In re Solodyn (Minocycline Hydrochloride) Antitrust Litigation
1:14-md-02503
D. Mass.Feb 6, 2018Background
- Multidistrict antitrust litigation concerning Solodyn (minocycline) and whether agreements between Medicis and Impax delayed generic entry and involved an unjustified reverse payment.
- The Court considered five remaining Daubert motions to exclude experts proffered by both sides.
- Plaintiffs (EPPs) seek to rely on experts (including DeBree and Frank) to establish class ascertainability, causation scenarios, and damages; defendants challenge multiple experts as unreliable or impermissibly opining on intent or law.
- Key disputed topics: whether PBM records can identify class members (DeBree); use of but‑for scenarios and reliance on other experts (Frank); industry‑practice and intent opinions (Tupman); whether transactional and procompetitive justifications for the JDA/reverse payment are admissible (Bell, Howson, Carlton).
- The Court largely denied exclusion motions, permitting most expert testimony while carving out limited categories (e.g., expert opinion on parties’ subjective intent).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability and PBM‑based identification (DeBree) | DeBree shows identities/amounts paid are readily available from PBM records; supports class definition | DeBree fails to provide a mechanism to exclude uninjured purchasers and relies on records that include excluded purchasers | Denied—DeBree admissible; ascertainability satisfied previously and other experts addressed exclusion of uninjured members |
| Use of but‑for scenarios and reliance on other experts (Frank) | Frank uses plausible but‑for scenarios to calculate antitrust injury/damages; not opining which but‑for world was true | Methodology unreliable because it assumes unsupported but‑for scenarios and relies on McGuire | Denied—Frank admissible; but‑for assumptions are working premises for jury to test; reliance on other experts permitted |
| Expert opinions on intent/state of mind and valuation methodology (Tupman) | Tupman may explain what a reasonable company would do and provide valuation and industry‑typicality opinions | Tupman impermissibly opines on Medicis/Impax subjective intent and uses flawed valuation methods and single‑company experience | Granted in part—excluded Tupman testimony as to parties’ subjective intent/mental state and their internal valuations; otherwise admissible (methodology criticisms go to weight) |
| Procompetitive justifications, fair‑value, and reliance (Bell, Howson, Carlton) | Plaintiffs: defendants’ experts fail to do a true fair‑value analysis, improperly justify the payment via broader settlement context, and rely on speculative success probabilities | Defendants: experts’ business‑perspective valuations and probability estimates are relevant; fair value is not narrowly defined; procompetitive justifications can include early entry, risk reduction, and related product benefits | Denied in part—experts largely admissible. Court rejects narrow fair‑value definition and permits procompetitive theories (early entry, risk reduction, product development). Limited exclusion: Carlton may not rely on Howson’s technical probability estimates to show economic success (allowed only in part). |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (expert‑admissibility framework)
- In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir.) (ascertainability and class‑definition standards)
- Ferrara & DiMercurio v. St. Paul Mercury, 240 F.3d 1 (1st Cir. 2001) (experts may rely on other experts)
- FTC v. Actavis, Inc., 133 S. Ct. 2223 (Sup. Ct. 2013) (rule‑of‑reason framework for reverse payments)
- In re Loestrin 24 Fe Antitrust Litig., 814 F.3d 538 (1st Cir. 2016) (reasonableness inquiry in antitrust economic analysis)
- King Drug Co. of Florence v. SmithKline Beecham Corp., 791 F.3d 388 (3d Cir. 2015) (limits on certain procompetitive justifications)