Tevra Brands LLC v. Bayer HealthCare LLC
- Beth Freeman
- 5:19-cv-04312
- U.S. District Court · Northern District of California
- 7
In Tevra Brands v. Bayer HealthCare, Judge Freeman denied Tevra’s new-trial motion, finding no prejudicial error in expert testimony or study evidence.
Tevra Brands LLC’s request for a new trial was denied, leaving the jury’s verdict for Bayer HealthCare LLC on the two claims submitted to the jury in place.
What happened
Tevra Brands sued Bayer HealthCare under federal antitrust laws concerning Bayer’s Advantage and Advantix flea and tick treatments. After trial, the jury found that Tevra had not proved the relevant market was limited to topical imidacloprid products and found for Bayer on the two claims submitted to it. Tevra then asked for a new trial.
Tevra argued that the court should have excluded Bayer’s expert testimony about the relevant market and a study concerning consumers’ willingness to pay. Tevra also argued that these materials confused the jury and were otherwise inadmissible. Bayer argued that the court had correctly allowed the evidence and that Tevra had not shown that any mistake affected the trial.
Judge Freeman denied Tevra’s motion for a new trial. The court said it had already considered and rejected Tevra’s challenges to the expert and the study, found no evidentiary error, and concluded that Tevra had not shown prejudice or a miscarriage of justice.
The detailed version
- Tevra Brands LLC v. Bayer HealthCare LLC · No. 5:19-cv-04312
- Beth Freeman
- Jan. 21, 2025
Background
Tevra Brands LLC brought an antitrust action against Bayer HealthCare LLC concerning Bayer’s sales of Advantage and Advantix topical flea and tick treatments for cats and dogs containing imidacloprid. Tevra asserted claims under Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act. The Section 1 claim was withdrawn during trial and dismissed by the court. The jury then considered Tevra’s remaining claims and found for Bayer on both.
The jury also answered “No” when asked whether Tevra had proved that the relevant antitrust market was limited to topical imidacloprid flea and tick products for dogs and cats in the United States. The court entered judgment on August 1, 2024. Tevra moved for a new trial under Federal Rule of Civil Procedure 59.
Legal standard
The court explained that Rule 59 permits a new trial when the verdict is contrary to the clear weight of the evidence, rests on false or perjurious evidence, or a new trial is needed to prevent a miscarriage of justice. A new trial based on an evidentiary ruling requires a substantially prejudicial error—one that affected the party’s right to a fair trial.
Tevra’s challenges to the expert testimony
Tevra argued that the court should have excluded the opinion and testimony of Bayer’s expert, Dr. Celeste Saravia, under the rule governing the reliability and admissibility of expert testimony. Tevra contended that Dr. Saravia’s qualitative analysis of consumer switching did not properly perform a “small but significant and non-transitory increase in price” test, commonly called a SSNIP test, at the wholesale level. Tevra argued that only its expert, Dr. Paul Wong, had properly conducted that test.
The court rejected the argument. It said that its earlier analysis had examined the evidence considered by Dr. Saravia and her analysis of that evidence, and had found no error serious enough to require exclusion. The court had previously concluded that Tevra’s criticisms were matters for cross-examination. The court also declined to conduct the requested post-verdict expert-evidence analysis, finding nothing in Dr. Saravia’s trial testimony suggesting that her methodology was inadmissible. The court concluded that Tevra had presented no basis to reconsider the earlier ruling concerning Dr. Saravia.
Willingness to Pay Study
Tevra also challenged the admission of a study titled “Willingness to Pay Study.” Tevra argued that the study was irrelevant, could confuse the jury, and was hearsay because Bayer had not presented a witness with first-hand knowledge of how it was compiled. Tevra also argued that the study concerned consumer purchasing behavior rather than the behavior of retailers or distributors and that the consumer substitution it showed resulted from Bayer’s alleged monopoly pricing.
The court said it had previously considered and rejected these arguments. It noted that the study’s data had been collected in 2016 and that Bayer was directed to make that clear to the jury. The court had also found the study directly relevant to the jury’s consideration of the relevant product market and had admitted it as non-hearsay and/or a business record. After reviewing the earlier ruling, Tevra’s arguments, and the trial evidence, the court found no error and no basis to reconsider the ruling admitting the study.
Prejudice and ruling
The court further found that Tevra had not shown prejudice. Tevra had an opportunity to present evidence supporting its proposed market definition, but the jury was free to consider all admitted evidence. The court cited evidence that challenged Dr. Wong’s SSNIP analysis, including testimony about price changes and discounts, as well as evidence that consumers viewed imidacloprid and fipronil topical products as interchangeable and that other competitors existed. The court concluded that this evidence alone was sufficient to support the jury’s SSNIP-related finding.
The court therefore concluded that a new trial was not warranted to prevent a miscarriage of justice and DENIED Plaintiff’s Motion for New Trial.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.