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In re Niaspan Antitrust Litig.

United States District Court for the Eastern District of Pennsylvania

June 2, 2020, Decided; June 3, 2020, Filed

MDL NO. 2460; MASTER FILE NO. 13-MD-2460

Opinion

MEMORANDUM

TABLE OF CONTENTS

I. INTRODUCTION

II. BACKGROUND

III. MOTION TO EXCLUDE THE EXPERT TESTIMONY OF LAURA CRAFT AND

ERIC MILLER

a. Applicable Law

i. Qualification

ii. Reliability

iii. Fit

b. Discussion

i. Eric Miller

1. Qualification

2. Reliability

3. Fit

4. Conclusion

ii. Laura Craft

1. Qualification

2. Reliability

3. Fit

4. Conclusion

IV. EPPS' MOTION FOR CLASS CERTIFICATION

a. Legal Standard

b. Discussion

c. Rule 23(a) Requirements

i. Numerosity

ii. Commonality

iii. Typicality

iv. Adequacy

d. Rule 23(b)(3) Requirements

i. Ascertainability

1. Defining Class with Reference to Objective Criteria

2. Reliable and Administratively Feasible Mechanism for Determining

Whether Putative Class Members Fall Within the Class Definition

a. EPPs' Evidence of a Reliable and Administratively

Feasible Mechanism

b. Data Obtainability

c. Methodology for Determining Class Membership

ii. Predominance

1. The Impact of Individual Questions for Antitrust Injury and Impact

2. Antitrust Injury and Impact Standard for State Law Claims

3. EPPs' Common Proof of Injury

4. Defendants' Challenges to EPPs' Common Proof of Injury

a. EPPs' Use of Averages To Prove Classwide Injury

b. Means of Removing Uninjured Class [*2]  Members

i. Brand Loyalists

ii. Uninjured Consumers Due to Co-payment Assistance

iii. Health Reimbursement Accounts

iv. Flat Co-Payors

v. Consumers Who Filled all Niaspan Prescriptions After Reaching

a Medicare Part D Coverage Gap

vi. TPPs Paying the Same or More for Generic Niaspan than

Brand Niaspan

vii. Rebates

viii. Conclusion: Uninjured Class Members

5. Defendants' Challenge to EPPs' Aggregate Damages Model

6. Availability of Pass-On Defense Under State Law

7. Consumer Protection and Unfair Trade Practices Claims and

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2020 U.S. Dist. LEXIS 97215 *

IN RE: NIASPAN ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS

Prior History: In re Niaspan Antitrust Litig., 971 F. Supp. 2d 1346, 2013 U.S. Dist. LEXIS 132253 (J.P.M.L., Sept. 17, 2013)

CORE TERMS

brand, consumers, antitrust, uninjured, certification, ascertainability, Reply, predominance, methodology, overcharge, feasible, reliable, prescription, pharmaceutical, variations, co-payment, loyalists, reimbursement, pharmacies, enrichment, End-Payor, coupon, unjust, settlement, classwide, opines, pass-on, payor, subpoenas, rigorous