Courtroom Shortages Mean Delay For CVS Overcharge Trial

By Cara Salvatore
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Law360 (March 31, 2021, 9:53 PM EDT) -- A class of prescription-drug buyers will have to wait an extra week to start a trial against CVS Pharmacy Inc. for alleged overcharges, a Bay Area federal judge ruled Wednesday, saying the district's judges were "jockeying for courtroom space" as pandemic conditions improve.

The patients claim CVS inflated the prices charged to their third-party insurers and pharmacy benefit managers to make up for the drugstore chain's steep discounts to the uninsured through a since-discontinued program called Health Savings Pass.

U.S. District Judge Yvonne Gonzalez Rogers said Wednesday that, with the case pending since 2015, "it needs to go" to trial.

"I am moving your trial date by one week because I need a courtroom. Someone's got the courtroom before me," Judge Gonzalez Rogers told the parties, giving them a new date of June 7 for jury selection, with opening arguments June 8.

A second courtroom will also be set aside to enable jurors to socially distance during deliberations. The Oakland courthouse is already holding in-person criminal trials, and it expects to begin civil trials the last week in April if coronavirus case counts in the Bay Area continue improving and bring the entirety of the area into a targeted safety tier, Judge Gonzalez Rogers said.

Witnesses will wear masks while testifying at the trial; the court is providing clear ones so jurors can keep as full a view of witnesses' faces as possible. The lawyers must also wear masks.

CVS' lead lawyer, Enu Mainigi, asked if there was a possibility of pushing the trial back "a couple of months" to allow for the possibility that COVID will worsen, as well to accommodate another trial in which Mainigi is involved starting May 3.

Judge Gonzalez Rogers' response was a flat "no."

Trial will run four days a week — no Thursdays — from 8:30 a.m. to 1:30 p.m., with no lunch break. The judge also will not allow sidebar conferences and will keep a 4½-hour trial day clock ticking each day; each side gets 24 hours of total time. There will be nine jurors and no alternates, the judge said.

Judge Gonzalez Rogers told the parties she would likely review filings on the weekends in the run-up to the trial.

"These days, that's when I'm resolving this kind of stuff. It's on the weekends. We are in a seven-day-a-week mode these days. Everybody understand?" the judge said.

Also Wednesday, CVS argued in a filed motion that a substitute expert witness for the plaintiffs was trying to sneak in new opinions.

The medication-pricing expert witness is trying to finesse definitions from the report of the expert he replaced, even though Judge Gonzalez Rogers ordered that one condition of allowing the witness substitution was that changes like that were prohibited, CVS said.

Substitute expert Kenneth Schafermeyer's opinions on "the purported industry definitions of [usual and customary drug prices] and 'cash' are not only new, but fundamentally conflict with and change" those of the previous expert, Joel Hay, CVS said.

Hay was booted by the plaintiffs' camp after it came to light that he had "debatable and divisive positions on COVID-19," CVS quoted the plaintiffs as having said.

Robert Gilmore, a lawyer for the plaintiffs, said by email Wednesday, "As we will show in our opposition brief, CVS's motion has tried to manufacture an issue where none exists; plaintiffs and Dr. Schafermeyer complied with the court's order."

The case has had a long road to trial. Judge Gonzalez Rogers granted CVS summary judgment in September 2017, but the Ninth Circuit revived the case, finding that the judge erred by giving equal weight to the consumers' and CVS' evidence when she was in fact required to "draw all reasonable inferences from the evidence in plaintiffs' favor."

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.

The consumers are represented by Elizabeth Pritzker of Pritzker Levine LLP; Bonny Sweeney of Hausfeld LLP; and Robert Gilmore of Stein Mitchell Beato & Missner LLP.

CVS is represented by Grant Geyerman, Enu Mainigi 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 Dorothy Atkins, Adam Lidgett and Mike LaSusa. Editing by Peter Rozovsky.

Correction: A law firm name and a lawyer name were misstated. The errors have been corrected.

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