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In re EpiPen Epinephrine Injection USP Marketing, Sales Practies and Antitrust Litigation

United States District Court, D. Kansas

February 22, 2019

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Document Applies to the Class Cases

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE.

         This matter is before the Court on Mylan's Motion to Compel Class Plaintiffs to Produce Amended Responses to Interrogatories and Requests for Admission (ECF No. 1355). Mylan seeks an order requiring Class Plaintiffs to (1) respond to Interrogatories 3-6 of Mylan's Second Set of Interrogatories, and (2) produce amended responses to several of Mylan's First Set of Requests for Admission. Class Plaintiffs oppose the motion. As set forth below, the Court grants in part and denies in part Mylan's motion.

         I. Relevant Background

         On October 1, 2018, Mylan served its Second Set of Interrogatories and First Set of Requests for Admission on Class Plaintiffs. Class Plaintiffs timely responded to both. Mylan found their responses lacking in completeness, however, and the parties twice met and conferred and later exchanged correspondence to try to resolve their differences. Class Plaintiffs agreed to provide amended responses to both sets of discovery and, while they ultimately did so, their amended interrogatory answers came after Mylan's deadline to file a motion to compel and another session of meeting and conferring.

         Based on the parties' efforts, the Court finds they have complied with the requirements of D. Kan. R. 37.2.

         II. Summary of the Parties' Arguments

         Although Mylan agrees that Class Plaintiffs have now served amended answers to the four interrogatories at issue, Mylan argues in its reply that one answer still lacks facts relating to the interrogatory's key component. In addition, Mylan takes issue with Class Plaintiffs' mention of ongoing discovery, asserting that these interrogatories relate to coordinated discovery issues for which discovery closed on October 31, 2018.

         Mylan contends Class Plaintiffs' responses to six of its Requests for Admission are evasive and contain non-responsive statements and unsupported claims of lack of knowledge that should be stricken. Class Plaintiffs argue their responses comply with Rule 36, including qualifications to answers made in good faith.

         III. Legal Standards

         Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery and provides as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[1]

         Relevancy is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense.[2]Information still “need not be admissible in evidence to be discoverable.”[3] When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.[4] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[5] Relevancy determinations are generally made on a case-by-case basis.[6]

         Federal Rule of Civil Procedure 36 governs requests for admission. It allows a party to serve on any other party a written request to admit “the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.[7] Requests for admission serve “two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be [eliminated].”[8] The purpose of a request for admission generally is “not to discover additional information concerning the subject of the request, but to force the opposing party to formally admit the truth of certain facts, thus allowing the requesting party to avoid potential problems of proof.”[9] Determining the sufficiency of a party's response is a matter of the court's discretion.[10]

         IV. Analysis

         A. Interrogatory No. 3

         Mylan's Interrogatory No. 3 is a contention interrogatory that quotes part of two paragraphs of Class Plaintiffs' complaint in which they allege that Class Plaintiffs and putative class members paid higher prices for epinephrine auto-injectors due to Mylan's exclusionary agreements, including arrangements with PBMs and the EpiPen4Schools program.[11] In Interrogatory No. 3, Mylan asks Class Plaintiffs to state all material or principal facts supporting these allegations.[12]

         Mylan's motion sought only to compel Class Plaintiffs to serve an amended answer to the interrogatory, and in their response Class Plaintiffs state they had done so within three days of Mylan filing the motion. In its reply, however, Mylan points out that the amended answer includes no facts related to PBM contracts. When confronted with the omission, Class Plaintiffs asserted they had fully and appropriately responded to Interrogatory No. 3 as well as to Interrogatory No. 6.[13] The latter asks Class Plaintiffs to state the facts on which they base their contentions in paragraph 641 of the complaint. Among other things, paragraph 641 alleges PBM conspirators affirmatively misrepresented or concealed certain price increases and discounts that resulted in higher drug costs for Class Plaintiffs and others.[14] Plaintiffs' amended answer to Interrogatory No. 6 is extensive and detailed, including the document numbers for allegedly exclusionary contracts Mylan entered into with PBMs.[15]

         Mylan does not take issue with Class Plaintiffs' amended answer to Interrogatory No. 6.[16]However, the fact that Class Plaintiffs served an amended answer to one interrogatory that proved satisfactory-even if the subject matter is the same-does not excuse them from fully answering another interrogatory. And, of course, a belated objection is ineffective. Class Plaintiffs will be required to further amend their answer to Interrogatory No. 3 to include principal or material facts regarding PBM contracts.

         B. Requests for Admission

         Mylan asks the Court to review and find insufficient six of Class Plaintiffs' responses to the 84 requests contained in Mylan's First Set of Requests for Admission.[17] Mylan claims some of Class Plaintiffs' responses are inadequate because they do not admit “undisputable facts, ” while others are evasive and non-responsive. Mylan separates the allegedly deficient responses into three categories.

         1. Whether certain responses that do not admit “undisputable facts” are adequate

         Mylan complains that in response to RFA Nos. 29, 30, and 36, Class Plaintiffs refuse to admit that “rebates paid by pharmaceutical manufacturers like Mylan and Sanofi to PBMs and third-party payors are common, widespread, and are one of the principal means by which pharmaceutical manufacturers compete against one another.”[18] Mylan argues Class Plaintiffs' objections to some of the terms contained in these RFAs are baseless, and that Class Plaintiffs have avoided responding to them. To illustrate the demonstrable truth of the statements in RFA Nos. 29 and 30, Mylan points out that Sanofi admitted to similar RFAs.[19]

         Class Plaintiffs contend their objections are well-founded because the RFAs at issue do not seek admissions about Mylan's behavior, but instead ask Class Plaintiffs to admit factual statements about all drug manufacturers, PBMs, and third-party payors throughout an undefined pharmaceutical industry. Class Plaintiffs also point out that they provided substantive responses to each: they stated that after a reasonable inquiry, ...


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