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In re Epipen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

June 14, 2019

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

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This 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.

         I. Legal Standard Governing Seal Requests

         The 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- 3.

         II. Analysis

         The 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 conclusions.

         A. Exhibit 97 (Docs. 1554-3/1568-3)

         Exhibit 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. Figure 1

         Figure 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. Figure 2

         Figure 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.

         3. Paragraph 17, Including Footnote 22

         Paragraph 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 22.

         4. Paragraph 28, Including Footnote 37

         The 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.

         5. Footnote 44

         One 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 ...


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