Corcoran et al v. CVS Health Corporation

Northern District of California, cand-4:2015-cv-03504

Exhibit 35

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0 Exhibit 35 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 4:15-cv-03504-YGR Document 436-10 Robert Filed 05/05/20 Page 2 of 10 Jenks July 28, 2016 1 Page 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 CASE No. 15-CV-3504-YGR 3 4 CHRISTOPHER CORCORAN, ELIZABETH GARDNER, TYLER CLARK, 5 MICHAEL NORKUS, ZULEMA AVIS, ROBERT GARBER, TONI ODORISIO, ROBERT GUARNIERI, ONNOLEE SAMUELSON, ROBERT 6 JENKS, DEBBIE BARRETT, CARL WASHINGTON, ROBERT PODGORNY, VINCENT GARGIULO, ZACHARY HAGERT, KEVIN CAULEY, LINDA 7 KRONE, CAROLYN CAINE, KEN BOLIN, WALTER WULFF, AMANDA GILBERT, AND GILBERT BROWN ON BEHALF OF THEMSELVES AND 8 ALL OTHER SIMILARLY SITUATED, 9 Plaintiffs, 10 -vs- 11 12 CVS PHARMACY, INC., 13 Defendant. _____________________________________________________ 14 VIDEOTAPED DEPOSITION OF ROBERT JENKS 15 16 Thursday, July 28, 2016 17 18 8:58 a.m. - 5:24 p.m. 19 20 Hampton Inn 9630 US Highway 441 21 Leesburg, Florida 34788 22 23 Stenographically Reported By: Jeana Kim, CRR, RMR, FPR, CLR 24 Certified Realtime Reporter U.S. Legal Support, Inc. 25 U.S. LEGAL SUPPORT (877) 479-2484 0 Case 4:15-cv-03504-YGR Document 436-10 Robert Filed 05/05/20 Page 4 of 10 Jenks July 28, 2016 30 to 33 Page 30 Page 32 1 MR. GILMORE: Objection. Form. Foundation. 1 chronological order? 2 The document speaks for itself. 2 Q. Sure. And I'm happy to help you, if that 3 BY MS. O'CONNOR: 3 would be helpful. 4 Q. You can answer. 4 A. It seems a little... 5 A. I'd have to really study this and write down 5 Q. A little tedious, I'm sure. 6 with a piece of paper and pencil the different dates 6 A. Yes, it does, since it's already in writing. 7 that you -- are listed on this document and put them in 7 MR. GILMORE: And on that very valid ground, 8 chronological order to answer that question. 8 I'm going to object to this question as harassing. 9 Q. Okay. 9 Also, object because the witness is being 10 A. If you want to give me paper and pencil, I'll 10 questioned about a document that is not the 11 write them all out and I'll try my best to answer your 11 operative pleading in the case. And that -- is 12 question. 12 being asked about transactions in which more 13 Q. I actually think that will be helpful for 13 complete information has been given in the 14 today. 14 interrogatory responses, as counsel knows. 15 A. Okay. 15 MS. O'CONNOR: And we will review all of 16 Q. So I will give you -- 16 those. 17 A. So your question, just so that I understand it 17 THE WITNESS: So I'm almost done writing down 18 thoroughly, is, you want me to tell you what this 18 the dates. Just to make sure, I'm writing the 19 document says in the order of sequence in which these 19 information that's already written down here, 20 pills were filled? 20 correct? You want me to start with line 510 on 21 Q. Yes. I actually think the exercise of writing 21 page 53 through line 20 -- line 535 on page 54; is 22 them down on a piece of paper will be helpful for the 22 that correct? 23 rest of the day, because the questions, you know, will 23 BY MS. O'CONNOR: 24 largely relate to these prescriptions. 24 Q. Those are the prescriptions I want you to 25 A. And everyone is fully aware that I don't have 25 make sure you have -- Page 31 Page 33 1 specific memories of these prescriptions? 1 A. And you want me to then put them in 2 Q. Yes. 2 chronological order, for some reason? 3 A. And there may or may not have been even 3 Q. Whatever will help you -- so I'm going to ask 4 others? 4 some questions throughout the day about these particular 5 Q. Right. 5 prescriptions. And I may at times refer to the six 6 A. Okay. But you want me to -- 6 prescriptions between February 23rd and July 13th. 7 Q. Yes. To the extent we need to refer later in 7 So just so that we don't have to come back to 8 the day to sort of the date range that's covered in this 8 a document each time that question comes up, I was 9 Complaint -- 9 hoping this exercise would help confirm for you that 10 A. Okay. 10 that is, in fact, the date range for these six and the 11 Q. -- and in other documents, as well as which 11 dates on which these six prescriptions were filled. 