United States District Court, D. Kansas
IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Order Applies to Consumer Class Cases
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on three motions: (1)
“Class Plaintiffs' Motion for Leave to
Preliminarily File Documents Under Seal and for Approval of
Sealing Process” (Doc. 1554); (2) “Mylan
Defendants' Motion to File Documents Under Seal in
Connection with Class Plaintiffs' Class Certification
Reply Brief” (Doc. 1568); and (3) non-party
OptumRx's motion to seal two exhibits (Doc. 1591). The
court grants plaintiffs' request to preliminarily file
under seal the exhibits in support of their Reply. And, the
court grants in part and denies in part the Mylan
defendants' motion and OptumRx's motion.
Legal Standard Governing Seal Requests
court incorporates into this Order the legal standard
governing seal requests set forth in the court's
Memorandum and Order addressing the requests to seal exhibits
attached to the Mylan and Pfizer defendants' responses to
plaintiffs' class certification motion. Doc. 1608 at 1-
Mylan defendants seek to seal two exhibits submitted in
support of plaintiffs' Reply and seek redactions to five
additional exhibits submitted in support of plaintiffs'
Reply. Doc. 1568 at 1; see also Doc. 1568-1 (chart
providing reasoning for seal and redaction requests). OptumRx
seeks to seal one exhibit and to redact portions of a second
exhibit. Docs. 1591, 1610. Both exhibits at issue in
OptumRx's motion also are at issue in the Mylan
defendants' motion, but OptumRx's motion asks the
court to approve more extensive redactions. Plaintiffs oppose
the seal and redaction requests. Docs. 1569, 1600. The court
has analyzed each request and announces the following
Exhibit 97 (Docs. 1554-3/1568-3)
97 is the reply expert report of Meredith Rosenthal, Ph.D.
Mylan seeks redaction of twelve passages in the report. Parts
1-8, following, discuss each of the 12 requests.
1 on page 6 of the report contains sales, pricing, and market
share data for epinephrine injectors. Doc. 1568-3 at 8. The
court previously authorized redaction of this material in a
nearly identical figure appearing in Ms. Rosenthal's
initial expert report. See Doc. 1477 at 2 (court
order); Doc. 1500-3 at 10-11 (redacted version of Ms.
Rosenthal's initial expert report). The court thus grants
Mylan's request to redact Figure 1. But, the court
advises Mylan that should this information prove important to
the court's resolution of the class certification issue,
the court will revisit this redaction request.
2 on page 7 of the report depicts price-trend data. Doc.
1568-3 at 9. Although the court previously authorized
redaction of this material, Figure 2 was presented by both
plaintiffs and Mylan in open court during the class
certification hearing. And, Mylan does not present an
argument overcoming the heightened strong presumption in
favor of public access where a document already has been
exposed to the public. The court thus denies the request to
redact Figure 2 from the reply expert report.
Paragraph 17, Including Footnote 22
17 of the reply expert report discusses Mylan's forecast
of sales if it withdrew the EpiPen single pack from the
market. Doc. 1568-3 at 14. The passages subject to
Mylan's redaction request reveal that Mylan performed a
market review, as well as the results of that review.
Id. But, the passages do not discuss Mylan's
methods or processes when performing its review. And, where
the analyses involve data from 2011 and 2012, the results of
the analyses appear stale. Mylan has not established how
public disclosure of this information is likely to
disadvantage its business interests unfairly. The court
denies the request to redact Paragraph 17, including Footnote
Paragraph 28, Including Footnote 37
court denies the request. While the highlighted passages
refer to Mylan's forecasting, they do so at a high level
of generality and without specifying Mylan's reasoning
when performing the forecast. And, this forecast, as well Ms.
Rosenthal's use of the forecast, were discussed in open
court at the class certification hearing.
sentence in Footnote 44 alludes to a Mylan internal document.
But, the sentence does not reveal anything about the methods
Mylan used to reach its conclusions. And, other than stating
that the information has been labeled as “Highly
Confidential, ” Mylan provides no insight how the
sentence, if exposed to the public, is likely ...