Corcoran et al v. CVS Health Corporation

Filing 551

PRETRIAL ORDER NO. 7 RE: OBJECTIONS TO OPENING DEMONSTRATIVES. Signed by Judge Yvonne Gonzalez Rogers on 6/4/2021. (ygrlc3, COURT STAFF) (Filed on 6/4/2021)

Case 4:15-cv-03504-YGR Document 551 Filed 06/04/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER CORCORAN, ET AL.,
Plaintiffs,

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CASE NO. 15-cv-03504-YGR
PRETRIAL ORDER NO. 7 RE: OBJECTIONS
TO OPENING DEMONSTRATIVES

vs.
CVS PHARMACY, INC.,
Defendant.

United States District Court
Northern District of California

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TO ALL PARTIES AND COUNSEL OF RECORD:

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Having considered the parties’ objections to demonstratives intended to be used during

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opening statements, the Court makes the following rulings:

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PLAINTIFFS’ OBJECTIONSi
Slide 16

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Slide 17
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Slide 18
CVS’S OBJECTIONSii
Slide 1
Slide 5

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Slide 11

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Slide 26

RULING
Overruled; evidence of the contracts is relevant as to
the jury’s evaluation of the defendant’s conduct.
Overruled; evidence of the contracts is relevant as to
the jury’s evaluation of the defendant’s conduct.
Overruled; evidence of the contracts is relevant as to
the jury’s evaluation of the defendant’s conduct.
RULING
Sustained.
Sustained in part. If there is no evidence of “spread
pricing,” the reference shall be deleted. Plaintiffs may
introduce evidence of the credibility of the PBMs
whether or not they are parties.
Overruled if the deposition testimony is designated
regardless of whether it will be played in plaintiff’s
case-in-chief. If not designated, sustained.
Overruled. The Court assumes the expert will testify to
the numbers and, if so, the expert can lay the
foundation for a table which can be marked and
admitted. If such testimony is not anticipated, then
sustained.

Case 4:15-cv-03504-YGR Document 551 Filed 06/04/21 Page 2 of 3

Slide 27

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Slide 28

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Slide 29
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Slide 30

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Slide 31

United States District Court
Northern District of California

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Slide 32
Slide 47

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Slide 49
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Slide 53

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Slide 54
Slide 60

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Slide 61

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Slide 62

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Overruled. The Court assumes the expert will testify to
the numbers and, if so, the expert can lay the
foundation for a table which can be marked and
admitted. If such testimony is not anticipated, then
sustained.
Overruled. The Court assumes the expert will testify to
the numbers and, if so, the expert can lay the
foundation for a table which can be marked and
admitted. If such testimony is not anticipated, then
sustained.
Overruled. The Court assumes the expert will testify to
the numbers and, if so, the expert can lay the
foundation for a table which can be marked and
admitted. If such testimony is not anticipated, then
sustained.
Sustained as to the “Admitted” stamp which is
argument.
Sustained as to the “Admitted” stamp which is
argument. Otherwise, overruled.
Overruled. The figure relates to impact primarily.
Sustained. This is argument, not a presentation of
anticipated evidence.
Sustained. This is argument, not a presentation of
anticipated evidence.
Sustained. This is argument, not a presentation of
anticipated evidence.
Overruled.
Sustained. Plaintiff can identify anticipated testimony
but not transcript testimony which is not designated.
Sustained. Plaintiff can identify anticipated testimony
but not transcript testimony which is not designated.
Sustained. Plaintiff can identify anticipated testimony
but not transcript testimony which is not designated.

IT IS SO ORDERED.
Dated: June 4, 2021

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______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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The parties exchanged opening slides today, and Plaintiffs have one overarching objection to three
of CVS’s slides (attached). The slides excerpt certain third party beneficiary disclaimers from the
CVS-PBM contracts. As the Court acknowledged at the hearing yesterday (June 2, 2021), being a

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Plaintiffs submit the following:

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Case 4:15-cv-03504-YGR Document 551 Filed 06/04/21 Page 3 of 3

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third party beneficiary is not a condition precedent for Plaintiffs’ consumer protection claims, and
thus, under Fed. R. Evid. 403, it is confusing and prejudicial to include them and the titles that
“Plaintiffs Are Not Third-Party Beneficiaries” in CVS’s opening slides.

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Email to Chambers dated June 3, 2021, from Plaintiffs’ Counsel.

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ii

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United States District Court
Northern District of California

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CVS submits the following:

CVS has the following objections to Plaintiffs’ opening demonstratives. Plaintiffs have not agreed to fix the
issues giving rise to these objections.
Slide 1 – The reference to CVS’s alleged revenues violates the Court’s rule bifurcating to Phase II evidence
concerning punitive damages. In addition, the 10-K SEC filing cited as the source of the revenue number is
not CVS Pharmacy, Inc.’s 10-K (the defendant), but the 10-K of a non-party (CVS Health Corporation).
Further, the $111,748,410,000 figure is not one we see in the CVS Health Corporation 10-K.
Slide 5 – The reference to spread pricing is inappropriate. It is inappropriate in light of the Court’s rule on
CVS MIL #3 prohibiting references or allusions to conspiracy, as well as unfairly prejudicial. The defendant
in this case is CVS, not a PBM. Moreover, Plaintiffs do not have evidence that the PBMs decision-making
was influenced by spread pricing.
Slides 11, 60, 61, 62 – Quoting these depositions is not appropriate. Plaintiffs are not calling Tom Gibbons
at trial. And Plaintiffs are not playing deposition testimony from Beth Wingate or Sue Colbert, who are
testifying live. The depositions are also hearsay.
Slide 26, 27, 28, and 29 – The tables excerpted from expert reports are hearsay. They cannot be shown to the
jury.
Slides 30 & 31 – Your titles to those slides misrepresent the statements CVS made in its answers. In
addition, your “Admitted” stamp is incomplete, as it omits CVS’s answer. We admitted some propositions
and deny another proposition.
Slide 32 – This slide violates the prohibition on punitive damages-related evidence being admissible only in
Phase II.
Slides 47 & 49 – The slides violate CVS MIL #3 prohibiting references or allusions to a CVS-PBM
conspiracy. It does so by displaying a hand shake. There is also no record support that the PBMs’ decisionmaking was motived by financial interests.
Slide 53 – The language “Never To Pay More” has no evidentiary foundation. It should be removed.
Slide 54 – The slide is an inaccurate and incomplete representation of the consumer protection laws
applicable in this case. It fails to acknowledge the differences in the various states’ laws, among other things.
Email to Chambers dated June 3, 2021, from CVS’s Counsel. In addition, CVS adds:
CVS also objects to Slide 31 as violating CVS MIL #5, which prohibits suggesting CVS had a duty to
disclose.
Follow-up Email to Chambers dated June 3, 2021, from CVS’s Counsel.

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