12 prescriptions are covered, I do think it would be 12 A. Okay. 13 helpful for you to have a reference -- 13 Q. Does that make sense? Is there a -- is there 14 A. You want me to chronologically write down what 14 something more helpful that we could do? Would you 15 this document already says, dates from January -- 15 prefer to -- 16 February 23rd? 16 A. I don't know. It seems a little -- you do 17 Q. What I would suggest, and you can decide what 17 whatever you have to do. I'll answer your questions to 18 would be helpful to you, but is if you'd just write down 18 the best of my ability. 19 each date that is stated in the Jenks prescription 19 Q. Okay. Okay. 20 paragraphs, so we have -- you have a list of the dates 20 MR. GILMORE: I'll -- 21 in front of you. 21 MR. GEYERMAN: That's all we ask. 22 A. Oh, on all of these? 22 MR. GILMORE: And I'll, again, object to this 23 Q. Just the ones from 510 to prescription five, 23 whole line of questioning as harassing, given that 24 which is at 534. 24 he's being asked to essentially recreate a document 25 A. And then you want me to put them in a 25 that's already in front of him. U.S. LEGAL SUPPORT (877) 479-2484 Case 4:15-cv-03504-YGR Document 436-10 Robert Filed 05/05/20 Page 5 of 10 Jenks July 28, 2016 78 to 81 Page 78 Page 80 1 Q. That's what I'm asking. Did you -- did you 1 A. I go to a completely different drugstore, 2 understand those copays were rising as a result of 2 another major chain. The prices are less than they were 3 SilverScript or as a result of CVS? 3 at the beginning. 4 MR. GILMORE: Objection. Form. Foundation. 4 The drug that was $8 or $20 is now $1 or $3. 5 Vague as to time and vague as to copays. 5 A drug that was $120 is now $21. 6 BY MS. O'CONNOR: 6 Q. And what -- I'm sorry. Go ahead. 7 Q. You can answer the question. 7 A. And I apologize. You have that information in 8 A. Repeat it. I'm sorry. 8 the -- in the booklets that we gave you copies of. 9 Q. Did you understand your copays were rising as 9 Q. Which information do you believe -- 10 a result of SilverScript, your insurance plan, or as a 10 A. The drug charges, the cost. 11 result of CVS? 11 Q. For your prescriptions? 12 MR. GILMORE: Objection. Form. Foundation. 12 A. You can look them up, yes. 13 THE WITNESS: Am I supposed to answer this 13 Q. Okay. What pharmacy are you using now? 14 question? 14 A. Walgreens. 15 MR. GILMORE: If you're able to. 15 Q. And how did you choose Walgreens over any 16 THE WITNESS: To me, they're the same. 16 other pharmacy when you made the switch from CVS? 17 SilverScript is CVS' drug coverage program. 17 A. Well, it's -- there's two major drugstores 18 BY MS. O'CONNOR: 18 here, Walgreens and CVS. And I didn't want to use CVS. 19 Q. I see what you're saying. 19 Q. Did you know what the prices of your 20 Then I'll ask the question a different way 20 prescription drugs would be at Walgreens under your new 21 because I see that's where the lack of clarification was 21 insurance before you chose to shop there? 22 on my part. 22 A. Each and every prescription? No. 23 I'm asking, did you understand your copays 23 When you select these on -- I became somewhat 24 were rising as a result of your SilverScript Insurance 24 educated, as I said, in 2014 about -- or actually 25 plan, which, as you say, is related to CVS, or as a 25 December 2015, about how you select these different Page 79 Page 81 1 result of the CVS pharmacy? 1 programs. They don't break down, that I remember, each 2 MR. GILMORE: Objection. Form. Foundation. 2 and every drug. Maybe they do; I don't remember it that 3 Mischaracterizes his prior testimony and calls for 3 way. But they give you a yearly cost and this is the 4 speculation. 4 least expensive for this group of medications and this 5 BY MS. O'CONNOR: 5 is the least expensive place for this group of 6 Q. You can answer. 6 medications. And you dictate to them what drugstores 7 A. I don't know how to answer it. Do I 7 that you want to go to. And that's how it works. 8 understand -- do I -- 8 Q. And so now that you're using an Aetna 9 Q. Yeah, who did you blame for the rising copays? 9 insurance plan and Walgreens pharmacy, you believe that 10 A. Well, when my -- I don't know how to 10 combination is giving you the least expensive copays for 11 differentiate if it's the same company under a different 11 the drugs you're filling prescriptions for? 12 name, just like we had the confusion earlier about 12 MR. GILMORE: Objection. Form. Foundation. 13 Aetna. 13 BY MS. O'CONNOR: 14 How you -- you know, it's the same -- I don't 14 Q. You can answer. 15 know how to separate the two. They're the same. 15 A. Repeat the question. 