Corcoran et al v. CVS Health Corporation

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

Exhibit D

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5 Exhibit D 5 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 - - - - - - - - - - - - - -x 4 CHRISTOPHER CORCORAN,: 5 et al.,,: 6 Plaintiffs,: Civil Action No. 7 v.: 3:15-cv-03504-YGR 8 CVS PHARMACY, INC.,: 9 Defendant. 10 - - - - - - - - - - - - - -x 11 12 DEPOSITION OF FRANCEEN SPADACCINO, RPh. 13 NEW YORK, NEW YORK 14 TUESDAY, DECEMBER 13, 2016 15 8:38 A.M. 16 17 18 19 20 Job No.: 130133 21 Pages: 1 - 80 22 Reported By: Nancy Mahoney, CCR/RPR 23 24 25 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 2 1 Deposition of FRANCEEN SPADACCINO, RPh., held at 2 the offices of: 3 4 5 MORGAN, LEWIS & BOCKIUS LLP 6 101 Park Avenue 7 New York, New York 10178 8 212.309.6000 9 10 11 12 13 14 Pursuant to subpoena, before Nancy Mahoney, Notary 15 Public in and for the state of New York. 16 17 18 19 20 21 22 23 24 25 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 6 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: Here begins disk number 08:37:35 3 one of the videotaped deposition of Franceen 08:37:39 4 Spadaccino in the matter of Christopher Corcoran, et 08:37:43 5 al, v CVS Pharmacy, Inc., in the United States 08:37:48 6 District Court, Northern District of California, Case 08:37:50 7 No. 3:15-cv-03504-YGR. 08:37:56 8 Today's date is December 13th, 2016; the 08:37:59 9 time is approximately 8:38 a.m. The videographer 08:38:04 10 today is Charlie Bowman representing Planet Depos. 08:38:10 11 This video deposition is taking place at Morgan, 08:38:13 12 Lewis, 101 Park Avenue, New York, New York. 08:38:17 13 Would counsel please introduce yourselves 08:38:20 14 for the record. 08:38:22 15 MR. SITARCHUK: Eric Sitarchuk for the 08:38:23 16 witness. 08:38:26 17 MR. LEWIS: Richard Lewis for the 08:38:26 18 plaintiff. 08:38:28 19 MS. MAINIGI: Enu Mainigi and Colleen 08:38:28 20 McNamara from Williams & Connolly for the defendants. 08:38:32 21 THE VIDEOGRAPHER: The court reporter today 08:38:36 22 is Nancy Mahoney representing Planet Depos. Would 08:38:37 23 the court reporter please swear in the witness. 08:38:38 24 FRANCEEN SPADACCINO, RPh., 08:38:40 25 after having been first duly sworn or affirmed to PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 7 1 testify to the truth, was examined and 2 testified as follows: 3 EXAMINATION BY COUNSEL FOR THE PLAINTIFF BY 4 RICHARD LEWIS: 5 Q Good morning, Ms. Spadaccino. 08:38:52 6 A Good morning, Mr. Lewis. 08:38:54 7 Q Good morning. We met briefly before the 08:38:56 8 deposition. I'm one of the attorneys for the 08:38:59 9 plaintiffs in this case, and I'm going to take your 08:39:00 10 deposition this morning. 08:39:03 11 Have you ever had or given a deposition 08:39:04 12 before? 08:39:08 13 A No, this is the first time. 08:39:08 14 Q Okay. Well, I'm sure you've talked to your 08:39:09 15 counsel, but I'll just mention a few of the ground 08:39:12 16 rules I'd like to follow so we're on the same page 08:39:16 17 and see if you have any questions about those. 08:39:19 18 I'm going to be asking the questions, 08:39:21 19 you're going to be giving answers. It's important 08:39:24 20 that we not speak at the same time. So I'll try and 08:39:26 21 be quiet, and your counsel will help me if I cross 08:39:31 22 the line, when you're talking. Same for you, if you 08:39:34 23 could allow me to finish my question before you start 08:39:39 24 your answer, even if you know exactly what my 08:39:41 25 question is going to be, just for the record let me 08:39:44 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 19 1 Q And isn't it true that that type of term 08:53:48 2 was in every contract that Medco had with CVS when 08:53:52 3 you were at Medco? 08:53:56 4 MR. SITARCHUK: Objection to form. 08:53:57 5 MS. MAINIGI: Objection. 08:53:59 6 A I can't say that's correct because I'm not 08:53:59 7 aware of every contract that CVS had with Medco. 