Tevra Brands LLC v. Bayer HealthCare LLC

Background

Tevra brings an antitrust action alleging that Bayer used exclusionary practices that substantially restrained trade in the market for topical imidacloprid flea and tick treatments for dogs and cats. Tevra’s Second Amended Complaint asserts claims under Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act, including exclusive-dealing and monopoly-maintenance theories.

The court had previously granted in part and denied in part Bayer’s motion for summary judgment. It also granted in part and denied in part the parties’ motions challenging expert testimony. This order addresses six motions in limine, which are pretrial requests to limit evidence or arguments.

Tevra’s Motion in Limine No. 1

Tevra sought to exclude a Bayer-commissioned study used by Bayer expert Dr. Celeste Saravia in a qualitative hypothetical-monopolist analysis of the relevant product market. The court denied the motion. It required the parties to call the evidence the “Willingness to Pay Study” and required Bayer’s witnesses to acknowledge that the study’s data was collected in 2016.

The court ruled that the study was relevant even though it measured consumer behavior rather than directly measuring retailer or distributor behavior. It also found that the study’s use of United States data, its coverage of distribution channels and products, and its use of a 7.5% proposed price increase did not require exclusion. The court further ruled that the study qualified as a business record and that its potential to mislead the jury did not substantially outweigh its relevance.

Bayer’s Motion in Limine No. 1

Bayer sought to exclude alternative damages opinions from Tevra’s former chief executive officer, Robert Scharf. The court denied the motion. It stated that Scharf’s testimony might be admissible lay opinion testimony if Tevra establishes his personal knowledge and expertise concerning lost profits and related subjects, but the court did not pre-admit the testimony.

The court also allowed Bayer to conduct an additional one-hour deposition of Scharf concerning damages because Bayer argued that it had not been adequately prepared to respond to any damages estimate he might offer.

Bayer’s Motion in Limine No. 2

Bayer sought to exclude numerous documents and related testimony involving statements attributed to retailers and distributors. Bayer argued that some materials contained multiple levels of hearsay. Tevra argued that the statements were made in furtherance of an alleged conspiracy or were contained in business records.

The court denied the motion without prejudice. It declined to exclude the exhibits as a group and instead stated that admissibility would depend on which exhibits were offered, the context, and whether Tevra established a basis for admitting possible statements by alleged co-conspirators or business records. For any renewed objection, Bayer must identify the portions of the documents it seeks to exclude.

Bayer’s Motion in Limine No. 3

Bayer’s motion concerned three categories of evidence: patent-infringement opinions, lay opinions about alleged tying and below-cost pricing violations, and Tevra’s internal sales projections and forecasts.

The court granted the motion with respect to patent-infringement opinions, finding those opinions and related facts irrelevant to the case. It also granted the motion with respect to lay opinions by Robert Scharf and Jim Corcuera about whether Bayer violated antitrust laws through tying or below-cost pricing. The court found those opinions inadmissible as lay opinions and irrelevant or unfairly prejudicial because Tevra had abandoned or never pleaded those antitrust theories.

The court denied the motion without prejudice with respect to cost and sales projections. It did not decide in advance whether Tevra could establish a proper foundation for the exhibits and stated that Tevra would have an opportunity to do so at trial.

Bayer’s Motion in Limine No. 4

Bayer sought to exclude evidence concerning Petco’s removal of a generic imidacloprid product made by another generic firm and Bayer’s reimbursement of related costs. The court denied the motion. It found the evidence relevant to Tevra’s argument that Bayer engaged in a “no generics” conspiracy and held that the evidence was not unfairly prejudicial merely because it was unfavorable to Bayer.

Bayer’s Motion in Limine No. 5

Bayer sought to prevent Tevra from using the word “conspiracy” and from presenting evidence about arrangements with customers that allegedly went beyond written contracts. The court denied the motion.

The court explained that, in civil antitrust cases, “contract,” “combination,” and “conspiracy” can be used interchangeably to describe concerted action. It also noted that Tevra continued to allege a vertical conspiracy between Bayer and its retailers, even though Tevra had abandoned a hub-and-spoke conspiracy theory. The court ordered an opening jury instruction clarifying that the terms are used interchangeably in this antitrust context.

Disposition

The court ordered that: (1) Tevra’s Motion in Limine No. 1 was denied, subject to the study-name and 2016-data requirements; (2) Bayer’s Motion in Limine No. 1 was denied; (3) Bayer’s Motion in Limine No. 2 was denied without prejudice; (4) Bayer’s Motion in Limine No. 3 was granted with respect to patent-infringement and antitrust opinions and denied without prejudice with respect to cost and sales projections; (5) Bayer’s Motion in Limine No. 4 was denied; and (6) Bayer’s Motion in Limine No. 5 was denied.