By Cara Salvatore

Law360 (January 11, 2021, 8:55 PM EST) -- Drugmakers Pfizer and Mylan told a federal judge it wouldn't be right to give blanket permission for livestreamed testimony in an upcoming trial in the EpiPen antitrust multidistrict litigation.

The drugmakers, facing consumer class claims alleging they illegally inflated EpiPen prices, on Friday said 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.

The drugmakers 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 they said the plaintiffs want to remotely question people beyond that reach.

"Plaintiffs seek a form of relief the rules do not countenance: permission to call any witness by video transmission at trial — no matter where the witness is located or whether plaintiffs can demonstrate good cause. ... Outside of the unique circumstances occasioned by the pandemic, defendants are not aware of a single court that has ever approved such a sweeping request where, as here, the case set for trial is not a bellwether trial or mass action," the drugmakers said.

Corporations have often taken a dim view of remote live testimony, as in Johnson & Johnson's 2016 battle over a remote examination in a bellwether trial concerning artificial hips, where one defense-side observer called the practice a form of "court-sanctioned harassment" of company employee witnesses.

The plaintiffs in that case, however, said the practice was fairly and solidly established and has been seen back to 1990.

Meanwhile, in the EpiPen trial, a judge in December postponed the April 13 trial date, finding it would be "not feasible" or prudent to hold a trial while the COVID-19 pandemic is raging.

U.S. District Judge Daniel Crabtree "reluctantly" agreed that the trial, which is expected to last up to seven weeks, must be pushed back.

The judge signaled the trial could be rescheduled for the summer or fall, and the parties are expected to file a status report on trial scheduling by Jan. 15.

The sprawling legal battle concerns prices for the emergency allergy medication and followed an eruption of 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 large 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.

In February 2020 the judge certified two nationwide classes of consumers seeking damages for racketeering and state antitrust violations from Mylan and Pfizer.

Representatives for the parties were not immediately available for comment.

The consumer class is represented by Warren Burns of Burns Charest LLP, Rex Sharp and Ryan Hudson 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 Dorothy Atkins, Khorri Atkinson, Anne Cullen and Meghan Kelly. Editing by Bruce Goldman.

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