On Thursday, November 21, U.S. District Court Judge John J. Tharp, Jr. of the Northern District of Illinois Eastern Division addressed the admissibility of expert testimony crucial to the case and largely denied Defendant’s Daubert motions to exclude evidence, allowing Plaintiffs’ claims to proceed with substantial evidentiary support.
In his opinion, Judge Tharp applied the Daubert standard and Federal Rule of Evidence 702 to assess the admissibility of expert testimony. The key considerations were the reliability of the experts’ methodologies and their relevance to the issues in the case. The court upheld Plaintiff’s expert Dr. Daniel Spulber’s benchmark analysis using a “perfectly contestable or competitive market” as a valid methodology to calculate a but-for price based on Surescripts’ average economic costs. His use of contract data to estimate real-world prices paid by pharmacies was also deemed sufficiently reliable.
The court’s decision also addressed Plaintiff’s industry expert Michele Davidson’s qualifications, methodologies, and the relevance of her opinions to the case, finding her testimony largely aligned with the rigorous Daubert analysis applied to Dr. Spulber’s testimony.
The lawsuit, spearheaded by WBE and co-counsel on behalf of thousands of pharmacies across the U.S., centers on Surescripts’ alleged anticompetitive tactics. These include loyalty contracts that penalized multihoming (using multiple networks), exclusivity agreements with key players, and pricing strategies that effectively locked out competitors.
As the case moves toward trial, WBE remains steadfast in its mission to restore competition to the e-prescription market and secure justice for the pharmacies we represent.
For more information on this case, In Re Surescripts Antitrust Litigation, No. 19-cv-06627 (N.D. Ill.), please visit our website.