvestri v. Smith, No. 14-13137-FDS, 2016 WL 778358, at *2 (D. Mass. Feb. 26, 2016) (citing In re Grand Jury Proceedings (Violette), 183 F.3d 71, 73 (1st Cir. 1999)). The privilege protects “‘only the substance of communications' between the patient and his treatment provider” and “does not apply to ‘facts regarding the occurrence of psychotherapy, such as the name of the psychotherapist or dates and costs of treatment, ” or “other non-communicative information such as the nature of any diagnosis or treatment for a mental health condition.” Silvestri, 2016 WL 778358, at *2 (quoting Howe v. Town of N. Andover, 784 F.Supp.2d 24, 34 (D. Mass. 2011); citing In re Adoption of Saul, 804 N.E.2d 359, 363-65 (Mass. App. Ct. 2004)). The IPPs claim that the Minors' medical records are also privileged under the laws of Florida, Massachusetts, Missouri, ...


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