Classes Move for New Trial in Nexium Antitrust Class Action Lawsuit

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Direct purchaser, end payors, and individual retailers in the Nexium antitrust class action lawsuit filed motions for a new trial in Massachusetts federal court last week.

The class action lawsuit accuses drug makers AstraZeneca PLC and Ranbaxy Inc. of improperly delaying the roll out of the generic version of Nexium, a drug used to treat heartburn. The plaintiffs claimed that the drug makers entered into an agreement to delay the entry of the generic version of the drug improperly and resulted in a bottleneck delaying other drug makers from manufacturing and distributing the generic version of the drug as well.

The jury sided with the drug makers in a trial that concluded in December. Last week, the classes of plaintiffs argued for a new trial because of allegedly contradictory jury responses to two questions. The plaintiffs claim the problem originated from changes the court made to the jury questionnaire and instructions just before closing arguments were held in the original trial.

The plaintiffs argue that because U.S. District Court Judge changed the theory of liability, the plaintiffs were allowed to pursue at the last minute as well as the language in the fourth item in the jury questionnaire, combined with jury confusion “arising from the seismic shift in the court’s framing of issues to be tried, along with shifting instructions on the role of patents on liability and causation issues,” resulted in the jury rejecting the plaintiffs’ case on the fourth question despite concluding that the settlement had harmed competition.

In their motion for a new trial, the plaintiffs argued that although the first three questions in the jury questionnaire were framed correctly to the jury, the fourth question was famed improperly because the question focused on the drug maker AstraZeneca’s subjective desires if it could not pay off Ranbaxy, rather than the entry date of the generic drug without the allegedly anti-competitive agreement between the drug makers.

“The charge was confusing, saying the standard is objective but then instructing the jury to consider what AstraZeneca itself, rather than a reasonable manufacturer in AstraZeneca’s position, would have done,” contended that plaintiffs in their motion. “And” they continued, “the court wrongly excluded all objective economic evidence of how free market conditions would have achieved a violation-free result, evidence directly relevant to the jury’s analysis.”

Individual retailers also joined the plaintiffs’ request for a new trial and separately filed a motion with the court emphasizing that the judge’s “fundamental misunderstanding of plaintiffs’ legal theory requires a new trial.”

Class Members are represented by Steve D. Shadowen of Hilliard & Shadowen LLC, Kenneth A. Wexler of Wexler Wallace LLP, J. Douglas Richards of Cohen Milstein Sellers & Toll PLLC and Jayne A. Goldstein of Pomerantz Grossman Hufford Dahlstrom & Gross LLP.

The Nexium Antitrust Class Action Lawsuit is In re: Nexium Antitrust Litigation, Case No. 1:12-cv-02409-WYG, in the U.S. District Court for the District of Massachusetts.

UPDATE: A settlement has been reached to resolve a portion of this Nexium antitrust class action lawsuit. Details on the deal can be found here.