Pharma Company Can’t Decertify Class of EpiPen Buyers Ahead of Trial, Judge Rules

Mylan EpiPen Delayed Release Class Action Lawsuit Overview:

• Who: EpiPen consumers are suing pharmaceutical company Mylan.
• Why: The consumers say Mylan, which sells EpiPens, and Pfizer, which makes it, conspired to create a monopoly over the product, ramping up its price. Pfizer has settled with plaintiffs already. 
• Where: The case is set to go to trial in a Kansas federal court.

Pharmaceutical company Mylan can’t scrap a class of EpiPen buyers ahead of its class action trial in January, a Kansas federal judge has ruled.

U.S. District Judge Daniel D. Crabtree filed an order Dec. 15 mostly denying Mylan’s bid to decertify antitrust class action claims against it ahead of the Jan. 22 trial.

In the class action, plaintiffs allege that Mylan conspired with Pfizer to create a monopoly over EpiPens, an autoinjector used to treat anaphylaxis, by ramping up the price. 

They say the pharmaceutical purposefully caused a delay in the release of cheaper EpiPen generics while the branded version climbed from $100 per item to $600 in a decade. 

Judge Says Brand Loyalty of Consumers To Be Determined At Trial 

Mylan had sought to have a group of EpiPen consumers decertified, arguing some consumers were so brand-loyal to EpiPen that they would have bought the product even if there was competition and therefore didn’t suffer harm. 

However, Judge Crabtree said the plaintiffs had presented an expert witness arguing that each member of the Class did suffer a concrete harm. The plaintiffs say even if some consumers never switched to the generic brand, they were still harmed by overpaying. 

Either way, Judge Crabtree said it was a matter to be determined at trial. 

“Although plaintiffs have come forward with a method for proving class wide injury for all EpiPen purchasers — brand loyal or not — a fact finder may not agree that the evidence shows what plaintiffs argue it does. A jury may accept [the expert’s] opinions about class wide injury. But, a jury also might reject those opinions.”

Pfizer Inc., Meridian Medical Technologies Inc., and King Pharmaceuticals Inc. — collectively the “Pfizer defendants” — agreed to a $345 million settlement in the EpiPen class action lawsuit in September. 

However, that settlement did not resolve claims against other defendants in the class action lawsuit, including Mylan.

Are you an EpiPen consumer? What do you think of the claims against Mylan? Let us know in the comments! 

The plaintiffs are represented by Warren T. Burns of Burns Charest LLP; Rex A. Sharp, Ryan C. Hudson and Ruth Anne French-Hodson of Sharp Law LLP; Paul J. Geller of Robbins Geller Rudman & Dowd LLP; Lynn Lincoln Sarko of Keller Rohrback LLP; and Elizabeth C. Pritzker of Pritzker Levine LLP.

The Mylan EpiPen Monopoly Class Action Lawsuit is In Re: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation, Case No. 2:17-md-02785, in the U.S. District Court for the District of Kansas. 

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