Corcoran et al v. CVS Health Corporation

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

OPPOSITION/RESPONSE (re [440] MOTION in Limine) Omnibus Opposition to Plaintiffs' Motions in Limine filed by CVS Pharmacy, Inc.

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4 Enu Mainigi (admitted pro hac vice) 1 Grant A. Geyerman (admitted pro hac vice) 2 WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. 3 Washington, DC 20005 4 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 5 Edward W. Swanson (Cal. Bar No. 159859) 6 August Gugelmann (Cal. Bar No. 240544) 7 SWANSON & MCNAMARA LLP 300 Montgomery Street, Suite 1100 8 San Francisco, CA 94104 Telephone: (415) 477-3800 9 Facsimile: (415) 477-9010 10 Attorneys for Defendant CVS Pharmacy, Inc. 11 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 Christopher Corcoran, et al., Case No. 15-cv-03504-YGR 17 Plaintiffs, CLASS ACTION 18 v. CVS PHARMACY, INC.'S 19 OMNIBUS OPPOSITION TO CVS Pharmacy, Inc., PLAINTIFFS' MOTIONS IN LIMINE 20 Defendant. NOS. 1–10 21 Date: May 13, 2020 22 Time: 9:30 a.m. Courtroom: 1 23 Judge: Hon. Yvonne Gonzalez Rogers 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO PLAINTIFFS' CASE NO. 15-CV-03504-YGR MOTIONS IN LIMINE 4 1 TABLE OF CONTENTS 2 3 TABLE OF AUTHORITIES .......................................................................................................... ii 4 INTRODUCTION ...........................................................................................................................1 5 I. MOTION #1: PBM EMPLOYEE TESTIMONY......................................................................2 6 A. The Employees' Individual Testimony Is Relevant and Admissible...................................2 B. The Employees' Testimony Is Not Unfairly Prejudicial or Confusing ...............................3 7 C. The Employees' Testimony Is Based on Personal Knowledge. ..........................................4 8 II. MOTION #2: OTHER PHARMACIES' AND GOVERNMENT PAYORS' POSITIONS .....6 9 A. The U&C Practices of Other Pharmacies Are Relevant ......................................................7 10 B. Contemporaneous Statements and Actions of Government Payors Are Relevant ..............8 11 III. MOTION #3: PLAINTIFFS' PURCHASES FROM OTHER PHARMACIES .....................10 12 IV. MOTION #4: "CUMULATIVE" EXPERT TESTIMONY ...................................................13 13 A. The Proposed Testimony Is Not Duplicative. ....................................................................13 B. The Motion Interferes with CVS's Right to Present Its Defense.......................................16 14 V. MOTION #5: REFERENCES TO LAWYERS .......................................................................17 15 A. References to "Lawyer Driven" Litigation ........................................................................17 16 B. Plaintiffs' Circumstances for Retaining Counsel ...............................................................19 17 VI. MOTION #6: CLASS REPRESENTATIVES' INCENTIVE AWARDS ..............................21 18 VII. MOTION #7: THE IMPLICATION OF THE SIZE OF AN OVERCHARGE ................23 19 VIII. MOTION #8: CVS'S "GOOD ACTS" ..............................................................................24 IX. MOTION #9: CROSS-EXAMINING EXPERTS WITH OPINIONS "NOT 20 PRESENTED" .........................................................................................................................25 21 X. MOTION #10: DEPOSITION DESIGNATIONS...................................................................28 22 CONCLUSION……………………..............................................................................................30 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE i 4 1 TABLE OF AUTHORITIES 2 FEDERAL CASES 3 Antoninetti v. Chipotle Mex. Grill, Inc., 2007 WL 3333109 (S.D. Cal. Nov. 8, 2007) .................16 4 Blue Cross & Blue Shield v. Philip Morris, Inc., 199 F.R.D. 487 (E.D.N.Y. 2001) .....................29 5 Bowe v. Pub. Storage, 2015 WL 10857339 (S.D. Fla. June 2, 2015)............................................18 6 Calvert v. Ellis, 2015 WL 732523 (D. Nev. Feb. 20, 2015) ....................................................14, 15 7 Corcoran v. CVS Health Corp., 2017 WL 1065135 (Mar. 21, 2017) .................................6, 17, 25 8 Corcoran v. CVS Health Corp., 2017 WL 3873709 (N.D. Cal. Sept. 5, 2017) ..................... passim 9 Corcoran v. CVS Health Corp., 779 F. App'x 431 (9th Cir. 2019)...............................................25 10 Corcoran v. CVS Health Corp., No. 17-16996 (9th Cir. June 4, 2018)...........................................8 11 County of Maricopa v. Office Depot Inc., 2019 WL 5066808 (D. Ariz. Oct. 9, 2019) ...................9 12 ECD Inv'r Grp. v. Credit Suisse Int'l, 2017 WL 3841872 (S.D.N.Y. Sept. 1, 2017) .....................7 13 Hart v. RCI Hosp. Holdings, Inc., 90 F. Supp. 3d 250 (S.D.N.Y. 2015).......................................18 14 In re Gen. Motors LLC Ignition Switch Litig., 2016 WL 4493863 15 (S.D.N.Y. Aug. 24, 2016) ..................................................................................................28, 29 16 In re Prempro Prod. Liab. Litig., 2012 WL 13034062 (E.D. Ark. Apr. 9, 2012) .........................26 17 In re Tylenol Mktg., 2016 WL 3125428 (E.D. Pa. June 3, 2016) ..................................................29 18 Indep. Tr. Corp. v. Fid. Nat'l Title Ins. Co., 577 F. Supp. 2d 1023 (N.D. Ill. 2008).....................20 19 Kamal v. Eden Creamery, LLC, 2019 WL 2617041 (S.D. Cal. June 26, 2019) ............................23 20 Kie v. Williams, 2016 WL 6208692 (W.D. La. Oct. 23, 2016) .....................................................19 21 Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595 (5th Cir.2000) ..........................................6 22 Lewis v. Ethicon (In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig.), 2014 WL 505234 23 (S.D.W. Va. Feb. 5, 2014) .......................................................................................................19 24 McConnell v. United States, 393 F.2d 404 (5th Cir. 1968) ...........................................................26 25 Needham v. Innerpac, Inc., 2006 WL 2710617 (N.D. Ind. Sept. 19, 2006) ....................................8 26 Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611 (D.N.J. 1989) ....................................................26 27 Rambus Inc. v. Samsung Elecs. Co., Ltd., 2008 WL 2944892 (N.D. Cal. July 16, 2008) ...............3 28 Ricks v. Mayatoshi, 2017 WL 1363306 (D. Haw. Apr. 12, 2017) ...................................................9 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE ii 4 1 Rodriguez v. County. of Stanislaus, 2010 WL 2720940 (E.D. Cal. July 8, 2010) ...................13, 14 2 Roling v. E*Trade Secs. LLC, 860 F. Supp. 2d 1035 (N.D.Cal.,2012) ...........................................7 3 Samsung Elecs. Co. v. NVIDIA Corp., 2016 WL 754547 (E.D. Va. Feb. 24, 2016) .....................18 4 SEC v. Sabhlok, 2010 WL 2944255 (N.D. Cal. July 23, 2010) .......................................................6 5 SEC v. Singer, 786 F. Supp. 1158 (S.D.N.Y. 1992) ........................................................................5 6 Sempra Energy v. Marsh USA, Inc., 2008 WL 11335050 (C.D. Cal., Oct. 15, 2008) ....................3 7 U.S. v. Frantz, 2004 WL 5642909 (C.D. Cal. Apr. 23, 2004) .........................................................5 8 United Mercury Mines Co. v. Bradley Min. Co., 259 F.2d 845 (9th Cir. 1958) ..............................7 9 United States v. Abel, 469 U.S. 45 (1984), ....................................................................................21 10 United States v. Harris, 185 F.3d 999 (9th Cir. 1999)...................................................................21 11 Vaughan Furniture Co. v. Featureline Mfg., 156 F.R.D. 123 (M.D.N.C. 1994)...........................26 12 Velasquez v. United States, 1993 WL 45306 (9th Cir. Feb. 23, 1993) ..........................................26 13 Verinata Health, Inc. v. Ariosa Diagnostics, Inc., 329 F. Supp. 3d 1070 (N.D.Cal., 2018) ...........3 14 Wendorf v. Landers, 755 F. Supp. 2d 972 (N.D. Ill. 2010) .............................................................8 15 Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2010 WL 11505684 (C.D. Cal. Jan. 25, 2010) 21 16 STATE CASES 17 61st Garage, Inc. v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 (1968) ...............................................7 18 Bowen v. Eli Lilly & Co., Inc., 557 N.E. 2d 739 (Mass. 1990)......................................................20 19 Doe v. Roe, 955 P.2d 951 (Ariz. 1998) ..........................................................................................20 20 Dunlap v. Jimmy GMC, 666 P.2d 83 (Ariz. Ct. App. 1983) ............................................................8 21 Gutierrez v. Carmax Auto Superstores Cal., 248 Cal. Rptr. 3d 61 (Ct. App. Feb. 22, 2018) .......11 22 Kalpake v. Regas, 2018 Il App ................................................................................................11, 23 23 Kattar v. Demoulas, 739 N.E.2d 246 (Mass. 2000) .........................................................................8 24 Stutman v. Chem. Bank, 731 N.E.2d 608 (N.Y. 2000) ............................................................11, 23 25 OTHER AUTHORITIES 26 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 611.02 (3d ed. 27 2020) ........................................................................................................................................16 28 Joseph M. McLaughlin, 3 Federal Evidence Practice Guide § 13.00 (2020) ...............................16 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE iii 4 1 INTRODUCTION 2 Plaintiffs' strategy is clear from their motions in limine. Motion by motion, Plaintiffs are 3 seeking to withhold from the jury evidence that provides important context concerning the issues it 4 will be called upon to answer at trial—evidence that will allow the jury to understand why CVS should 5 prevail on the merits. 