16 Q. Okay. But you're -- you are clear now on the 16 Q. Now that you're using an Aetna insurance plan 17 fact that once you switched from your SilverScript 17 and Walgreens pharmacy, do you believe that combination 18 Insurance plan to a different -- to an Aetna -- an Aetna 18 is giving you the least expensive copays for the drugs 19 insurance plan, you're now happier with your copays? 19 you're filling prescriptions for? 20 A. That's -- but I don't use CVS anymore. 20 A. For all of my drugs, yes. 21 Q. Okay. 21 Q. Collectively, you're saying? 22 A. At all. 22 A. Collectively. 23 Q. Not the pharmacies, either? 23 Q. When did you learn that SilverScript, your 24 A. No. 24 insurance plan, was affiliated with CVS? 25 Q. Okay. 25 A. Before I signed up with them. U.S. LEGAL SUPPORT (877) 479-2484 0 0 Case 4:15-cv-03504-YGR Document 436-10 Robert Filed 05/05/20 Page 8 of 10 Jenks July 28, 2016 118 to 121 Page 118 Page 120 1 A. Yes. 1 Q. Others? 2 MR. GILMORE: Objection to form. 2 A. There's a Wal-Mart, there's several Walgreens, 3 THE WITNESS: Oh, I'm sorry. 3 there's CVS. There are some small places by the 4 MR. GILMORE: Go ahead. 4 hospital I don't remember the names of. I think there's 5 THE WITNESS: There's -- to my knowledge and 5 two. 6 my general expertise, there are two major pharmacy 6 Q. Okay. 7 outlets in the nation, for all I know. That's 7 A. The names that come to mind are Wal-Mart -- or 8 Walgreens and CVS. 8 Walgreens and CVS. 9 BY MS. O'CONNOR: 9 Q. Okay. And what's the closest pharmacy you're 10 Q. And it's significant to you -- there is 10 aware of to your home in Leesburg today? 11 something significant to you about using a brand name or 11 A. I'm not sure who is closest. I think that 12 nationally known pharmacy? 12 there is one by the hospital that's closest I don't even 13 MR. GILMORE: Objection to form. 13 know the name of. It's a little, teeny place like 14 THE WITNESS: I think the answer would have to 14 Schmitt's (phonetic) Pharmacy or something. 15 be, there is to everyone, I would think. 15 Q. Right. 16 BY MS. O'CONNOR 16 A. And I think Walgreens and CVS are 17 Q. Do you know if Walgreens is an Illinois 17 approximately the same distance, but in different 18 company? 18 directions. 19 A. No, I don't know. 19 Q. Okay. Is there a Publix in Leesburg, that you 20 Q. So after you moved from Lombard to Mount Dora, 20 know of? 21 the next move you made was from Mount Dora to Leesburg; 21 A. Yes. 22 is that correct? 22 Q. Do you know if that's where your wife does 23 A. Correct. 23 your -- most of the grocery shopping, now that you live 24 Q. And starting in April 2015, you began using 24 in Leesburg? 25 the CVS pharmacy on 14th Street in Leesburg primarily; 25 A. Mostly or some of it. There's two, actually. Page 119 Page 121 1 is that -- am I understanding that right? 1 Q. And is that Publix further from your house or 2 A. I don't know the date. 2 closer to your house than the CVS pharmacy you used in 3 Q. Okay. When you moved to Leesburg and started 3 2014 and 2015? 4 using a CVS pharmacy in Leesburg, what caused you to 4 A. It's probably closer. It is closer. 5 choose CVS pharmacy? 5 Q. Did you mention there is also a Wal-Mart in 6 A. I was with SilverScript Insurance. 6 Leesburg? 7 Q. Were there other pharmacies in the Leesburg 7 A. There is. 8 area that you could shop at under your SilverScript 8 Q. Do you know if your wife ever does shopping 9 Insurance? 9 there? 10 A. Oh, I'm not trying to avoid answering you, but 10 A. She does. 11 it was my impression that if you used SilverScript 11 Q. Do you, personally, ever do shopping there? 12 Insurance, that you were best off to use CVS pharmacy 12 A. I have. 13 pricewise. 13 Q. Okay. And is that closer or farther than the 14 Q. You don't know whether other pharmacies might 14 CVS pharmacy you used in 2014 and 2015 while you were 15 also have been considered preferred pharmacies under 15 living in Leesburg? 16 your SilverScript Insurance plan? 16 A. Farther. 17 A. I don't know. 17 Q. When you moved to Leesburg, did you continue 18 Q. And I think I jumped in on you a minute ago. 18 to go back to Mount Dora, the CVS pharmacy in Mount Dora 19 You were beginning to answer my question. I'll ask it 19 to fill some of your prescriptions, do you remember? 20 again. 20 A. I have to explain in more detail. 21 Are there other pharmacies generally in the 21 Q. Sure. 22 Leesburg area, other than CVS pharmacy? 22 A. At the time that we bought the place here in 23 A. I'm sure there -- yes. 23 Leesburg, we were renting an apartment in Mount Dora and 24 Q. Can you think of any particular ones? 24 I had surgery. 