In re HIV Antitrust Litigation

Filing 1965

ORDER granting #1955 Defendants' Motion to Preclude re Dr. McGuire. Signed by Judge Edward M. Chen on 6/13/2023. (emclc2, COURT STAFF) (Filed on 6/13/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE HIV ANTITRUST LITIGATION.

Case No. 19-cv-02573-EMC

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ORDER GRANTING DEFENDANTS’
MOTION TO PRECLUDE RE DR.
MCGUIRE

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Docket No. 1955

United States District Court
Northern District of California

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This order memorializes the Court’s June 13, 2023, ruling on Defendants’ motion to

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preclude related to Dr. McGuire. The critical issue was whether Dr. McGuire should be permitted

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to testify about the “Expanded Version” of Table 3 (i.e., the third column), which addresses the

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scenario in which the jury finds a rational economic actor in the shoes of the brand and generic

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manufacturers would have divergent assessments of the likelihood of the generic winning the

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patent lawsuit. See Mot. at 4. Dr. McGuire’s reports had always assumed a single convergent

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percentage. The Court held that Dr. McGuire could not provide such testimony. Such testimony

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was based on a methodology that was not disclosed to Defendants in, e.g., Dr. McGuire’s opening

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report, his rebuttal report, or his deposition.

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Plaintiffs’ reliance on Attachment E.1 of the opening report, see Opp’n at 2, was

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unavailing. Although Attachment E.1 has a separate column for Gilead and a separate column for

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Teva, the columns contain the same percentages related to Teva’s chance of winning in the FTC

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patent infringement suit. In other words, Dr. McGuire did not separate out the perspective of

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Gilead/a brand manufacturer from the perspective of Teva/a generic manufacturer – which makes

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sense given that Dr. McGuire was relying on percentages provided from Plaintiffs’ expert Mr.

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Lentz, who never separated out the companies’ perspectives. Nor did he expressly opine as to

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how the negotiated date would play out in the event of such divergent assessments.

United States District Court
Northern District of California

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As to Dr. McGuire’s rebuttal report, he notably failed to respond to the direct criticism of

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the defense expert, Dr. Saravia, that a “flaw of using Dr. McGuire’s assumed probability based on

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a ‘rational, nonconspiring’ party, is that it requires that both parties have the same expectations

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regarding the probability of a generic manufacturer winning patent litigation.” Saravia Rpt. ¶ 124.

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That was Dr. McGuire’s opportunity to address this scenario; he failed to do so.

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Finally, the deposition testimony on which Plaintiffs relied did not support their position.

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Plaintiffs isolated Dr. McGuire’s testimony at page 74 but the broader context of the questioning

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(e.g., in page 73) demonstrated that Dr. McGuire was not testifying about differential perspectives

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of Gilead and Teva, but rather a sensitivity analysis using a single convergent assessment.

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Accordingly, the Court granted the motion to preclude.

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IT IS SO ORDERED.

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Dated: June 13, 2023

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______________________________________
EDWARD M. CHEN
United States District Judge

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