In re: EpiPen Direct Purchaser Litigation

Background

The plaintiffs are drug wholesalers who purchased EpiPens from Mylan Inc. and Mylan Specialty L.P. They allege that pharmacy benefit managers CVS Caremark, Express Scripts, and OptumRx accepted bribes and kickbacks from Mylan in exchange for favoring EpiPen in pharmacy benefit plans. According to the plaintiffs’ theory, this allowed Mylan to increase EpiPen prices without losing sales to competing products. The plaintiffs bring claims under the Racketeer Influenced and Corrupt Organizations Act and Section Two of the Sherman Antitrust Act. The opinion notes that the District Court previously dismissed the plaintiffs’ Section One Sherman Act claim.

The motion concerned four interrogatories: Express Scripts’ Interrogatories 7, 9, and 10, and OptumRx’s Interrogatory 14. The defendants argued that the plaintiffs’ answers were incomplete. The plaintiffs argued that their answers were sufficient or that some requested information required expert analysis.

Legal standard

Federal Rule of Civil Procedure 26(b) permits discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Under Rule 33, parties generally must answer interrogatories fully, and Rule 37 permits a party to seek an order compelling an answer when an interrogatory is not properly answered. The court treated the disputed questions as contention interrogatories—questions asking a party to explain the facts supporting a claim or defense. Rule 33 allows a court to delay answers to such questions until designated discovery is complete.

Analysis

Express Scripts’ Interrogatory 7. Express Scripts sought an allocation of the alleged EpiPen overcharge among the Mylan-Express Scripts enterprise, other alleged RICO enterprises, Mylan’s alleged monopolization, and other potential sources. The court held that Express Scripts had not made the required threshold showing that this allocation was relevant. Applying traditional tort principles to the civil RICO claims, the court concluded that the alleged price-increase injury was indivisible because the opinion found no reasonable basis for determining how much damage was caused separately by the different alleged enterprises and Mylan’s alleged anticompetitive conduct. The court therefore ruled that plaintiffs did not need to supplement their response to Interrogatory 7.

Express Scripts’ Interrogatory 9 and OptumRx’s Interrogatory 14. These interrogatories asked the plaintiffs to identify the payments from Mylan to Express Scripts and OptumRx that allegedly violated state law and to explain why those payments fell within the relevant states’ jurisdiction. The court found that the information was relevant and proportional because it concerned the factual basis for the state-law violations alleged as predicate acts supporting the plaintiffs’ civil RICO claims. The court found the plaintiffs’ categorical answers too broad and insufficiently informative.

The court ordered the plaintiffs to provide more complete answers by April 21, 2023. The initial supplement had to identify each state law allegedly violated, each payment containing an alleged commercial bribe, and the jurisdictional basis for each payment. The court did not require the plaintiffs at that stage to estimate what portion of each payment resulted from the alleged supracompetitive EpiPen price. The plaintiffs had to update their answers at the close of expert discovery with additional information from that discovery.

Express Scripts’ Interrogatory 10. This interrogatory asked which rebates and fees Express Scripts received from Mylan the plaintiffs believed Express Scripts could lawfully retain and which constituted bribes or racketeering activity. The court found the information relevant and proportional but concluded that answering required an opinion based on expert analysis of what EpiPen prices would have been without the alleged illegal conduct. The court therefore ordered the plaintiffs to provide a full response at the close of expert discovery rather than requiring them to speculate earlier.

Disposition

Judge John F. Docherty ordered that the motion to compel was GRANTED IN PART AND DENIED IN PART. Specifically, the motion concerning Express Scripts’ Interrogatory 7 was DENIED. The motion concerning Express Scripts’ Interrogatory 9 and OptumRx’s Interrogatory 14 was GRANTED IN PART AND DENIED IN PART, with an initial supplement due by April 21, 2023, and an update due at the close of expert discovery. The motion concerning Express Scripts’ Interrogatory 10 was also GRANTED IN PART AND DENIED IN PART, with a full response due at the close of expert discovery.