Don't Bet On Aug. Trial In CVS Drug-Pricing Suit, Judge Says

By Dorothy Atkins
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Law360 (May 13, 2020, 9:13 PM EDT) -- A California federal judge told attorneys Wednesday there's a "slim" chance their fight over certified class claims that CVS Pharmacy Inc. overcharged consumers for generic drugs will head to trial in August due to the pandemic, saying it's "not entirely impossible, but I wouldn't bet money on it."

During a pretrial conference held via Zoom's videoconferencing tool, U.S. District Judge Yvonne Gonzalez Rogers noted that California still has shelter-in-place orders in effect, and California's Northern District has not yet figured out how courts are going to conduct jury trials, particularly since the current recommendation is that no more than 10 people should be in a room.

"It's still possible, but we haven't figured it out yet," the judge said.

Judge Gonzalez Rogers added that criminal trials take precedence over civil disputes and there's a criminal jury trial currently scheduled for the Oakland courthouse this summer, so it's unlikely that CVS and consumers will face off before a jury soon.

The lawsuit, which was filed in 2015, alleges that CVS overcharged insured customers by inflating the prices of drugs to third-party insurance providers and pharmacy benefit managers, in order to allegedly recover steep discounts CVS offered to uninsured customers through its program called Health Savings Pass, which has since been discontinued.

Judge Gonzalez Rogers granted CVS summary judgment in September 2017, but in June the Ninth Circuit revived the case, finding the judge erred by giving equal weight to both the consumers' and CVS' evidence when really she was required to "draw all reasonable inferences from the evidence in plaintiffs' favor."

Additionally, the appellate panel said, the district judge shouldn't have narrowed classes of consumers in California, Florida, Illinois and Massachusetts to include only consumers who had the same pharmacy benefit manager adjudicate their claims as their respective class representatives.

On remand, the consumers won a bid to certify classes of drug buyers in New York and Arizona, bringing the total number of certified classes in the case to six, and a trial date was set for Aug. 10.

But Judge Gonzalez Rogers said Wednesday it's unlikely the trial date will stick, and emphasized that for district judges "time is of the essence," because they have a lot on their plate. She said she's not going to spend a lot of time deciding the pretrial motions pending in the case, because they're not critical and she might push back deadlines.

She added that she'll try to give the parties as much notice as she can with respect to a new trial date, and offered her insights on the pending motions, but she told the attorneys they shouldn't expect that the August trial is a go.

"I did not want you to think that because I'm doing this [pretrial conference] that you're somehow going to end up in trial, because I just don't know if it's possible," Judge Gonzalez Rogers said.

In regards to the motions, Judge Gonzalez Rogers chastised both parties for filing broad motions seeking to exclude evidence at trial. She said such requests are intended to be for narrow, limited evidentiary issues, but both sides have sought to exclude "whole swathes of information, much of which is probative."

"You will find that many of your motions will be denied solely on that basis," the judge said, adding that they should consider themselves warned.

The consumers are represented by Elizabeth C. Pritzker and Caroline Corbitt of Pritzker Levine LLP, Bonny E. Sweeney, Samantha Stein and Theodore Francis DiSalvo of Hausfeld LLP, and Robert B. Gilmore of Stein Mitchell Cipollone Beato & Missner LLP.

CVS is represented by Grant A. Geyerman, Enu A Mainigi, Andrew Watts and Colleen Marie McNamara of Williams & Connolly LLP.

The case is Christopher Corcoran et al. v. CVS Health Corp., case number 4:15-cv-03504, in the U.S. District Court for the Northern District of California.

--Additional reporting by Adam Lidgett and Mike LaSusa. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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