Antitrust Update Blog

In re: Nexium Plaintiffs Seek New Trial

As reported previously, the first post-Actavis jury verdict in a “reverse payment” antitrust case handed a win to the defendants.  Now, plaintiffs in In re: Nexium (Esomeprazole) Antitrust Litigation have moved for a new trial, arguing that the Massachusetts federal district court committed error in formulating the jury charge and in excluding some of plaintiffs’ evidence.

The alleged errors concern the question posed by the court to the jury regarding causation—i.e. the anticompetitive effect of the allegedly “large and unjustified” payment from brand manufacturer AstraZeneca to generic manufacturer Ranbaxy—and the court’s evidentiary rulings surrounding the same issue.  The plaintiffs also argue that the Judge Young’s initial misapprehension, which he later acknowledged, of the relationship between Ranbaxy and another generic manufacturer “infected” rulings made throughout trial.

On the first point, the Class Plaintiffs argue  that “Question 4” (of five questions issued to the jury) was improperly framed.  Rather than inquiring what the date of entry for Ranbaxy’s generic product would have been absent the “large and unjustified” payment by AstraZeneca, they say that Question 4 (rewritten the day before it was presented to the jury) asked “about AstraZeneca’s subjective desires if it could not pay off Ranbaxy.”  This charge confused the jury, say plaintiffs, by “instructing the jury to consider what AstraZeneca itself, rather than a reasonable manufacturer in AstraZeneca’s position, would have done.”

Indeed, according to plaintiffs, the jury’s pro-defendant response to Question 4 contradicted its pro-plaintiff answers to the previous three questions:

In answering “yes” to Questions 1, 2, and 3, the jury found that (i) AstraZeneca exercised market power within the relevant market, (ii) the settlement of the AstraZeneca-Ranbaxy patent litigation included a large and unjustified payment by AstraZeneca to Ranbaxy, and (iii) AstraZeneca’s Nexium settlement with Ranbaxy was unreasonably anticompetitive (i.e., that the anticompetitive effects of that settlement outweighed any procompetitive justifications). . . .  The “no” answer to Question 4 (i) if taken as an objective question, means there was no delay in the agreed entry date and so contradicts the “yes” answer to Question 3, or (ii) if taken as a subjective question, means AstraZeneca did not want to give Ranbaxy an earlier agreed entry date, which is the wrong question.

Furthermore, plaintiffs argue that the court did not permit them to introduce evidence regarding the “right” question: i.e., in the absence of the unlawful reverse payment, when would Ranbaxy’s generic have gone to market?  Plaintiffs fault the court for allowing “subjective” and “self-serving” statements from AstraZeneca that it would not have agreed to an earlier entry date while excluding testimony from plaintiffs’ experts about what rational counterparties in AstraZeneca’s and Ranbaxy’s shoes would have actually done were it not for the reverse payment from the former to the latter.

On the second point, Individual Plaintiffs (who also join the Class Plaintiffs in their accompanying motion) argue that Judge Young made a “fundamental legal error” by failing to apprehend at the outset of trial that a pay-for-delay agreement between AstraZeneca and Ranbaxy also would have delayed the entry of a generic product manufactured by Teva.  Plaintiffs remind Judge Young that he (in his words) “confess[ed] to [the] fairly fundamental misconception,” but say that by the time he corrected it, the damage had been done.  The evidence permitted and presented in the case had been structured around the misconception, and the plaintiffs never had an ample opportunity to supplement the record after the misconception was corrected.

Defendants AstraZeneca and Ranbaxy have requested an extension of their deadline to respond to the plaintiffs’ motions until January 30, 2015.