District court rules need for documents in fraud, co-conspiracy case against pharmacy

By Charmaine Little | May 17, 2018

ST. LOUIS -- The response by pharmaceutical companies to fraud and co-conspirator allegations by a major competitor resulted in a ruling from the U.S. District Court Eastern District of Missouri, according to a May 7 opinion.

Precision RX Compounding, LLC, Northern VA Compounders, PLLC, Toth Enterprises, II, PA, The Daily Dose, LP, and CPRX Pharmacy, LP (Plaintiffs) filed a lawsuit against Express Scripts Holding Company and Express Scripts Inc., alleging a conspiracy campaign between major pharmacy benefit managers in an attempt to put the plaintiffs out of business, violating federal antitrust laws.

Express Scripts responded with a motion to compel certain documents and files, which the district court denied. 

The plaintiffs said they would provide relevant documents to prove their case but the court decided this portion of the motion was moot.

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For documents regarding co-conspirators other than the ones listed, Express Scripts hoped to use these files to “show that all allegedly negative conduct was spurred by a legitimate, independent business justification – not a conspiracy.”

The plaintiffs refused to provide any files and accused Express Scripts of conducting a “fishing expedition” in hopes of finding that the plaintiff breached its contract with a partner. The court denied this motion, stating the defendants have the ability to prove “its actions were consistent with its contracts with the plaintiffs” without evaluating the plaintiffs’ contracts with other companies.

The district court also denied Express Scripts’ request that the plaintiffs show documents to prove if they “complied with the terms of their agreements with Express Scripts” as well as other pharmacies considered PBMs. The court said it would not require documentation of the plaintiffs’ agreements with third parties in order for Express to determine if the contract was breached.

The district court denied the defendant’s motion to compel regarding ECF. No. 138, in which Express Scripts requested the plaintiffs provide “pricing, profit margins, and other allegations data concerning disbursements of compound medication” to prove that Plaintiffs’ are victims of antitrust injuries. The plaintiffs refused to submit this documentation but offered to provide information and “sales data “that is more relevant to the injuries and damages it said it experienced. The district court determined this would be enough for the defendants, so it denied its claim and ordered the plaintiffs to provide the documents within 30 days.

The court granted, in part, Express Scripts' motion regarding a set deadline for the Plaintiffs. While the plaintiffs requested the court give it 60 days to complete and submit documentation, the defendant asked for a shorter deadline. The court ruled the plaintiffs should produce the documents within 30 days and ordered both parties to come to an agreement concerning search terms within five days.

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