Judge finds documents relevant to drug wholesalers' case over allergy injector pricing
Drug wholesalers accusing Viatris Inc and pharmacy benefit managers of conspiring to drive up the price of the EpiPen anti-allergy auto-injector have won a bid to make Amneal Pharmaceuticals Inc, which makes a competing auto-injector, turn over documents that they hope will bolster their case.
U.S. Magistrate Judge John Docherty in Minnesota ruled Friday that the requested documents, which concern Amneal's negotiations with pharmacy benefit managers (PBMs) about pricing and insurance coverage for its Adrenaclick injector, could show whether the PBMs boosted EpiPen's market share at rivals' expense.
"What Amneal proposed to the PBMs, and what Amneal observed about the PBMs' reactions, is relevant," the judge wrote.
He rejected Amneal's argument that producing the documents would be too burdensome, though he ordered the wholesalers — Rochester Drug Co-Operative Inc and Dakota Drug Inc — to pay 80% of the cost.
Lawyers for the plaintiffs and Amneal did not immediately respond to requests for comment.
The EpiPen, which treats life-threatening allergic reactions, is manufactured by Pfizer Inc but sold by Viatris, which was formed by the merger of Mylan NV and Pfizer's Upjohn unit.
The wholesalers allege that in exchange for generous rebates, the PBMs — UnitedHealthcare's Optum RX Inc, CVS Caremark and Cigna's Express Scripts Inc - gave EpiPen favorable placement on the formularies that determine what insurers will cover, even though other products like Adrenaclick were cheaper.
That allowed Mylan to raise the price of a pair of EpiPens to $600 by 2016, from $100 in 2008, the wholesalers said.
They say that the scheme ended around 2017 amid increasing scrutiny, after which Adrenaclick's market share rose from 6% to 28%. Adrenaclick was sold by Impax Laboratories LLC before its acquisition by Amneal in 2018.
Viatris in February settled a similar lawsuit filed by indirect EpiPen purchasers, including consumers and health plans, for $264 million. The settlement came after a district court judge dismissed most of the case, leaving only claims about an allegedly anticompetitive patent settlement.
Pfizer settled related claims for $345 million last July.
The subpoena case is Rochester Drug Co-Operative v. Mylan Inc, U.S. District Court for the District of Minnesota, No. 0:22-mc-7. The larger EpiPen case is In re: EpiPen Direct Purchaser Litigation, No. 20-cv-827, in the same court.
For plaintiffs: Bruce Gerstein of Garwin Gerstein & Fisher
For Amneal: Elliott Davis of Shook, Hardy & Bacon