08:54:02 8 Q Are you aware of any contract that CVS had 08:54:05 9 with Medco that didn't have lesser of pricing? 08:54:09 10 MR. SITARCHUK: Objection to form. 08:54:13 11 A There were many contracts that I did not 08:54:14 12 see, so I could not answer that. 08:54:17 13 Q I'm just asking you as to the ones you did 08:54:19 14 see? 08:54:23 15 A I don't recall if they all had it or not, 08:54:28 16 I'm sorry. 08:54:31 17 Q Can you remember an instance where Medco 08:54:33 18 had a contract with CVS and CVS was able to be 08:54:37 19 reimbursed at something greater than the U&C? 08:54:43 20 MS. MAINIGI: Objection. 08:54:47 21 A I'm not aware of all the contracts that 08:54:53 22 Medco had with CVS. 08:54:55 23 Q But all I'm asking about is your own 08:54:56 24 experience. You were at Medco from 1998 to 2013, 08:54:59 25 correct? 08:55:05 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 20 1 A That's correct. 08:55:05 2 Q And during that time you had dealings with 08:55:05 3 CVS, correct? 08:55:08 4 A Not the entire time, no. 08:55:10 5 Q During some of the time? 08:55:12 6 A Correct. 08:55:14 7 Q And I'm asking about your experience with 08:55:14 8 CVS. Do you have any recollection of a situation 08:55:16 9 where CVS would be reimbursed for generic 08:55:20 10 prescription drugs at a level higher or greater than 08:55:25 11 the U&C? 08:55:28 12 MS. MAINIGI: Objection. 08:55:29 13 A I don't recall there being a contract like 08:55:39 14 that, but there were many contracts and I only saw a 08:55:43 15 small number of them. There was probably more 08:55:47 16 contracts that I was not privy to than the ones that 08:55:53 17 I saw. 08:55:56 18 Q Were you generally involved with the issue 08:55:57 19 of reimbursing pharmacies for generic drug costs? 08:56:02 20 A No. 08:56:09 21 MR. SITARCHUK: Objection to form. 08:56:09 22 A No. 08:56:11 23 Q What was your main responsibility? 08:56:11 24 A Provider relations, so it was maintaining 08:56:13 25 the relationship with the chain entities and the 08:56:16 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 23 1 Q So if somebody had a concern that CVS was 08:58:48 2 not reporting honest and true U&C prices, they 08:58:53 3 wouldn't come to you? 08:58:58 4 A That would be correct. 08:58:59 5 MS. MAINIGI: Objection. 08:59:00 6 Q Would you hear about it? 08:59:01 7 A I worked in the department and I would 08:59:03 8 probably hear about it, but that would not be 08:59:06 9 something that would come to me directly. 08:59:08 10 Q And you had no responsibility in your 08:59:10 11 position to assure that -- to assure your clients 08:59:13 12 that CVS was reporting honest and true U&C prices? 08:59:18 13 A I didn't have interaction with the clients. 08:59:23 14 I wasn't on the client side. 08:59:27 15 Q Thank you. Let me try and rephrase it. 08:59:28 16 In your position at CVS, you didn't -- I'm 08:59:31 17 sorry. 08:59:37 18 In your position at Medco, you didn't have 08:59:37 19 any responsibility to assist Medco in assuring its 08:59:39 20 clients that CVS was charging honest and true -- 08:59:45 21 reporting honest and true U&C prices? 08:59:49 22 MS. MAINIGI: Objection. 08:59:53 23 A I was not responsibile for setup of the 08:59:54 24 pricing for the adjudication, so I would not have had 08:59:57 25 a conversation with the client regarding how the 09:00:01 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 24 1 pharmacies were set up. That was not my role to 09:00:05 2 speak to a client. 09:00:09 3 Q At Medco did you have any interaction with 09:00:18 4 pricing of generic drugs under Medicare Part D? 09:00:22 5 A Could you explain what you mean by that. 09:00:29 6 Q Did you talk to CVS about how they were 09:00:32 7 reporting U&C prices for Medicare Part D programs? 09:00:35 8 A No, I did not. 09:00:41 9 Q Was that part of your responsibility? 09:00:43 10 A That was not part of my responsibility. 09:00:44 11 That was someone else's responsibility, not mine. 09:00:47 12 Q Do you know who -- whose responsibility it 09:00:49 13 was when you were at Medco? 