25 A. Walgreens. I can think of Walgreens. 25 Q. Uh-huh. U.S. LEGAL SUPPORT (877) 479-2484 Case 4:15-cv-03504-YGR Document 436-10 Robert Filed 05/05/20 Page 9 of 10 Jenks July 28, 2016 250 to 253 Page 250 Page 252 1 when you filled a prescription? 1 SilverScript Insurance, you know, a subsidy of CVS, to 2 A. If, in fact, it saved me money -- and I'm 2 get me the lowest prices on prescription drugs through 3 still not sure I would have because, again, I was a 3 them. But evidently that's not necessarily the case. 4 member of SilverScript -- then I would have hoped that 4 Q. And you're not aware of a document that states 5 if they were aware of it and that -- "they," being, the 5 that; is that correct? 6 pharmacy department itself -- if they were aware of it, 6 A. No. 7 knowing that I'm with SilverScript, and that this could 7 Q. Do you believe that SilverScript Insurance 8 save me more money, I would hope they would have 8 Company had an obligation to get you the lowest price on 9 mentioned it to me. 9 prescription drugs at any of the network pharmacies that 10 Q. What would you have hoped they would do to 10 were ranked the same as CVS? 11 mention it to you? 11 MR. GILMORE: Objection. Form. Foundation. 12 A. What do I think -- what do I wish they would 12 Calls for a legal conclusion. 13 have done to mention it to me? 13 THE WITNESS: Until looking at this 14 Q. Right. 14 information that you just put in front of me that 15 A. Mention it to me. 15 it says EPEX, I really didn't -- I thought that it 16 Q. The pharmacist at the counter, you're saying? 16 was CVS. 17 A. Yes. 17 BY MS. O'CONNOR: 18 Q. If a pharmacist at a CVS counter had mentioned 18 Q. And the information you're referring to, just 19 the Health Savings Pass program to you, do you think 19 to be clear for the court reporter, is the retail 20 that would have been sufficient to notify you of it? 20 pharmacy's -- or network pharmacy's list in Defense 21 MR. GILMORE: Objection. Form. Foundation. 21 Exhibit 43; is that correct? 22 THE WITNESS: If he would have -- if he or she 22 A. It's either 42 or 43. 43, yes. 23 would have told me that, we have a program that 23 Q. Okay. If CVS had made information available 24 will save you money, you don't need to use your 24 to you about joining the Health Savings Pass program and 25 insurance card? Is -- 25 you just didn't see it or read it, do you fault CVS for Page 251 Page 253 1 BY MS. O'CONNOR: 1 that? 2 Q. Let me rephrase it. 2 MR. GILMORE: Objection. Form. Foundation. 3 If a CVS pharmacist had told you at the 3 Incomplete hypothetical. 4 pharmacy counter that the Health Savings Pass program 4 THE WITNESS: Could you repeat the question? 5 existed, in your view would that have satisfied CVS 5 BY MS. O'CONNOR: 6 pharmacy's responsibility to inform you of the Health 6 Q. Uh-huh. 7 Savings Pass program? 7 If CVS made information about the Health 8 A. Without any further clarification of the 8 Savings program available to you and you just didn't see 9 program, no. 9 it or didn't read it, do you fault CVS for that? 10 Q. What clarification of the program do you 10 MR. GILMORE: Objection. Form. Foundation. 11 believe CVS ought to have given you? 11 Incomplete hypothetical. Assumes facts not in 12 A. What its function is, what it will do. 12 evidence. 13 Q. And is that -- oh, I'm sorry. Go ahead. 13 THE WITNESS: It's difficult for me to answer 14 A. If somebody said to you, here, I can save you 14 because I don't know how they presented it. If it 15 money, you don't need to use your insurance card, what 15 was a -- you know, something in the corner of a 16 would you do? You would say, okay. 16 countertop over here or if it was a large document 17 Q. So you're saying that the actions you think 17 that was mailed to me that said important. So I 18 CVS needed to take to inform you of the Health Savings 18 can't really -- how do I answer that? 19 Pass were to inform you that there was a way for you to 19 BY MS. O'CONNOR: 20 save money and that you didn't need to use your 20 Q. If it was a large document mailed to you that 21 insurance? 21 said important, do you think that would have been 22 A. If that's true. And again, I still don't know 22 sufficient? 23 that that's true. 23 A. Yes. 24 Q. Okay. 24 Q. And if it were a pamphlet on the side of the 25 A. I was under the impression that I paid 25 counter at the pharmacy, would that have been U.S. LEGAL SUPPORT (877) 479-2484 0