P.O.

Box 10841
Eugene, Oregon 97440
p/f: 541.257.8878
info@t1df.org
www.t1df.org
November 3, 2019

Honorable Teresa J. James Emailed and sent via FedEx

Magistrate Judge
United States District Court
500 State Avenue, Suite 208
Kansas City, Kansas 66101

RE: In re: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust
Litigation, MDL No. 2785 / Civil Action No. 17-2785 (EpiPen MDL) 1
Filing of Served Plaintiffs’ Merits Expert Reports

Dear Judge James,

The Type 1 Diabetes Defense Foundation (“T1DF”) is an interested third party in the
above-mentioned case (“EpiPen MDL”). We have no current relationship with any of the parties;
we speak solely on behalf of people with insulin-dependent diabetes who have been injured by
the failure of Third Party Payers (“TPPs”) to base plan parameters (tiered copays, coinsurance
payments, deductible amounts, premium rates, other benefit thresholds) on the low net prices
they demand from drug manufacturers. 2 In 2018, our former counsel, Keller Rohrback, tolled our
claims against TPPs in a related insulin pricing case. We were allowed to unconsolidate Boss v.
CVS Health from In re Insulin Pricing Litigation and to withdraw all our claims without
prejudice.3 We are seeking legal representation to refile our claims against TPPs after the tolling
agreement terminates. In the meantime, we believe that this EpiPen MDL may be directly related

1 Unless otherwise specified, docket/ECF numbers refer to papers filed in this case.
2 According to a peer-reviewed article from researchers associated with the U.S. Food and Drug
Administration and the University of Maryland School of Pharmacy, TPPs demand rebates on certain
insulins as high as 91% of WAC/list price. Mattingly, T.J., Levy, J.F., Slejko, J.F. et al.
PharmacoEconomics (2018) 36: 1093 available at: https://link.springer.com/article/
10.1007%2Fs40273-018-0667-9#citeas. The article concluded that “[m]anufacturer-reported average net
prices may provide a close approximation of the average discounted price granted to the VA, suggesting
they may be a useful proxy for the true pharmacy benefits manager (PBM) or payer cost.” [Emphasis
added.]
3In re Insulin Pricing Litigation, Civil Action No. 17-699 / Boss v. CVS Health, Civil Action No.
17-1823; Bewley v. CVS Health, Civil Action No. 17-12031; Prescott v. CVS Health, Civil Action No.
17-13066.

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to the dispute between individual patients and payers outlined in Boss v. CVS Health—a dispute
that this Court seems now to be asked to adjudicate as part of the class certification process. This
is obviously of great concern to us. But as members of the general public without, at this
juncture, the ability to secure legal representation, we have no recourse in this EpiPen MDL but
to rely on the Court’s fiduciary duty to protect absent class members.

We would therefore like to bring the following docket management matter to your
attention:

During the Class Certification Hearing, Phase 2, on June 12, 2019 (which I attended),
Counsel handed to the Court papers, including copies of the presentation slides they used during
their oral argument. Plaintiffs’ presentation used during the Class Certification Hearing, Phase 2,
included four slides on the issue of intra-class conflict and several slides on damages that
referenced expert reports from, inter alia, Dr. Meredith Rosenthal and Professor Einer Elhauge.
These reports, as summarized by Plaintiffs Counsel, seemed to allocate about 70% of the claimed
damages to TPPs. The apparent conflict between TPPs and patient/consumers and the related
damages allocation underpinning the merits expert reports are matters of critical interest and
precedential importance for all U.S. patients who must use manufacturer-rebated
pharmaceuticals to treat specific medical conditions (including rheumatoid arthritis, severe
allergy, diabetes, and asthma) and who have been overcharged by TPPs based on gross pharmacy
reimbursements or AWP instead of the much lower net prices TPPs negotiate directly with drug
manufacturers or indirectly via their PBM agents.

As required by Scheduling Order No. 9, Class Plaintiffs indicate that they served to all
Defendants their merits expert reports on October 31, 2019. These reports, and more specifically
the Merits Expert Report of Dr. Meredith Rosenthal, seem to be directly relevant to the apparent
issue of intra-class conflict, as they expand upon and finalize the reports previously submitted in
support of class certification. Whether Dr. Rosenthal continues to recommend that 70% of any
damages awarded go to the TPP subclass instead of the individual subclass is a matter of great
interest to the absent class members, to potential plaintiffs in similar actions, and to the general
public.

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 Plaintiffs do not seem to be required to file these reports at this juncture. This approach
(serve now, file later if used) reasonably avoids burdening the docket with documents that may
or may not be relevant to the final trial stage. In the context of a controversial class action with
strong indicia of intra-class conflict (as queried by the Court during the class certification
hearings), this default docket management approach would seem no longer to further the
efficient pursuit of justice and could in fact tend toward an opposite outcome. There seems to be
a simple docket management solution, i.e. electronic filing of these merits expert reports. Such a
filing, if allowed,4 would greatly improve the transparency of the litigation process and thus
benefit absent class members who do not have ready access to these merits expert reports.

Again, we are just lay interested parties. The purpose of this letter is merely to bring to the
attention of the Court a docket management issue (i.e. the possible filing of served Plaintiffs’
merits expert reports) that, if actually feasible, would greatly enhance the transparency of this
MDL and further the efficient rendition of justice.

Respectfully submitted,

Charles Fournier, Vice President

Type 1 Diabetes Defense Foundation

4This letter suggests a mere practical solution to a docket transparency issue. We make no representation
whatsoever regarding the legal merit of this suggestion, i.e. whether the Court has actual authority to
order, sua sponte, the filing of these expert reports under, e.g., Fed. R. Civ. P. 5(d) in compliance with
Local Rule CR49.1.

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