09:00:52 14 A Cal Corum. 09:00:55 15 Q Are you familiar with the requirements of 09:01:01 16 Medicare -- of CMS -- that CMS places on the 09:01:04 17 reporting of U&C prices for Medicare Part D 09:01:09 18 beneficiaries? 09:01:13 19 A I do have knowledge of that. 09:01:14 20 Q Is it correct that CMS requires that 09:01:18 21 providers report -- I'm sorry, let me start over. 09:01:21 22 Is it correct that CMS requires that 09:01:27 23 providers not charge Medicare Part D beneficiaries 09:01:29 24 any rates higher than the U&C? 09:01:36 25 MS. MAINIGI: Objection. 09:01:38 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 42 1 Q Do you think if he paid a retail price 09:24:37 2 three times higher -- let me withdraw that. 09:24:42 3 Do you know if during the years you were at 09:24:48 4 Medco when the CVS HSP program was in place, if CVS 09:24:54 5 routinely offered HSP prices to persons outside the 09:24:59 6 program? 09:25:04 7 MS. MAINIGI: Objection. 09:25:06 8 A I'm not aware of that. 09:25:06 9 Q Did you make any effort to find out? 09:25:07 10 A That was not within my realm of 09:25:10 11 responsibility. So, no, I did not. 09:25:13 12 Q Did anybody at Medco, to your knowledge, 09:25:15 13 make any effort to find out? 09:25:18 14 A I do not know. 09:25:19 15 Q Do you know if Medco had access to CVS's 09:25:20 16 cash price transaction data? 09:25:23 17 A Medco only had access to the data that CVS 09:25:28 18 transmitted to Medco. They did not have access to 09:25:31 19 CVS's retail pharmacy data. 09:25:34 20 Q So if they didn't have access to the data, 09:25:38 21 there would be no way for them to know if CVS was 09:25:40 22 reporting honest and true U&C prices? 09:25:45 23 MS. MAINIGI: Objection. 09:25:48 24 MR. SITARCHUK: Objection to form. 09:25:49 25 Q Correct? 09:25:49 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 43 1 A Medco had access to the data that CVS was 09:25:51 2 transmitting through the system and Medco had a 09:25:55 3 pharmacy audit team that would audit the prescription 09:25:59 4 claims. 09:26:03 5 Q But the audit team did not have access to 09:26:03 6 the cash transaction data at CVS, correct? 09:26:06 7 A I'm not sure. I wasn't in the audit 09:26:08 8 department. They would have access to the data that 09:26:11 9 was transmitted to Medco and they would do onsite 09:26:17 10 audits. 09:26:22 11 Q Right, and the data transmitted to Medco 09:26:22 12 would be limited to the beneficiary of Medco -- 09:26:24 13 beneficiaries the Medco clients, correct? 09:26:28 14 MS. MAINIGI: Objection. 09:26:31 15 A The data that Medco received would be based 09:26:32 16 on Medco clients. 09:26:35 17 Q And those are people with insurance, 09:26:37 18 correct, or a pharmacy benefit plan? 09:26:39 19 A That would be correct. 09:26:42 20 Q That doesn't include cash-paying public 09:26:43 21 people who walk in off the street and pay a retail 09:26:49 22 price? 09:26:52 23 MS. MAINIGI: Objection. 09:26:53 24 A Cash-paying retail price would be based on 09:26:57 25 that particular pharmacy. So Medco would not have -- 09:27:02 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 54 1 Q So you don't know if your changed 09:52:48 2 definition had any impact on what pharmacies did? 09:52:52 3 MS. MAINIGI: Objection. 09:52:55 4 A I did not -- I did not have knowledge. 09:52:57 5 Q Do you know if CVS reaped a financial 09:53:09 6 benefit in terms of revenue as a result of the 09:53:15 7 decision that you made that membership-based generic 09:53:19 8 program prices did not need to be submitted as the 09:53:23 9 U&C? 09:53:25 10 A I do not have knowledge of what CVS made as 09:53:27 11 far as profits. 09:53:34 12 Q Do you know if the decision that you made 09:53:35 13 that membership-based prices did not need to be 09:53:38 14 reported as the U&C led to beneficiaries of Medco 09:53:40 15 clients paying higher prices for generic drugs? 09:53:47 16 MS. MAINIGI: Objection. 09:53:50 17 A I do not have knowledge whether members 09:53:51 18 paid higher prices for generic drugs. 