By Sarah Jarvis

Law360 (January 25, 2021, 3:57 PM EST) -- EpiPen buyers have urged a Kansas federal court to grant their request for livestreamed testimony during an upcoming antitrust multidistrict trial accusing Pfizer and Mylan of inflating prices of the drug, saying it is the only way the jury can hear live testimony from critical witnesses.

The buyers, who accused the drugmakers of illegally inflating EpiPen prices, said in a reply Friday that current and former Pfizer and Mylan employees they intend to call as witnesses are not within their control, and that an order for remote video testimony is necessary to ensure the jury can hear their testimony live.

"Because defendants cannot dispute the substance of the motion, they fabricate procedural hurdles," the buyers said. "Their objections should be overruled, and the motion should be granted."

The companies argued earlier this month that the plaintiffs are unfairly asking for blanket permission to call remote witnesses in a Kansas federal court trial originally scheduled for April but postponed because of the pandemic. Pfizer and Mylan said Federal Rule of Civil Procedure 45 limits subpoenas to witnesses within 100 miles of a trial or within the same state, depending on circumstances.

But the buyers argued that this is a flawed reading of the rules, and that under the companies' interpretation, a party could only use subpoenas for remote testimony for people who are already subject to subpoenas for live, in-person testimony.

The buyers said that while the companies are trying to paint this litigation as an ordinary civil case, it is in fact multidistrict litigation "of national importance that is, if anything, more complex and vital than mass tort MDLs," adding that mass tort MDL case law applies here with more force.

The plaintiffs argued that the this case affects millions of people because of class certification, and individual class members won't have another shot at their own trial elsewhere. In February 2020, the court certified two nationwide classes of consumers seeking damages for racketeering and state antitrust violations from Mylan and Pfizer.

"On top of all this, the RICO schemes and antitrust violations did not occur only in one location where a central trial could have gathered all witnesses," the buyers said. "The twelve identified employees were deposed in seven states (and only one was in defendants' suggested New Jersey location), to say nothing of the named and unnamed plaintiffs across the country."

After postponing the trial in December, U.S. District Judge Daniel Crabtree signaled the trial could be rescheduled for the summer or fall.

The sprawling legal battle concerns prices for the emergency allergy medication and followed a backlash after the price of an EpiPen two-pack soared from $100 in 2007 to $600 in 2016.

EpiPen buyers say Mylan, which sells the EpiPen, and Pfizer, which makes it, conspired to maintain the emergency treatment's monopoly through rebates to insurers and Medicaid plans that refused to cover a competing medication. The drugmakers also used reverse-payment patent settlements and sham litigation to thwart the emergence of generic competitors, according to the consumers.

Counsel for all parties did not immediately respond to requests for comment Monday.

The consumers are represented by Warren Burns of Burns Charest LLP, Rex Sharp, Ryan Hudson and Ruth Anne French-Hodson of Sharp Law LLP, Paul Geller of Robbins Geller Rudman & Dowd LLP, Lynn Sarko of Keller Rohrback LLP, and Elizabeth Pritzker of Pritzker Levine LLP.

Mylan is represented by Adam Levin, David Foster, Carolyn DeLone, Kathryn Ali, Charles Loughlin, Justin Bernick and Benjamin Holt of Hogan Lovells, and Brian Fries and James Moloney of Lathrop GPM LLP.

Pfizer is represented by Dimitrios Drivas, Robert Milne, Raj Gandesha, Edward Thrasher and Kathryn Swisher of White & Case LLP, and Joseph Rebein, Zach Chaffee-McClure and Ashley Harrison of Shook Hardy & Bacon LLP.

The case is In re: EpiPen Marketing, Sales Practices and Antitrust Litigation, case number 2:17-md-02785, in the U.S. District Court for the District of Kansas.

--Additional reporting by Cara Salvatore and Dorothy Atkins. Editing by Adam LoBelia.

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