6 Right off the bat (Motion #1), Plaintiffs seek an order excluding the testimony from pharmacy 7 benefit manager ("PBM") employees that this Court at summary judgement found was relevant and 8 admissible—testimony from eight employees who speak to how their employers understood the phrase 9 "usual and customary" in their contracts with CVS. Plaintiffs are also asking that the jury not be 10 informed that others in the industry—pharmacies, government payors, experts—understand "usual and 11 customary" exactly as CVS does (Motions ## 2 and 4), and that CVS be precluded from cross- 12 examining Plaintiffs' experts with their own contradictory statements on that topic (Motion #9). 13 Plaintiffs also wish to prohibit defense counsel from informing the jury of the truth that underlies this 14 case: Plaintiffs' basic premise—that Health Savings Pass ("HSP") prices are U&C prices—was 15 invented for litigation (Motion #5). 16 Plaintiffs also want to withhold from the jury evidence about themselves: evidence revealing 17 where Plaintiffs purchased prescriptions other than at CVS pharmacies, why they made purchases at 18 those other pharmacies, and why obtaining the lowest price was not always the decisive factor in 19 where they chose to shop (Motions ## 3 and 7). At trial, CVS should be allowed to introduce this 20 evidence of Plaintiffs' "purchase behavior" because it supports CVS's defense to essential elements of 21 Plaintiffs' claims, such as "materiality," "reliance," or "unfair" conduct. 22 The Court should deny Plaintiffs' motions in limine, in whole or in part, as set forth below. 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 1 4 1 I. MOTION #1: PBM EMPLOYEE TESTIMONY 2 Plaintiffs are rearguing issues the Court has already squarely decided against them. At the 3 summary judgment stage, Plaintiffs challenged the admissibility of testimony from eight current or 4 former employees of the five PBMs whose contracts define "usual and customary" ("U&C") and that 5 will be the focus of the trial. The Court rejected Plaintiffs' arguments. The Court held that the witness 6 testimony was admissible even through the witnesses appeared in their individual capacities, not as 7 30(b)(6) witnesses; and that each witness had personal knowledge of how their employers understood 8 U&C pricing. Corcoran v. CVS Health Corp., 2017 WL 3873709, at *13 (N.D. Cal. Sept. 5, 2017) 9 ("While the majority of the declarants and deponents were not designated as corporate representatives 10 pursuant to Federal Rule of Civil Procedure 30(b)(6), that does not necessarily render their testimony 11 as lacking in foundation."); id. at *13–15 (recounting personal knowledge). 1 The Ninth Circuit's 12 opinion did not disturb the Court's rulings on these points, and those rulings are now law of the case. 13 Fast forward to today. Plaintiffs' Motion #1 seeks to exclude the exact same testimony, on two 14 of the same three grounds. Notably, Plaintiffs concede that the PBMs' understanding of the meaning 15 of U&C in their contracts with CVS is relevant to the jury's task of interpreting those contracts. Mot. 16 9. Indeed, it is fundamental to CVS's defense that all parties to the relevant contracts agreed that HSP 17 prices were not U&C prices. Yet, Plaintiffs ask the Court to exclude the testimony from all eight PBM 18 employees merely because (1) their depositions were not Rule 30(b)(6) depositions and (2) the jury 19 could confuse their individual testimony with Rule 30(b)(6) testimony capable of binding the PBM as 20 a matter of law. Plaintiffs also ask the Court to exclude testimony from the five PBM witnesses from 21 Optum and Medco because, supposedly, (3) they lack personal knowledge of their PBM's position 22 about U&C pricing. The Court was correct to reject these arguments before, and it should do so again. 23 A. The Employees' Individual Testimony Is Relevant and Admissible 24 Plaintiffs argue that the Court should bar the eight employees from testifying at trial because 25 "these witnesses testified [at deposition] solely in their individual capacities," not as Rule 30(b)(6) 26 1 27 The Court also noted the depositions proceeded as individual, rather than 30(b)(6), depositions "due to plaintiffs' strategic decisions." Id. at *13 n.14. While Plaintiffs initially noticed the depositions of 28 the employees to be both individual depositions and 30(b)(6) depositions for their employers, after one such deposition elicited harmful evidence, Plaintiffs pulled the Rule 30(b)(6) portions of the notices. CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 2 4 1 witnesses. Mot. 9 (emphasis in original). Because an employee testifying in his individual capacity 2 does not "testify on behalf of or bind" his employer, id., the argument goes, the individual's testimony 3 is irrelevant at trial. This is wrong. The law is crystal clear on this point: admissibility of a witness's 4 testimony does not depend on the witness being a 30(b)(6) designee. Corcoran, 2017 WL 3873709, at 5 *13 n.14 ("arguments [distinguishing between Rule 30(b)(6) vs. individual testimony] pertain to the 6 persuasiveness of the. . . evidence") (emphases added); see also, e.g., Verinata Health, Inc. v. Ariosa 7 Diagnostics, Inc., 329 F. Supp. 3d 1070, 1085 (N.D.Cal., 2018) ("[A] witness's own understanding of 8 a contract may be relevant to its interpretation when that understanding is not simply a 9 private interpretation, but rather is founded in personal knowledge of the negotiations and the parties' 10 expressed intent.") (quotes omitted); Sempra Energy v. Marsh USA, Inc., 2008 WL 11335050, at *14 11 (C.D. Cal., Oct. 15, 2008) (admitting employee's "general understanding of and implementation of 12 [third party's] policies relevant to [plaintiff's] situation" based on employee's "particularized 13 knowledge"). 14 Evidence is relevant so long as it "has any tendency" to make a fact of consequence "more or 15 less probable than it would be without the evidence." Fed. R. Evid. 401. This is an "exceedingly low" 16 standard, which the employees' testimony easily meets. Rambus Inc. v. Samsung Elecs. Co., Ltd., 17 2008 WL 2944892, at *1 (N.D. Cal. July 16, 2008). As the Court previously recognized, "[t]he term 18 at issue—i.e., 'Usual and Customary'—necessarily requires an understanding of what is 'usual' and 19 'customary' between the parties and within the industry." Corcoran, 2017 WL 3873709, at *12. 20 Through their employment at the PBMs, the employees learned how the PBMs understood the 21 meaning of U&C pricing as applied to membership programs. Id. Such evidence is indisputably 22 relevant and admissible to help the jury interpret the U&C definitions in the PBM contracts. Plaintiffs 23 cannot prevent the jury from hearing the testimony merely because it does not "bind" the PBM as 24 testimony of a Rule 30(b)(6) witness would. 25 B. The Employees' Testimony Is Not Unfairly Prejudicial or Confusing 26 Citing Rule 403, Plaintiffs claim that allowing the employees to testify "would prejudice 27 Plaintiffs and mislead the jury." Mot. 9. That is wrong. 28 First, Rule 403 can only bar evidence that is "unfairly prejudicial." That the employee's CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 3 4 1 testimony tends to establish a proposition that Plaintiffs dislike—that their employers did not 2 understand U&C prices to encompass membership program prices like HSP—does not mean the 3 testimony is "unfairly" prejudicial. In any event, the probative value of the evidence far outweighs 4 any conceivable prejudice, unfair or not. The first-hand observations of the PBM employees is as 5 probative and important as any testimony the jury will hear in this trial. 6 Second, Plaintiffs' speculation that jurors will conflate the employees' "individual" testimony 7 with "entity" testimony of the PBM is unpersuasive and does not justify exclusion under Rule 403. 8 CVS will not argue that the employees' testimony is Rule 30(b)(6) testimony or otherwise has the 9 force of law to bind the PBMs. 10 If Rule 403 required the exclusion of an employee's testimony whenever a juror might equate 11 the employee's view with that of his employer, then employee testimony would rarely be admissible. 12 Plaintiffs do not—and cannot—seriously argue that the value of the PBM employees' testimony about 13 their personal experience interpreting and applying their employers' respective U&C definitions is 14 outweighed by the speculative possibility that it might be misconstrued. 15 C. The Employees' Testimony Is Based on Personal Knowledge. 16 Plaintiffs' final argument is that five particular employees cannot testify because, supposedly, 17 they lack personal knowledge of the PBMs' views on U&C pricing. The Court correctly rejected this 18 same argument at summary judgment, after thoroughly reviewing the record. Nothing has changed. 19 First, Plaintiffs observe that Optum employees Michael Reichardt and Joseph Zavalishin were 20 not employed by Optum in 1999 when CVS and Optum's predecessor signed the relevant contract. 21 Mot. 11. But they will not testify about events in 1999; they will testify to their personal knowledge of 22 Optum's consistent policy, across all versions of the contract, that membership program prices were 23 not U&C prices. As Optum's Senior Director for Network Relations, Mr. Reichardt had responsibility 24 for "negotiating and managing relationships with Optum's network pharmacies, including CVS" and 25 "managing and reviewing the pharmacy manual that applies to network pharmacies." Corcoran, 2017 26 WL 3873709, at *14. He reported to Mr. Zavalishin, a Senior Vice President. Ex. 9 at 200:25– 27 201:12. During his employment, Mr. Reichardt came to learn how Optum had interpreted and applied 28 the U&C definition in its 1999 contract with CVS, which remained the operative contract through CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 4 4 1 January 28, 2015. Ex. 5, ¶¶ 9–12. As the Court previously held, "[w]hile [these] witnesses may not 2 have been personally involved with crafting the contracts at issue, their positions and job duties pertain 3 to managing the relationship between CVS and their respective companies and involve an 4 understanding of how their companies viewed U&C pricing." Corcoran, 2017 WL 3873709, at *15. 5 The witnesses therefore have sufficient background and experience to "provide competent testimony" 6 about their understanding of Optum's contractual definition of U&C. Id. 7 Second, Plaintiffs argue that former Medco employees Franceen Spadaccino, William Strein, 8 and Cal Corum did not negotiate or sign the operative agreement, and were "unaware of, declined 9 responsibility for, or did not recall key facts relating to the implementation or enforcement of that 10 agreement." Mot. 11. Again, the witnesses will not testify to any facts they do not know or recall, and 11 Plaintiffs are free to highlight on cross-examination any gaps in the witnesses' recollections. 12 "Absolute certainty either of observation or of recollection is not required to establish personal 13 knowledge"; "even if the witness had only a broad general recollection of the subject matter," Rule 14 602 is satisfied. U.S. v. Frantz, 2004 WL 5642909, at *3 (C.D. Cal. Apr. 23, 2004). All three 15 witnesses easily satisfy that standard—each individual (1) held positions at Medco that involved 16 negotiating and managing contracts with Medco's network pharmacies, including CVS; (2) were 17 contemporaneously aware of CVS's HSP program; and (3) knew that CVS was not submitting the 18 HSP price as its U&C price on Medco claims and that Medco did not believe that CVS violated the 19 contract by doing so. Defects in their recollections or limitations in the scope of their knowledge "do 20 not render testimony inadmissible as personal knowledge/opinion but rather are factors for 21 consideration by the jury." Id. (quoting SEC v. Singer, 786 F. Supp. 1158, 1167–68 (S.D.N.Y. 1992)). 22 Finally, Plaintiffs' Proposed Order (but not the Motion itself) seeks exclusion of Amber 23 Compton, the former Vice President, Retail Strategy & Contracting for Express Scripts. For the same 24 reasons the Court previously found that Ms. Compton's testimony was based on her personal 25 knowledge, she is a competent witness to testify at trial. Corcoran, 2017 WL 3873709, at *14–15. 26 * * * 27 For the foregoing reasons, the Court should deny Plaintiffs' Motion #1. The jury should be 28 allowed to hear and consider testimony from the PBM employees. CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 5 4 1 II. MOTION #2: OTHER PHARMACIES' AND GOVERNMENT PAYORS' POSITIONS 2 Plaintiffs' Motion #2 is a textbook example of "misus[ing] motions in limine in an attempt to 3 exclude broad categories of possible evidence," in violation of § 4(a) of the Court's Standing Order re: 4 Pretrial Instructions in Civil Cases. Rather than "specify the precise exhibits or proffered testimony 5 [they seek] to exclude," Plaintiffs ask the Court to prevent the jury from hearing any evidence relating 6 to (1) other pharmacies' and (2) government regulators' positions on membership programs and U&C 7 prices. These topics are irrelevant, Plaintiffs say, because "[t]he only parties at issue here are the 8 insured customer class members and CVS[.]" Mot. 12. The Motion should be "routinely denied," 9 § 4(a), based on its breadth and lack of specificity alone. 10 On the merits, the Court should deny the Motion because evidence of a general industry 11 understanding is highly relevant to the jury's determination of what "usual and customary" means 12 under the CVS-PBM contracts at issue. Both parties agree with that proposition. There is no dispute, 13 nor could there be, that: (a) evidence of an industry custom and practice is relevant to interpreting an 14 ambiguous term in a contract; 2 and (b) the term "usual and customary," as it appears in the CVS-PBM 15 contracts, is ambiguous. 3 For that reason, both parties have retained experts who intend to opine on 16 the meaning of "usual and customary" based on industry custom and understanding. 4 17 Other pharmacies' practices are significant evidence of the industry custom which will help the 18 jury determine the meaning of "usual and customary" in contracts between sophisticated parties in the 19 pharmacy industry. So too are the contemporaneous views of government regulators, as reflected both 20 2 21 SEC v. Sabhlok, 2010 WL 2944255, at *2 (N.D. Cal. July 23, 2010) (expert testimony admissible to interpret contract provisions having a specialized meaning within an industry) (citing Kona Tech. 22 Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 611 (5th Cir.2000)); cf. Corcoran, 2017 WL 3873709, at 23 *12 ("the term at issue—i.e., 'Usual and Customary'—necessarily requires an understanding of what is "usual" and "customary" between the parties and within the industry.") (emphasis added). 3 24 Corcoran, 2017 WL 3873709, at *12 ("Plaintiffs' argument that the contracts are clear and unambiguous is belied by the contractual language itself… the definitions of 'U&C' within each 25 contract introduce further ambiguities."). 4 26 Ex. 24, ¶ 52 (plaintiffs' expert: "[b]ased on… my understanding of the general industry standard…"); Ex. N at 19 (CVS expert: opining on understanding of the "PBM industry"). Plaintiffs' second expert, 27 Dr. Navarro, also opined on the industry understanding of U&C, based in part on state Medicaid U&C definitions and actions by public regulators. Expert Report of Robert P. Navarro, Pharm. D. (Dec. 9, 28 2016), ¶¶ 30, 40–43. The Court excluded certain opinions by Dr. Navarro based on lack of a reliable methodology. Corcoran v. CVS Health Corp., 2017 WL 1065135, at *12 (Mar. 21, 2017). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 6 4 1 in documents explicitly memorializing their positions and in the actions by states that amended the 2 U&C definitions in their Medicaid laws to reference membership programs. Not only is the industry's 3 understanding of U&C relevant to showing that CVS understood its contracts correctly, but it is 4 relevant to witness credibility and to Plaintiffs' claims for punitive damages (to the extent those claims 5 survive for trial). 6 A. The U&C Practices of Other Pharmacies Are Relevant 7 Plaintiffs argue that evidence of other pharmacies' conduct should be excluded to prevent CVS 8 from mounting an "everybody is doing it" defense of its actions. Mot. 13. But that mischaracterizes 9 CVS's defense. CVS is not asserting, and never has asserted, that if it breached its PBM contracts it 10 would be "immunize[d]," id., from liability because other pharmacies also did so. Quite the contrary, 11 CVS argues that the industry's understanding of "usual & customary" shows that CVS did not breach 12 its PBM contracts and that its interpretation of the term "usual & customary" was correct. The 13 industry's understanding further supports CVS's defense that it acted on a good faith, reasonable belief 14 that HSP prices were not U&C prices. Evidence of how other pharmacies understood the meaning of 15 "usual & customary" will aid the jury in determining the meaning of U&C in at least three ways. 16 First, industry practice is "plainly relevant" to the interpretation of a contract term. ECD Inv'r 17 Grp. v. Credit Suisse Int'l, 2017 WL 3841872, at *17 (S.D.N.Y. Sept. 1, 2017). 5 Evidence of other 18 pharmacies' contemporaneous understanding that membership program prices were not U&C prices 19 tends to show that CVS's interpretation of its PBM contracts is correct. Were CVS's interpretation 20 incorrect, one would expect other pharmacies to have a different understanding. 21 Second, that same evidence is also important to supporting or rehabilitating the credibility of 22 the PBM employees from whom the jury will hear testimony at trial. Throughout the case, Plaintiffs 23 have described the PBM employees' testimony as "after-the-fact" and "litigation-driven," implying the 24 25 5 See also Roling v. E*Trade Secs. LLC, 860 F. Supp. 2d 1035, 1047 (N.D.Cal.,2012) (indicating 26 that contract was "not so free from ambiguity to preclude extrinsic evidence" of industry "custom and usage" that would "establish the correct interpretation or understanding of the agreement as to its 27 term") (quoting 407 E.t 61st Garage, Inc. v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275, 281 (1968)); United Mercury Mines Co. v. Bradley Min. Co., 259 F.2d 845, 848 (9th Cir. 1958) ("The interpretation 28 of words of art by reference to the practices of the particular industry is a common sense operation and one long familiar in the judicial process."). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 7 4 1 testimony is untruthful. See, e.g., Appellants' Reply Br. 3, Corcoran v. CVS Health Corp., No. 17- 2 16996 (9th Cir. June 4, 2018) [ECF No. 33]. Plaintiffs also argue that the small quantity of documents 3 the PBMs produced in response to third-party subpoenas tends to support the view that their testimony 4 is a made-up litigation position. Id. at 11–12. Evidence of other pharmacies' contemporaneous 5 conduct rebuts this argument by showing that the PBMs have taken a consistent position all along that 6 pharmacies were not required to submit membership program prices as U&C prices. 7 Third, Plaintiffs are seeking punitive damages, which requires a showing of a highly culpable 8 mental state. 6 While CVS disputes that there is any basis for punitive damages in this case, to the 9 extent that issue goes to the jury, evidence that CVS followed industry custom is highly relevant to 10 show that it did not act with the requisite mental state. Needham v. Innerpac, Inc., 2006 WL 2710617 11 (N.D. Ind. Sept. 19, 2006) ("Evidence of industry custom may, in fact, be relevant to aid the factfinder 12 in determining the intent of the parties."). 13 Introducing evidence of other pharmacies' U&C practices at trial would not, as Plaintiffs 14 claim, create a "sideshow" of "mini-trials." Mot. 13–14. Because Plaintiffs have not identified 15 specific evidence or testimony they seek to exclude, let alone explain what entities or issues would be 16 involved in these "mini-trials," it is impossible to evaluate the merits of this argument. Nor does it 17 ring true based on the evidence in the record. There is no dispute that the other pharmacies that 18 offered membership programs (e.g., Walgreens, Rite Aid, Kmart, H-E-B) had the same understanding 19 as CVS and the PBM witnesses that membership program prices were not U&C prices. This evidence 20 can be presented briefly and efficiently. 21 B. Contemporaneous Statements and Actions of Government Payors Are Relevant 22 Plaintiffs also seek to exclude "federal or state governmental actors' positions on U&C 23 reporting, including regulations, litigation and enforcement actions." Mot. 12. 24 25 6 26 Dunlap v. Jimmy GMC, 666 P.2d 83, 88 (Ariz. Ct. App. 1983) (wantonness, recklessness, spite, ill will, or reckless indifference); Judicial Council of California Civil Jury Instruction No. 3945 (Punitive 27 Damages—Entity Defendant—Trial Not Bifurcated) (Modified); Wendorf v. Landers, 755 F. Supp. 2d 972, 981 (N.D. Ill. 2010) (maliciousness or deliberate indifference); Kattar v. Demoulas, 739 N.E.2d 28 246, 25 (Mass. 2000) (treble damages for "willful" violation); New York Pattern Jury Instruction— Civil 2:278 (Damages—Punitive) (modified). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 8 4 1 CVS agrees with Plaintiffs in part: evidence of government "litigation" and "enforcement 2 actions" (i.e., investigations) against CVS and other pharmacies is not relevant, would be unfairly 3 prejudicial, and should be excluded from the trial. See CVS Mot. in Lim. #1. 7 The investigations and 4 litigation concerning pharmacy membership programs were initiated years after the fact and do not 5 reflect any state actor's contemporaneous understanding of whether membership program prices are 6 U&C prices. 7 In sharp contrast to a few states' litigation positions, government payors' contemporaneous 8 statements expressing their positions about U&C pricing and membership programs are highly 9 relevant and admissible. Like the evidence about other pharmacies discussed above, government 10 regulators' contemporaneous statements are probative of the industry's understanding of whether 11 membership program prices are U&C prices. Plaintiffs' own experts have even cited state Medicaid 12 regulations as relevant to understanding U&C prices. See Expert Report of Robert P. Navarro, Pharm. 13 D., (Dec. 9, 2016), ¶¶ 40–43. Likewise, evidence that certain states, such as Connecticut and Oregon, 14 amended their U&C definitions to expressly reference membership programs reflects the industry's 15 contemporaneous understanding that, in the absence of such an express statement, the term "usual and 16 customary" did not encompass membership program prices. The amendments to state law in 17 Connecticut and Oregon were not part of any investigation or litigation and thus do not implicate the 18 Rule 403 concerns described above. 19 * * * 20 Evidence that CVS acted in accordance with industry practice, as demonstrated by the 21 contemporaneous statements and actions of other pharmacies and government regulators, tends to 22 show that CVS's understanding of U&C was correct and that CVS acted in good faith. Motion #2 23 should be denied, except that CVS agrees that evidence of other lawsuits and investigations should be 24 excluded. 25 7 26 County of Maricopa v. Office Depot Inc., 2019 WL 5066808, at *16 (D. Ariz. Oct. 9, 2019) (prohibiting plaintiff from introducing evidence that defendant was "investigated, sued, or otherwise 27 subjected to allegations of misconduct by certain third parties"); Ricks v. Mayatoshi, 2017 WL 1363306, at *2 (D. Haw. Apr. 12, 2017) (testimony concerning other incidents or allegations is "not 28 admissible because its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, and undue delay"). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 9 4 1 III. MOTION #3: PLAINTIFFS' PURCHASES FROM OTHER PHARMACIES 2 Plaintiffs' Motion #3 seeks to prevent CVS from introducing evidence "that Plaintiffs could have 3 shopped at another pharmacy or other location for their relevant prescriptions during the class period." 4 Mot. 16. The Proposed Order would go one step further, barring CVS from mentioning that Plaintiffs 5 "did make" purchases of the same prescriptions at non-CVS pharmacies from time to time. The Court 6 should deny this Motion in its entirety, as it would block CVS from introducing evidence that 7 undermines certain prima facie elements of Plaintiffs' claims (e.g., materiality, reliance, unfair 8 conduct) and supports CVS's affirmative defense (statute of limitations). 9 All seven class representatives filled prescriptions during the class period at both CVS and 10 non-CVS pharmacies. See, e.g., Ex. 31 at 211:2–15, 217:14–23 (Walmart); id. at 265:3:266–13 11 (Walgreens); Ex. 32 at 177:22–178:16 (Rite Aid); Ex. 33 at 54:25–55:12 (Walgreens); Ex. 34 at 12 90:15–22 (Liberty Pharmacy); Ex. 35 at 80:15–81:22 (Walgreens); Ex. 36 at 112:3–6, 118:19–119:13 13 (Rite Aid and Stop and Shop); Ex. 37 at 47:2–5 (Walgreens). 14 The class representatives have different reasons for shopping at more than just CVS 15 pharmacies. Some took advantage of another pharmacy's $4 generic drug program (e.g., Walmart). 16 See Ex. 31 at 211:2–15, 217:14–23. Some felt another pharmacy was cheaper than CVS. See Ex. 35 17 at 80:15–81:22 (switched to Walgreens); Ex. 34 at 90:15–22 (switched to Liberty); Ex. 32 at 177:22– 18 178:16 (switched to Rite Aid). Some based their decision on the location of the pharmacy. See Ex. 33 19 at 54:25–55:12. Some could not articulate a reason why they shopped where they did. Ex. 36 at 20 118:19–119:13. Some chose pharmacies based on brand name and convenience, Ex. 35 at 117:16– 21 118:15, whereas others based their decision on the availability of medications. Ex. 36 at 112:3–6. At 22 least one Plaintiff purchased at other pharmacies the same drug for which she claims CVS overcharged 23 her—and she paid higher prices to the other pharmacy. Ex. 33 at 88:5–24. 24 Because the Plaintiffs' purchasing practices were far from uniform, they raise different 25 questions of relevance and admissibility, which are poorly suited to a blanket motion in limine. The 26 blanket ruling Plaintiffs request would preclude CVS from presenting significant admissible evidence 27 relevant to its defense. 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 10 4 1 First, evidence of Plaintiffs' purchases at non-CVS pharmacies is relevant to disproving 2 certain elements of the consumer fraud statutes that Plaintiffs claim were violated. For example, the 3 California and New York statutes both require Plaintiffs to prove "materiality." See Gutierrez v. 4 Carmax Auto Superstores Cal., 248 Cal. Rptr. 3d 61, 83–84 (Ct. App.), as modified on denial of reh'g 5 (Feb. 22, 2018); Stutman v. Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000). CVS should be permitted 6 to argue that the jury should find CVS's alleged misconduct was not material because some class 7 representatives (1) shopped at other pharmacies despite paying more for their prescriptions there than 8 at CVS; (2) shopped at CVS pharmacies instead of filling their prescriptions at another pharmacy that 9 offered a lower price; or (3) considered factors such as location, customer service, and name 10 recognition to be more important than price. See Ex. 32 at 87:12–18 (preferred other pharmacy's 11 customer service); Ex. 33 at 55:6–12 (proximity); Ex. 35 at 117:10–18 (convenience and name 12 recognition). Within the context of a particular class representative's purchasing patterns, CVS at trial 13 would use one or more of these factors to argue that CVS's conduct was not material. 14 Similarly, the Arizona and Illinois statutes require Plaintiffs to prove "reliance" on CVS's 15 alleged misconduct. See RAJI, Commercial Torts 21, Consumer Fraud (Arizona elements); Kalpake v. 16 Regas, 2018 Il App (1st) 17-1282-U, ¶¶ 40-45, 2018 WL 1631359, at *9 (Illinois elements). For many 17 of the same reasons stated above, Plaintiffs' patronage of non-CVS pharmacies tends to undercut their 18 claim of reliance. For example, Arizona class representative Darlene McAfee testified that she used 19 Walgreens and CVS at different times based on proximity alone. Ex. 33 at 54:25–55:12. Only one of 20 her transactions at CVS meets the class definition in this case—a purchase on August 6, 2010, where 21 she paid a copayment equivalent to $0.06/per unit for her prescribed medication. A few weeks earlier, 22 on July 24, 2008, she paid twice as much for the same drug at Walgreens—$0.12/unit. Ex. 33 at 23 88:13–19 ("Q. And that is a higher price that you were paying for [Drug X] than you paid at the CVS 24 pharmacy on the transaction that is the basis of you joining this lawsuit; is that fair? . . . A. It seems to 25 be, yeah, from what we're looking at."). CVS should be permitted to examine Ms. McAfee about 26 these facts, which tend to negate the reliance element of her claim. 27 The Motion would also preclude CVS from adequately defending itself against the 28 "unfairness" element of certain statutes. In assessing the "fairness" of CVS's conduct, the jury is CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 11 4 1 entitled to know that CVS was not the Plaintiffs' only option for filling prescriptions. That is to say, 2 Plaintiffs were not "captive" CVS customers who the company somehow took advantage of. CVS can 3 only educate the jury on this point if it is permitted to introduce the fact that Plaintiffs could have, and 4 did, purchase prescriptions at non-CVS pharmacies. 5 Second, testimony concerning some Plaintiffs' awareness or use of other pharmacies' generic 6 drug programs is relevant to determining when they knew or should have known about their claims for 7 the purposes of CVS's statute of limitations defense. For example, Carl Washington was aware of and 8 used Walmart's $4 generic drug program as early as November 2009; he claims that CVS overcharged 9 him around the same time; and the statute of limitations under Illinois law (three years) began to run 10 when he knew or with reasonable diligence should have known that CVS charged him more than the 11 HSP program price. Ex. 31 at 211:2–15. Since he knew about and used other pharmacies programs 12 like Walmart's program, CVS is entitled to argue that he did not timely file his claims by waiting more 13 than three years from November 2009 to file his lawsuit. CVS cannot make this argument without 14 explaining that Washington had the ability to purchase prescriptions at Walmart, and did so pursuant 15 to that company's generic drug program. 16 17 18 19 20 21 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 12 4 1 IV. MOTION #4: "CUMULATIVE" EXPERT TESTIMONY 2 Plaintiffs' Motion #4 seeks to prohibit CVS from offering testimony from more than one of the 3 following expert witnesses: 4 • Pamela Wyett, the former manager of Cardinal Health's "LeaderNet" Provider Services 5 Administrative Organization ("PSAO") that represented more than 3,000 independent 6 and regional pharmacies; 7 • John Jones, a former Senior Vice President of Professional Practice & Pharmacy 8 Policy at Optum; and 9 • Ed McGinley, the former President of the National Association of Boards of Pharmacy 10 and New Jersey Board of Pharmacy, who also worked in the pharmacy department for 11 Pathmark Stores, Inc., for more than 35 years. 12 Citing Rule 403, Plaintiffs argue that such testimony is "cumulative and duplicative," "unfairly 13 prejudicial," and would "waste the jury's and the Court's time." Mot. 18. 14 The Court should deny Plaintiffs' Motion because (1) the testimony is neither duplicative nor 15 cumulative, and regardless, (2) forcing CVS to choose only one expert would intrude upon the 16 company's right to present its defense. At the very least, the Court should await the trial and the 17 presentation of evidence before deciding that any particular yet-to-be-offered testimony is 18 impermissibly duplicative of other yet-to-be-offered testimony. 19 A. The Proposed Testimony Is Not Duplicative. 20 Plaintiffs are wrong to suggest that the testimony of Wyett, Jones and McGinley (collectively, 21 the "Three Experts") is duplicative and cumulative. True enough, all three experts agree—just like 22 CVS, the class PBMs, and every other industry participant who has provided evidence in this case— 23 that special prices charged to members of a program like HSP are not "usual and customary" prices. 24 But a common conclusion does not make experts' testimony impermissibly cumulative. Instead, 25 courts consider, among other things, the experts' different backgrounds, qualifications, education, 26 experience, analysis, and evidence. See, e.g., Rodriguez v. County. of Stanislaus, 2010 WL 2720940, 27 at *2 (E.D. Cal. July 8, 2010) ("While there may indeed be overlap in testimony amongst the three 28 railroad operations experts, … the mere presence of overlap, reference to another expert's report or a CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 13 4 1 similar conclusion, however, does not render an expert report unnecessarily 'cumulative' pursuant 2 to FRE 403." (brackets and internal quotation marks omitted)); 8 see also, e.g., Calvert v. Ellis, 2015 3 WL 732523, at *2 (D. Nev. Feb. 20, 2015) ("The mere presence of overlap, reference to another 4 expert's report or a similar conclusion, however, does not render an expert report unnecessarily 5 'cumulative' pursuant to FRE 403. Courts frequently permit multiple experts to opine on similar 6 issues where each expert's credentials and expertise differ." (citations omitted)). 7 Here, the Three Experts bring to bear decades of experience from different sectors of the 8 prescription-drug industry. Ms. Wyett has nearly four decades of experience in the industry. Most 9 pertinent here is her time as a Senior Director for pharmaceutical wholesaler Cardinal Health's 10 LeaderNet PSAO. In that capacity, she negotiated contracts on behalf of thousands of pharmacies and 11 introduced and managed the "Leader Wellness Savings Program" membership program. See Ex. M at 12 1–3. 13 Mr. Jones's expertise, by contrast, comes from the PBM sector. He has more than twenty-five 14 years working for the PBM Optum and its predecessors. See Ex. N. at 1–4. In that capacity, Mr. 15 Jones negotiated contracts on behalf of the PBM, across the table from pharmacies, and reviewed 16 pharmacies' compliance with those contractual terms. See id. 17 Mr. McGinley developed his expertise in pharmacy trade organizations and as a practicing 18 pharmacist. In addition to his leadership positions in state and national pharmacy organizations, Mr. 19 McGinley worked for Pathmark Stores, a regional supermarket chain, from 1972 through 2008, 20 starting as a practicing pharmacist and rising to become Director of Pharmacy Services for Pathmark's 21 more than 130 pharmacies. See Ex. O at 1. In his more than thirty-five years at Pathmark, Mr. 22 McGinley implemented the terms of Pathmark's contracts with PBMs and third-party payors, oversaw 23 operation of the pharmacy's software responsible for submitting U&C prices, and ensured stores' 24 compliance with applicable contracts and regulations. See id. 25 26 8 27 See also Rodriguez v. County of Stanislaus, 2010 WL 2720940, at *2 (E.D. Cal. July 8, 2010) (reasoning that "the expert reports and each curriculum vitae evidences unique educational and 28 employment backgrounds"); id. ("The qualifications of these two experts alone is sufficient reason to permit the designation and testimony of each."). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 14 4 1 In addition to their experience from different industry sectors, the Three Experts present 2 varying qualifications, professional memberships, and other credentials. See, e.g., Ex. M at 3 (Ms. 3 Wyett: a member of NCPDP for nearly two decades); Ex. N at 3 & Exhibit A [Mr. Jones's CV] (Mr. 4 Jones: author of industry publications; professor at pharmacy schools); Ex. O at 2 (Mr. McGinley: 5 member of the Center for Pharmacy Practice Accreditation). 6 Given their different backgrounds and experiences, the Three Experts' opinions are distinct, 7 and each will assist the jury, even if the experts reach the same conclusion. For example, Ms. Wyett 8 opined that based on her experience, "customers who enrolled in a pharmacy's membership program 9 did not constitute members of the 'general public.'" Ex. M at 15. That "experience" includes her 10 introduction and operation of a membership program: Cardinal Health's "LeaderNet." See id. at 2 11 ("The program's pricing did not alter the cash or U&C price, and was not submitted to any third party 12 as a U&C price."). Mr. Jones relies upon his distinct experience to testify that if PBMs had shared 13 Plaintiffs' belief that membership program prices are U&C prices, they would have acted quickly to 14 correct the pharmacy's contract violations. See Ex. N at 22 ("It is my experience that when a PBM 15 believes that a pharmacy is violating contractual reimbursement provisions, the PBM acts quickly and 16 forcefully to enforce their understanding of the provisions…"). Just as in Calvert, therefore, allowing 17 each expert to testify will "[p]rovid[e] the jury with perspectives from experts of different fields" and 18 be "helpful to the jury." See Calvert, 2015 WL 732523, at *2. 19 Even where testimony is duplicative (unlike here), Rule 403 requires a balancing between the 20 testimony's duplicativeness and its probative value. Notably, each of the Three Experts' testimony 21 addresses core issues in this litigation, such as whether customers enrolled in a membership program 22 are considered "cash" customers for U&C purposes (they are not), and whether the lower prices 23 available to enrollees in a membership program are considered "discounts" from retail prices for U&C 24 purposes (they are not). That makes this case very different from Rogers v. Raymark, where the Ninth 25 Circuit concluded that the district court did not abuse its discretion in excluding a proffered expert's 26 testimony when the testimony was "one step removed" from and "only tangentially related to the 27 issues at trial." 922 F.2d 1426, 1430 (9th Cir. 1991) (noting as well the testimony's "potential of 28 confusing the jury"). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 15 4 1 B. The Motion Interferes with CVS's Right to Present Its Defense. 2 Plaintiffs' Motion contradicts the long-recognized principle that a party may elect for itself 3 how to present its case. See, e.g., 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal 4 Evidence § 611.02[2][a][i] (3d ed. 2020) ("In the usual case, the order and mode of presenting 5 evidence and examining witnesses are determined by well-recognized legal conventions and the 6 parties' choice of trial tactics."); Joseph M. McLaughlin, 3 Federal Evidence Practice Guide § 13.00 7 (2020) ("[T]he parties will be permitted to select the order in which they call their witnesses. This 8 accords with the adversary system in that it enables each party to determine how best to present its 9 case in accordance with the strategy it has chosen."). Here, the Court has allotted 22.5 hours to each 10 side. CVS, not Plaintiffs, gets to decide how that time is spent, including how many of the Three 11 Experts will be called and on which of the disclosed topics each will testify. CVS certainly should not 12 be forced to make a definitive determination which experts to call in its defense before the trial even 13 begins and before Plaintiffs have presented their case-in-chief. 14 * * * 15 Because the Three Experts' testimony is not duplicative, the Court should deny this Motion. 16 At the very least, the Court should reserve ruling on the Motion until CVS offers its experts to testify 17 at trial. At that time, the Court can evaluate in context the extent to which hearing from each expert 18 would be appropriate. See, e.g., Antoninetti v. Chipotle Mex. Grill, Inc., 2007 WL 3333109, at *3 19 (S.D. Cal. Nov. 8, 2007) (denying motion in limine to exclude cumulative testimony as "premature" 20 where "Defendant has not yet determined what evidence it will introduce through each of its specific 21 witnesses"). 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 16 4 1 V. MOTION #5: REFERENCES TO LAWYERS 2 Plaintiffs' Motion #5 seeks to bar CVS from referring to: (1) this case as "lawyer driven;" 3 (2) the circumstances under which plaintiffs came to retain counsel; and (3) Class Counsel's attorneys' 4 fees. Mot. 21–22. Although CVS does not oppose part (3) of the Motion, parts (1) and (2) are 5 overbroad and reach legitimate evidence and argument relevant to CVS's defense. The Motion in 6 limine should be denied. To the extent Plaintiffs may object at trial to a particular statement or line of 7 examination, the Court can take up such objections as they arise. 8 A. References to "Lawyer Driven" Litigation 9 CVS will show the jury that companies in the prescription-drug industry—pharmacies, PBMs, 10 and third-party payors—agree that prices in a pharmacy's opt-in membership program like Health 11 Savings Pass are not the pharmacy's U&C prices. Based on that evidence, the jury should conclude 12 that the record on this central issue is entirely in CVS's favor, and that the only contrary position is the 13 paid-for litigation opinion of Plaintiffs' damages expert Dr. Joel Hay. 9 Not even the class 14 representatives have a view one way or another whether a membership program price is a U&C price 15 or whether CVS otherwise overcharged them—most have disclaimed knowing whether their claims 16 are meritorious. 10 17 9 18 The only other Plaintiff expert, Dr. Robert Navarro, who originally was designated to opine on what constitutes a U&C price, has been excluded under Daubert from opining that a membership program 19 price is a U&C price. Corcoran, 2017 WL 1065135, at *1. 10 See, e.g., Ex. 37 at 14:19–22 ("Q. So independent of any conversations with attorneys, you had no 20 reason to believe that CVS was overcharging you, correct? A. Correct."), id. at 60:6–12 ("Q. Do you 21 have any complaints or criticisms of CVS as it concerns CVS's usual and customary price for prescriptions? . . . A. I wouldn't have any knowledge of that."); Ex. 32 at 326:12–20 ("Q. … the only 22 basis or your belief that you were overcharged, that is information that you received from your 23 lawyers, correct? A. Yes…."); Ex. 35 at 251:17–23 ("Q. So you're saying that the actions you think CVS needed to take to inform you of the [HSP program] were to inform you that there was a way for 24 you to save money and that you didn't need to use your insurance? A. If that's true. And again, I still don't know that that's true."); Ex. 34 at 41:25–42:7 (no personal belief whether she was overcharged 25 by CVS at the time she became involved in the lawsuit), id. at 60:13–23 ("Q. Sitting here today, do 26 you believe [$38.81] is an accurate figure with respect to the alleged overcharges that you're claiming. A. I don't know."); Ex. 31 at 117:9–16 ("Before contacting attorneys regarding this case, you didn't 27 believe you had been overcharged on prescriptions? A. Okay. I didn't know. . . my attorneys informed me that I'd been overcharged"); Ex. 33 at 58:21–24 ("Q. Before your [plaintiff lawyer] 28 friend Betsy Manafort talked to you about this lawsuit, did you ever have concerns about the pricing you were receiving at CVS pharmacy? A. No."); Ex. 36 at 151:16–152:7 (Q. And so, do you have any CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 17 4 1 For these reasons, CVS intends to argue that the central thesis of Plaintiffs' case—that 2 membership program prices are U&C prices—is not a position held by anyone knowledgeable on the 3 subject, but instead is an invention for litigation. CVS's argument follows from the complete absence 4 of contemporaneous evidence by industry participants concluding that the term "usual and customary" 5 encompasses membership program prices, and the mountain of evidence concluding the opposite. The 6 argument that Plaintiffs' theory is made-for-litigation therefore has direct relevance to CVS's defense 7 on the merits, unlike the three cases cited in the Motion that prohibited general references to class 8 counsel or the plaintiff's motivation for pursuing the litigation. See Mot. 21 (citing Hart v. RCI Hosp. 9 Holdings, Inc., 90 F. Supp. 3d 250, 271–73 (S.D.N.Y. 2015) (discussing arguments "generally" 10 regarding "lawyer-driven lawsuits"); Samsung Elecs. Co. v. NVIDIA Corp., 2016 WL 754547, at *3 11 (E.D. Va. Feb. 24, 2016) (discussing relevance of a plaintiff's motive for bringing suit only in patent 12 infringement cases); Bowe v. Pub. Storage, 2015 WL 10857339, at *5 (S.D. Fla. June 2, 2015) 13 (discussing evidence concerning non-class representative plaintiff). 14 The Court should deny the Motion insofar as it seeks a blanket prohibition to any reference or 15 suggestion that the case is "lawyer driven." Instead, the appropriate approach is for counsel to object 16 if they believe any particular comment or line of argument at trial is inappropriate. This allows the 17 Court to consider the propriety of any comment or question within the context of the evidence that has 18 been presented at trial. 19 CVS has no intention at trial of personally indicting any specific plaintiff lawyer as responsible 20 for inventing the theory of this case, or arguing that class action lawsuits generally are lawyer driven. 21 That distinguishes this case from Hart v. RCI Hospitality Holdings, Inc., 90 F. Supp. 3d 250, 271–73 22 (S.D.N.Y. 2015), cited in the Motion. The Hart court prohibited the defendant from criticizing before 23 the jury "the business model" of class action litigation or the "ethics of class action counsel." Id. at 24 273. Hart was confronting something CVS will not do at trial—attacking class action litigation 25 generally. 26 27 understanding of how your claims in this lawsuit relate to the HSP program, if at all? ... A. I don't know, experts handle that. Q. So you don't know if your – you don't know if you're suing because 28 you think you paid more than a price that was available in the [HSP] program, you don't know that? A. The lawyer and the experts figured it out."). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 18 4 1 B. Plaintiffs' Circumstances for Retaining Counsel 2 The Court should also deny the Motion insofar as it seeks to prevent CVS from referencing 3 "how, when, or under what circumstances, [Plaintiffs] selected or hired their attorneys, or [] any 4 referral arrangements or other counsel the parties may have retained or consulted beyond their current 5 counsel." Mot. 21. Such an order would make it impossible for CVS to educate the jury about basic 6 background concerning the class representatives, as well as facts relevant to those representatives' 7 beliefs (or lack thereof) in the merits of their claims and to the statute of limitations. 8 First, as a general proposition, courts routinely find that the circumstances of a plaintiff's 9 becoming involved in a class action are "probative of her credibility regarding her injuries." Lewis v. 10 Ethicon (In re Ethicon, Inc., Pelvic Repair Sys. Prod. Liab. Litig.), 2014 WL 505234, at *3 (S.D.W. 11 Va. Feb. 5, 2014) (denying motion in limine to exclude fact that plaintiff saw a television commercial 12 regarding the litigation before filing suit); Kie v. Williams, 2016 WL 6208692, at *3 (W.D. La. Oct. 13 23, 2016) (denying motion in limine concerning "lawyer driven medical treatment" and noting that the 14 evidence "draws into question the veracity of Plaintiffs' subjective complaints"). Each class 15 representative in this case intends to testify at trial. Mot. 23 ("representatives… committed to appear 16 at trial"). CVS should be allowed to examine each representative about how he or she became 17 involved in this case. 18 This line of cross-examination will be especially significant because the class representatives 19 have testified that they have no opinion on whether CVS overcharged them or on the merits of their 20 claims. See supra n.10. The seven representatives' participation in this lawsuit did not result from 21 any belief that CVS wronged them; rather, all seven were solicited by counsel. Six were contacted 22 personally by a lawyer and pitched to join the case; three of those six were first contacted by a law 23 firm other than Class Counsel who represented them in prior products liability litigation, and thus had 24 access to their medical records. 11 The seventh representative called counsel only after seeing a press 25 11 26 Ex. 31 at 137:22–138:14; 340:22–341:6 (attorneys reviewed prescription records from another case and reached out to him); Ex. 34 at 28:12–29:20; 32:6–33:1 (same); Ex. 36 at 35:20–36:3; 181:12– 27 182:5 (same); Ex. 32 at 29:3–31:13 (Clark and class counsel have preexisting business relationship that led to Clark's involvement in the case); Ex. 33 at 10:2–23, 28:17–29:15, 30:8–19 (McAfee's 28 personal lawyer friend told her about the case); Ex. 37 at 17:4–18:9 (high school friend and Hausfeld lawyer told him about the case). CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 19 4 1 article describing the case and directing any questions to Class Counsel.12 The jury should be 2 permitted to hear these facts, which underscore why none of the class representatives has a view on the 3 merits of Plaintiffs' claims. 4 Second, the timing of each class representative's communications with counsel is relevant to 5 CVS's statute of limitations defense. For three of the six states at issue, the statute of limitations runs 6 from the date when the plaintiff knew or with reasonable diligence should have known of her injury 7 (Arizona and Illinois) or the date it was reasonably likely for the plaintiff to draw a connection 8 between her injury and the alleged misconduct (Massachusetts). Doe v. Roe, 955 P.2d 951, 960 (Ariz. 9 1998) ("a cause of action does not accrue until the plaintiff knows or with reasonable diligence should 10 know the facts underlying the cause"); Indep. Tr. Corp. v. Fid. Nat'l Title Ins. Co., 577 F. Supp. 2d 11 1023, 1041 (N.D. Ill. 2008) (limitations begins running when a plaintiff "knew, or reasonably should 12 have known, that [he] was injured and that the cause of its injury was wrongful"); Bowen v. Eli Lilly & 13 Co., Inc., 557 N.E. 2d 739, 741 (Mass. 1990) (limitations period begins to run "when a plaintiff 14 discovers, or any earlier date when she should reasonably have discovered, that she has been harmed 15 or may have been harmed by the defendant's conduct"). In presenting its statute of limitations 16 defense, CVS is entitled to introduce the dates when the Plaintiffs communicated with counsel, to 17 establish when they knew or should have known about their alleged injuries. 18 * * * 19 For the foregoing reasons, the Court should deny Plaintiffs' Motion #5 insofar as it would 20 prevent CVS from referencing or suggesting this lawsuit is "lawyer driven" or commenting on the 21 circumstances surrounding the class representatives retaining counsel. CVS does not oppose the 22 portion of the Motion that concerns Class Counsel's attorneys' fees. 23 24 25 26 27 28 12 Ex. 35 at 83:22–85:6. CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 20 4 1 VI. MOTION #6: CLASS REPRESENTATIVES' INCENTIVE AWARDS 2 In Motion #6, Plaintiffs seek to prevent CVS from informing the jury that the class 3 representatives may receive an "incentive award" if Plaintiffs prevail. The motion should be denied, 4 because the class representatives' financial incentives are highly relevant to their credibility as 5 witnesses. "The class representatives. . . [have] committed to appear at trial," Mot. 23, and therefore, 6 CVS is entitled to cross-examine each representative on any reason—such as a financial incentive— 7 that his testimony may be biased. 8 "Evidence of witness bias is generally relevant under Rule 401 and admissible to impeach a 9 witness." Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2010 WL 11505684, at *23–24 (C.D. Cal. 10 Jan. 25, 2010) (quoting United States v. Abel, 469 U.S. 45, 50–51 (1984) ("A successful showing of 11 bias on the part of a witness would have a tendency to make the facts to which he testified less 12 probable in the eyes of the jury than it would be without such testimony."), aff'd in part, 526 F. App'x 13 761 (9th Cir. 2013). As the Ninth Circuit has concluded: "Pecuniary interest may be shown to prove 14 bias." United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999) (finding trial court's exclusion of 15 witnesses' pecuniary bias violated defendant's constitutional rights, but finding error harmless). This 16 includes not only the fact of the witness's pecuniary interest, but the amount of money at issue, 17 "because the jury may reasonably believe that the willingness of a witness to lie or shade testimony 18 would be affected, not only by whether the results may benefit him, but also by how much." Id. 19 That a class representative stands to collect an incentive award, in addition to his individual 20 damages, is relevant to the jury's assessment of whether his testimony may be shaded by pecuniary 21 interest. The jury cannot understand properly that interest unless CVS can question the witness about 22 the potential that he may receive an incentive award if (but only if) Plaintiffs prevail at trial. 23 Contrary to their argument, this topic is not "unfairly" prejudicial to Plaintiffs for purposes of 24 Rule 403; far less does any alleged prejudice "substantially outweigh" the probative value of the 25 evidence for cross-examination. A witness's financial incentive to testify a particular way is a fair 26 subject of cross-examination and routinely is permitted at trial. See Harris, 185 F.3d 1008. 27 Furthermore, Plaintiffs' speculation that a jury may lower a damages award because the class 28 representative may recover an incentive award is unsupported guesswork. Mot. 23–24. There is no CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 21 4 1 reason to believe that the jury would disregard the Court's instructions concerning damages merely 2 because they have heard of incentive awards. If this were a real risk (it is not), the proper remedy 3 would be a limiting instruction, not exclusion of probative evidence. 4 * * * 5 Because CVS should be allowed to reference the full extent of Plaintiffs' pecuniary interests in 6 this case, the Court should deny Plaintiffs' Motion #6. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 22 4 1 VII. MOTION #7: THE IMPLICATION OF THE SIZE OF AN OVERCHARGE 2 Through Motion #7, Plaintiffs seek to prevent CVS from "claiming, suggesting, or implying 3 that the modest size of individual Plaintiffs' and class members' injuries or damages makes their 4 claims inconsequential, thus weighing against a finding of liability against CVS." Mot. 25. This is an 5 opaque, non-specific Motion, which would preclude relevant evidence and argument. The Court 6 should deny the Motion in its entirety. 7 By its terms, the Motion would prevent CVS from presenting a valid defense against several 8 prima facie elements of Plaintiffs' claims. Preventing CVS from arguing the amount of an overcharge 9 was "inconsequential," Mot. 25, for example, would prevent CVS from arguing that Plaintiffs have not 10 proven the materiality element of the New York consumer protection statute, or the reliance element 11 of the Arizona and Illinois statutes. Stutman v. Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000) (New 12 York elements); Kamal v. Eden Creamery, LLC, 2019 WL 2617041, at *15 (S.D. Cal. June 26, 2019) 13 (Arizona elements) Kalpake v. Regas, 2018 Il App (1st) 17-1282-U, 2018 WL 1631359, at *9 (Illinois 14 elements). CVS certainly is entitled to argue that some class representatives shopped at CVS, rather 15 than at lower-priced competitors, because some factors other than the price difference were more 16 important to them—e.g., CVS's proximity, customer service, and name recognition. See Ex. 33 at 17 57:20–58:8; Ex. 32 at 270:17–25; Ex. 36 at 162:16–19; Ex. 37 at 148:8–19; Ex. 35 at 117:16–118:15; 18 see also supra CVS Response to Plaintiffs' Motion #3. These facts tend to support CVS's defenses 19 that the amount of the overcharge was not material and that Plaintiffs did not rely on any alleged price 20 misrepresentation. 21 * * * 22 For the foregoing reasons, the Court should deny Plaintiffs' motion in limine to preclude 23 comment that the size of any individual alleged overcharges in this case "inconsequential" and 24 "weigh[s] against a finding of liability against CVS." Mot. 25. 25. 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 23 4 1 VIII. MOTION #8: CVS'S "GOOD ACTS" 2 In Motion #8, Plaintiffs seek an order barring any references to "CVS's 'good' corporate 3 conduct. . . unrelated to the pricing practices in this case." Mot. 27. 4 CVS recognizes that evidence of "good acts" not related to the parties' claims and defenses 5 typically is not admissible evidence. The company intends to comply with this rule at trial, and the 6 Court should make sure that Plaintiffs follow the rule as well. (As written, the Motion and Proposed 7 Order would prohibit only CVS from introducing "good acts" evidence.) In terms of specific actions 8 that would not be relevant, the Motion does not mention any (beyond unspecified "philanthropic 9 work" and "charitable donations"); determining relevance cannot occur in the abstract; and therefore 10 the Court should enforce this rule in response to objections as they arise during trial. 11 For example, CVS does not understand the rule to prevent a party from presenting background 12 information about themselves by way of introduction to the jury. For example, CVS is a retail 13 pharmacy services company and part of the "CVS Health" family of companies. CVS's mission is to 14 deliver high-quality retail pharmacy services to improve the health and lives of millions of patients 15 across the country. CVS does not consider the prohibition on irrelevant good act evidence to prevent 16 it from offering such background, but for the avoidance of doubt, CVS's commitment to protecting the 17 health and well-being of its patients should not be off limits at trial. 18 19 20 21 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 24 4 1 IX. MOTION #9: CROSS-EXAMINING EXPERTS WITH OPINIONS "NOT PRESENTED" 2 During discovery, Plaintiffs disclosed Dr. Robert Navarro, an expert in the PBM industry, and 3 Dr. Joel Hay, an economist primarily used to calculate damages. In two separate opinions, the Court 4 excluded certain opinions offered by each of these experts. 13 The Court subsequently denied 5 Plaintiffs' motion to disclose out of time two additional experts with expertise in pharmacy 6 contracting: Dale Chamberlain and Susan Hayes. 14 Plaintiffs appealed from the order concerning Dr. 7 Hay, but not the orders concerning Dr. Navarro, Mr. Chamberlain, or Ms. Hayes. The Ninth Circuit 8 reversed the exclusion of Dr. Hay. Corcoran v. CVS Health Corp., 779 F. App'x 431, 434–35 (9th 9 Cir. 2019). 10 Against this background, Plaintiffs move to preclude CVS from referencing "experts retained 11 or designated by plaintiffs but whose testimony… has been excluded or is otherwise not proffered at 12 trial." Mot. 28. The Motion does not identify any specific expert nor any specific opinion. Plaintiffs 13 have explained in the parties' meet-and-confer discussions, however, that the Motion is intended to 14 bar: (1) reference before the jury to either Mr. Chamberlain or Ms. Hayes, neither of whom will appear 15 at the trial; (2) cross-examination of Dr. Navarro or Dr. Hay concerning the fact that the Court has 16 excluded Dr. Navarro's opinion that membership program prices are U&C prices; and (3) cross- 17 examination of Dr. Navarro or Dr. Hay concerning any opinions they may have offered in their reports 18 or depositions but to which they do not testify on direct examination. 19 CVS agrees that it will not mention categories (1) and (2) before the jury, as long as Plaintiffs 20 do not mention them or otherwise open the door. Should Plaintiffs place the excluded opinions of 21 Navarro, Chamberlain, or Hayes at issue at trial, CVS would approach the Court about introducing 22 their opinions, or the fact that the Court has excluded them, in response. 23 Concerning category (3), CVS strongly opposes Plaintiffs' effort to limit cross-examination of 24 their experts to only the opinions Plaintiffs choose to offer to the jury. CVS has every right to cross- 25 examine Drs. Navarro and Hay with any prior opinion that contradicts their trial testimony or 26 otherwise undermines their credibility. 