09:53:54 19 Q Did you do any financial or mathematical or 09:53:56 20 statistical analysis to see what the impact would be 09:54:00 21 of this decision on the co-pays paid by Medco's 09:54:04 22 clients' beneficiaries? 09:54:11 23 MS. MAINIGI: Objection. 09:54:14 24 A In my position at Medco I was not 09:54:14 25 responsible for data analysis. 09:54:17 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 76 1 Q Turning to PX-551, the 2009 manual, at Page 10:32:10 2 50 under Record Access, do you have that? 10:32:21 3 A I have it in front of me. 10:32:36 4 Q You were asked a question about the first 10:32:38 5 sentence under Record Access, Documents, do you 10:32:41 6 recall that? 10:32:43 7 A Yes, I do. 10:32:43 8 Q As part of your answer you said, according 10:32:43 9 to what is written here: Is it fair to say that you 10:32:46 10 have no personal knowledge of any information CVS 10:32:52 11 provided to Medco auditors? 10:32:56 12 A That would be correct. I was not in the 10:32:59 13 audit department, so I would not know what 10:33:02 14 information CVS provided to the auditors. 10:33:04 15 Q And turning to the next page, you were 10:33:06 16 asked a question about the first sentence on that 10:33:12 17 page, specifically about records not directly related 10:33:15 18 to Medco. 10:33:19 19 Do you see that? 10:33:19 20 A I do see that, yes. 10:33:21 21 Q And you have no personal knowledge if CVS 10:33:22 22 provided any records whatsoever to Medco regarding 10:33:26 23 records that were not directly related to Medco? 10:33:30 24 A I was not in the pharmacy audit department, 10:33:33 25 so I would not be aware of what records the pharmacy 10:33:36 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 77 1 auditors obtained from CVS during the course of their 10:33:39 2 audits. 10:33:42 3 Q And you were asked a question about cash 10:33:45 4 transaction data. You have no personal knowledge 10:33:50 5 whatsoever as to whether CVS provided its cash 10:33:53 6 transaction data to Medco, correct? 10:33:58 7 A I was not in the audit department, so I 10:34:02 8 would not have information regarding what data was 10:34:05 9 submitted to our auditors upon their request. 10:34:07 10 Q And that would include CVS cash transaction 10:34:09 11 data, correct? 10:34:12 12 A It would include any data that they 10:34:14 13 requested, correct. 10:34:18 14 Q On Page 45 of this document there's a 10:34:20 15 section called Professional Audits. Under 10:34:22 16 Professional Audits it says, "Medco maintains a 10:34:44 17 pharmacy audit program on behalf of and as a service 10:34:46 18 to sponsors." 10:34:49 19 Do you see that? 10:34:51 20 A I do. 10:34:52 21 Q What does the word sponsors mean? 10:34:52 22 A Sponsors would be the Medco clients. 10:34:55 23 Q And Medco clients like employers who had 10:34:58 24 employees who were beneficiaries of the prescription 10:35:02 25 drug program, correct? 10:35:05 PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM 5 Transcript of Franceen Spadaccino, RPh. Conducted on December 13, 2016 80 1 C E R T I F I C A T E 2 3 I, Nancy Mahoney, Certified Court Reporter and 4 Registered Professional Reporter and Notary Public 5 within and for the State of New York, the officer 6 before whom the foregoing deposition was taken, do 7 hereby certify that the foregoing transcript is a 8 true and correct record of the testimony given; that 9 said testimony was taken by me stenographically and 10 thereafter reduced to typewriting under my direction; 11 that reading and signing was not requested; and that 12 I am neither counsel for, related to, nor employed by 13 any of the parties to this case and have no interest, 14 financial or otherwise, in its outcome. 15 IN WITNESS WHEREOF, I have hereunto set my hand and 16 affixed my notarial seal this 14th Day of December, 17 2016. 18 19 20 21 22 My commission expires: June 10, 2018 23 24 NOTARY PUBLIC IN AND FOR 25 THE STATE OF NEW YORK PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM