Corcoran et al v. CVS Health Corporation

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

Proposed Order

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Bonny E. Sweeney (Cal. Bar No. 176174) Robert B. Gilmore (admitted pro hac vice) 1 HAUSFELD LLP Edward H. Meyers (admitted pro hac vice) 2 600 Montgomery St., Suite 3200 STEIN MITCHELL BEATO & MISSNER LLP San Francisco, California 94111 901 15th Street, N.W., Suite 700 3 Tel: 415-633-1908 Washington, D.C. 20005 Fax: 415-358-4980 Tel: 202-737-7777 4 bsweeney@hausfeld.com Fax: 202-296-8312 rgilmore@steinmitchell.com 5 Richard Lewis (admitted pro hac vice) emeyers@steinmitchell.com 6 Sathya S. Gosselin (Cal. Bar No. 269171) HAUSFELD LLP Elizabeth C. Pritzker (Cal. Bar No. 146267) 7 1700 K St. NW, Suite 650 Jonathan K. Levine (Cal. Bar No. 220289) Washington, D.C. 20006 Caroline Corbitt (Cal. Bar No. 305492) 8 Tel: 202-540-7200 PRITZKER LEVINE LLP Fax: 202-540-7201 1900 Powell Street, Suite 450 9 rlewis@hausfeld.com Emeryville, California 94608 10 sgosselin@hausfeld.com Tel. 415-692-0772 Fax. 415-366-6110 11 ecp@pritzkerlevine.com jkl@pritzkerlevine.com 12 ccc@pritzkerlevine.com Class Counsel 13 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 17 18 Christopher Corcoran, et al., on behalf of Case No. 4:15-cv-03504-YGR-JSC themselves and others similarly situated, 19 CLASS ACTION Plaintiffs, 20 [PROPOSED] ORDER RE: v. 21 PLAINTIFFS' OPPOSED MOTIONS IN CVS Pharmacy, Inc., LIMINE NOS. 1-10 22 Defendant. 23 24 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 1 This matter came before the Court on May 15, 2020, for hearing on Plaintiffs' Motions In 2 Limine (Dkt. ___). Having considered the parties' submissions and arguments, and for good cause 3 appearing, 4 IT IS HEREBY ORDERED: 5 6 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 7 1: Testimony as to the 403, 602, 701, and 802.  Granted 8 PBMs' purported  Denied understanding or  Granted with Modification: 9 interpretation of the CVS-PBM Contracts. _____________________________________ 10 _____________________________________ 11 _____________________________________ 12 _____________________________________ 13 The Court now rules that Plaintiffs' Motion In Limine No. 1 is GRANTED. Defendant may 14 not elicit testimony from, or otherwise present evidence or argument regarding, six former pharmacy benefit manager ("PBM") employees (Joseph Zavalishin, Michael Reichardt, Franceen 15 Spadaccino, William Strein, Cal Corum, and William Barre) and a current PBM employee (Amber 16 Compton) regarding the "usual and customary" ("U&C") terms in the five CVS-PBM agreements at issue in this case (the "PBM agreements"). Defendant also may not present evidence or argument 17 that the PBMs "were not deceived" by CVS's failure to report its HSP prices as U&C. 18 19 20 21 22 23 24 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 2 1 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 2 2: Evidence concerning and 403.  Granted 3 other pharmacies, and  Denied concerning federal and  Granted with Modification: 4 state governmental actors, relating to cash _____________________________________ 5 discount prices and _____________________________________ U&C reporting. 6 _____________________________________ 7 _____________________________________ 8 The Court now rules that Plaintiffs' Motion In Limine No. 2 is GRANTED. Defendant may 9 not present evidence or argument about whether pharmacies other than the Defendant did or did not report membership cash discount prices as U&C prices. Defendant also may not present 10 evidence or argument concerning federal or state governmental actors' positions on membership 11 prices and U&C reporting, including regulations, litigation and enforcement actions. 12 In addition, the Court now rules that this limitation does not encompass underlying evidence (e.g., documents, depositions, or trial testimony) produced or generated in such lawsuits that is 13 otherwise relevant and admissible in this case, but such evidence, if admitted, must be introduced 14 here without reference to the name or nature of the lawsuit in which it was originally adduced. 15 16 MOTION BASIS ORDER 17 Motion In Limine No. Fed. R. Evid. 401, 402, 3: Plaintiffs' purchases and 403.  Granted 18 (or potential purchases)  Denied from other pharmacies.  Granted with Modification: 19 _____________________________________ 20 _____________________________________ 21 _____________________________________ 22 _____________________________________ 23 24 The Court now rules that Plaintiffs' Motion In Limine No. 3 is GRANTED. Defendant may not present evidence or argument that Plaintiffs did make, or could have made, purchases of their 25 relevant prescriptions at a pharmacy other than CVS during the class period. 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 3 1 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 403. 2 4: Cumulative expert  Granted 3 testimony.  Denied  Granted with Modification: 4 _____________________________________ 5 _____________________________________ 6 _____________________________________ 7 _____________________________________ 8 The Court now rules that Plaintiffs' Motion In Limine No. 4 is GRANTED. Because the 9 proffered testimony from three of its expert witnesses (Pamela Wyett, John Jones, and Edward McGinley) is duplicative, Defendant must select one of the three expert witnesses for trial 10 testimony to prevent cumulative testimony. 11 12 13 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 14 5: References to and 403.  Granted Plaintiffs' case as  Denied 15 "lawyer-driven",  Granted with Modification: 16 references to circumstances under _____________________________________ 17 which plaintiffs hired _____________________________________ their lawyers, and 18 references to class _____________________________________ counsel's attorneys' 19 _____________________________________ fees. 20 The Court now rules that Plaintiffs' Motion In Limine No. 5 is GRANTED. Defendant may 21 not present evidence or argument that this litigation is "lawyer-driven". Defendant also may not present evidence or argument as to the motivations or circumstances of how, when, or why the 22 parties selected or hired counsel, or to any referral arrangements or other counsel the parties may have retained or consulted beyond their current counsel. Defendant also may not present evidence 23 or argument as to the parties' attorneys' fees arrangements, or how litigation expenses are paid or 24 the amount of those expenses, in connection with this or any similar litigation. 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 4 1 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 2 6: References to and 403.  Granted 3 potential class  Denied representative fee  Granted with Modification: 4 awards. _____________________________________ 5 _____________________________________ 6 _____________________________________ 7 _____________________________________ 8 The Court now rules that Plaintiffs' Motion In Limine No. 6 is GRANTED. Defendant may 9 not present evidence or argument of any potential class representative incentive awards that Plaintiffs might receive as a result of a litigated judgment or settlement. 10 11 12 MOTION BASIS ORDER 13 Motion In Limine No. Fed. R. Evid. 401, 402, 7: Preclude argument and 403.  Granted 14 that the amount of  Denied 15 individual overcharges  Granted with Modification: weighs against finding of liability. _____________________________________ 16 _____________________________________ 17 _____________________________________ 18 _____________________________________ 19 20 The Court now rules that Plaintiffs' Motion In Limine No. 7 is GRANTED. Defendant may not present evidence or argument that the modest size of the individual Plaintiffs' and class 21 members' injuries or damages makes their claims inconsequential. 22 23 24 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 5 1 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 2 8: CVS's "good" and 403.  Granted 3 corporate conduct.  Denied  Granted with Modification: 4 _____________________________________ 5 _____________________________________ 6 _____________________________________ 7 _____________________________________ 8 The Court now rules that Plaintiffs' Motion In Limine No. 8 is GRANTED. Defendant may 9 not present evidence or argument as to the Defendant's supposed "good" corporate conduct such as philanthropic work, charitable donations, or other similar conduct unrelated to the conduct in 10 this case. 11 12 13 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 401, 402, 14 9: Experts not and 403.  Granted testifying or opinion  Denied 15 not presented.  Granted with Modification: 16 _____________________________________ 17 _____________________________________ 18 _____________________________________ 19 _____________________________________ 20 The Court now rules that Plaintiffs' Motion In Limine No. 9 is GRANTED. Defendant may 21 not present evidence or argument regarding experts retained or designated by Plaintiffs but whose testimony – in whole or in part – has been excluded or is otherwise not proffered at trial. 22 23 24 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 6 1 MOTION BASIS ORDER Motion In Limine No. Fed. R. Evid. 106, 2 10: Requiring that any 611(b); Fed. R. Civ. P.  Granted 3 deposition video 32(a)(6).  Denied testimony be  Granted with Modification: 4 bifurcated, with direct and cross examination _____________________________________ 5 clearly presented by the _____________________________________ proffering party's 6 attorney during that _____________________________________ 7 party's case-in-chief. _____________________________________ 8 The Court now rules that Plaintiffs' Motion In Limine No. 10 is GRANTED. Defendant may 9 not play its deposition designations in Plaintiffs' case-in-chief except when otherwise required for completeness; instead, Defendant's designated deposition testimony will be played in Defendant's 10 case-in-chief (along with Plaintiffs' designations for completeness). 11 12 13 14 15 16 17 IT IS SO ORDERED. 18 19 Dated: ______________, 2020 _________________________ 20 HON. YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 PROPOSED ORDER RE: PLS.' MOTION IN LIMINE NOS. 1-10 CASE NO. 4:15-CV-03504-YGR 7