27 13 See Corcoran, 2017 WL 1065135, at *1 (excluding Dr. Navarro); Corcoran, 2017 WL 3873709, at 28 *1 (excluding Dr. Hay). 14 See Order Denying Admin. Mot. for Leave to Disclose Two Experts (June 15, 2017) [ECF No. 298]. CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 25 4 1 It is clearly-established law that a party may cross-examine an expert with his prior 2 inconsistent opinion, or may cross-examine a different expert offered by the same party with the first 3 expert's inconsistent opinion, to show that the experts' opinions contradict each other. See, e.g., 4 McConnell v. United States, 393 F.2d 404, 407 (5th Cir. 1968) (reversible error to prohibit thorough 5 examination of an expert "on the question of a possible prior inconsistent opinion"); In re Prempro 6 Prod. Liab. Litig., 2012 WL 13034062, at *3 (E.D. Ark. Apr. 9, 2012) ("Defendants point out that 7 several of Plaintiffs' experts have taken inconsistent positions as this Daubert process has unfolded. If 8 true, Defendants may impeach the experts with their prior inconsistent statements and a jury can weigh 9 the expert testimony accordingly"); Velasquez v. United States, 1993 WL 45306, at *1 (9th Cir. Feb. 10 23, 1993) ("counsel may refer to other evidence in the record to test the opinion of an expert during 11 cross-examination"). Vaughan Furniture Co. v. Featureline Mfg., 156 F.R.D. 123, 128 (M.D.N.C. 12 1994) ("A change of opinion by the expert can be an important fact. Such documents are necessary 13 for appropriate cross-examination") (citations omitted); Occulto v. Adamar of N.J., Inc., 125 F.R.D. 14 611, 615 (D.N.J. 1989) ("Meaningful discovery of an expert's opinions is necessary to foster effective 15 cross-examination, Advisory Committee Notes, Rule 26(b)(3) (1970), and an expert's prior opinions 16 on the same subject matter are clearly discoverable."). 17 Notably, all of the cases Plaintiffs cite in Motion #9 address a very different situation, where a 18 party attempts to offer evidence of a testifying expert's opinions from a different case. Mot. 28–29. 19 Plaintiffs offer no authority for prohibiting CVS from cross-examining Drs. Navarro and Hay about 20 the prior opinions they have offered in this case. Such cross-examination clearly is permissible. 21 These principles are especially important here, because Drs. Navarro and Hay have, between 22 them, authored at least eight reports and declarations in the course of class certification briefing and 23 "merits" discovery. In those reports and declarations, the experts have offered contradictory opinions 24 and rationales, and which CVS is permitted to use at trial to cross-examine the experts' testimony. For 25 example, CVS's prior motion to exclude Dr. Hay's opinion about the meaning of "usual and 26 customary" price laid bare his shifting explanations of that phrase. In October 2016, Dr. Hay said the 27 U&C price was the pharmacy's "most common price." In December 2016, Dr. Hay said the U&C 28 price was not the most common price, but the lowest price paid by the bottom 1% of a pharmacy's CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 26 4 1 customer base. Then, in March 2017, Dr. Hay claimed a U&C price was a "routine and minimal" 2 price, yet another standard that appears nowhere in any industry publication. See generally CVS's 3 Mot. to Exclude the Op. Test. of Dr. Hay, June 6, 2017, ECF No. 287 (describing this chronology of 4 opinions). Simply put, whatever Dr. Hay would say at trial makes a price "usual and customary," 5 CVS may cross-examine him with his own prior definitions of that term. CVS can use the same 6 statements to cross-examine Dr. Navarro on the definition of "usual and customary" to show that 7 Plaintiffs' two experts have conflicting views. Plaintiffs' motion should be denied to the extent it 8 seeks to restrict such cross-examination. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 27 4 1 X. MOTION #10: DEPOSITION DESIGNATIONS 2 The parties are not due to exchange deposition designations until June 12, 2020, Order re: Trial 3 Scheduling, ECF No. 425. Until that date, the parties will not know whether Plaintiffs and CVS intend 4 to present deposition testimony at trial from any of the same witnesses, let alone which witnesses or 5 what testimony. Nonetheless, Plaintiffs seek a blanket order requiring that any deposition testimony 6 the parties may designate from the same witness be played separately to the jury, in the parties' 7 respective cases-in-chief. Under Plaintiffs' proposed approach, the designations from the same 8 witness would not be combined and presented to the jury in the order the testimony appears in the 9 transcript. (The only exception is that any counter-designated excerpts deemed necessary under the 10 rule of completeness could be played with the affirmative designations. Mot. 30.) Because such a 11 "bifurcated" approach to presenting deposition testimony departs from ordinary practice and is 12 inefficient, the Court should deny the Motion. 13 Citing two factually inapposite cases, Plaintiffs argue this bifurcated approach is necessary to 14 "facilitate the orderly presentation of evidence" and to "avoid interruption, disjointedness, and 15 confusion." Mot. 30. Plaintiffs have it backwards. As is customary, whether for witnesses appearing 16 live or by deposition, the witness should be examined by both parties in one (and only one) trip to the 17 witness stand. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., 2016 WL 4493863, at *2 n.3 18 (S.D.N.Y. Aug. 24, 2016) (noting court's rule that, "absent good cause, witnesses called by both 19 parties should testify only once"); cf. Fed. R. Evid. 611(b) ("The court may allow inquiry into 20 additional matters as if on direct examination."). This makes good sense, particularly for deposition 21 designations: Playing pieces of the same witness's deposition testimony at different times, and 22 potentially with many days in between, is inefficient, disjointed, and likely to confuse the jury. See In 23 re Gen. Motors LLC Ignition Switch Litig., 2016 WL 4493863, at *2 n.3 ("[C]ounter-designations 24 should be played along with Plaintiff[s'] designations, even if they arguably go beyond the scope of 25 the latter." (internal quotation marks omitted)). For example, if CVS's excerpts for a witness whose 26 deposition was first played during Plaintiffs' case-in-chief are not played until the defense case, the 27 jury is unlikely to remember the Plaintiffs' excerpts that CVS's designations are seeking to rebut. If 28 all designations for the witness are played at once, and in transcript-order, there will be no confusion, CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 28 4 1 and no need to replay any of the prior testimony. The jury will hear the testimony in the same, natural 2 way it unfolded at the deposition. 3 Neither of the cases Plaintiffs cite warrants departing from the ordinary practice. First, in In re 4 Urethane Antitrust Litigation, the court assessed the sequence for playing deposition designations on a 5 witness-by-witness basis. See Ex. S at 5–7. It did not announce the blanket rule that Plaintiffs are 6 endorsing here—that the defendant's designations for the same witness designated by the plaintiff 7 should not be played until the defense case (and vice versa). Second, in Blue Cross & Blue Shield v. 8 Philip Morris, Inc., 199 F.R.D. 487, 489 (E.D.N.Y. 2001), the court was faced with 600 hours of 9 deposition testimony on issues that were "complex in their totality and their importance"—many 10 multiples of the number of trial hours the Court has allotted for the entire trial here, much less for 11 testimony by deposition designations. 12 Relying on these very same cases, plaintiffs in another case in this District made an identical 13 request to bifurcate deposition testimony. See Pls.' Trial Structure Br. 6–7, In re Lidoderm Antitrust 14 Litig. No. 14-md-02521-WHO (N.D. Cal. Oct. 20, 2017), ECF No. 889. 15 Judge Orrick denied the 15 request, concluding "[t]he Court is inclined to hear from deponents only once, whether video 16 depositions are available or not." See Civil Minutes, In re Lidoderm Antitrust Litig. No. 14-md- 17 02521-WHO (N.D. Cal. Nov. 13, 2017), ECF No. 912. The same conclusion is warranted here. 18 The Court should deny Motion #10 outright. At a minimum, however, it should reserve 19 judgment until closer to trial, when it can consider Plaintiffs' request in light of the parties' actual 20 deposition designations. Prior to that time, the Court and the parties would only be guessing at the 21 practical effect of Plaintiffs' bifurcation proposal. See, e.g., In re Tylenol Mktg., 2016 WL 3125428, at 22 *9 (E.D. Pa. June 3, 2016) (refusing to consider motion in limine to exclude presentation of 23 defendants' designations during plaintiff's case-in-chief until "deposition designations are 24 submitted"); In re Gen. Motors LLC Ignition Switch Litig., 2016 WL 4493863, at *2 ("The Court is 25 unable to evaluate that objection in the abstract"). 26 27 28 15 Motion #10 appears to be a copy-and paste of the motion in In re Lidoderm. CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 29 4 1 CONCLUSION 2 The Court should deny Plaintiffs' motions in limine, in whole or in part, as set forth above. 3 4 Dated: May 5, 2020 Respectfully submitted, 5 6 By: Grant A. Geyerman ______________ 7 Enu Mainigi (admitted pro hac vice) 8 Grant A. Geyerman (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 9 725 Twelfth Street, N.W. Washington, DC 20005 10 Telephone: (202) 434-5000 11 Facsimile: (202) 434-5029 12 Edward W. Swanson (Cal. Bar No. 159859) 13 August Gugelmann (Cal. Bar No. 240544) 14 SWANSON & MCNAMARA LLP 300 Montgomery Street, Suite 1100 15 San Francisco, CA 94104 Telephone: (415) 477-3800 16 Facsimile: (415) 477-9010 17 Attorneys for Defendant CVS Pharmacy, Inc. 18 19 20 21 22 23 24 25 26 27 28 CVS OMNIBUS OPPOSITION TO CASE NO. 15-CV-03504-YGR PLAINTIFFS' MOTIONS IN LIMINE 30