Bailey v. Rite Aid Corporation

Filing 104

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 94 Joint Discovery Letter Brief. (fs, COURT STAFF) (Filed on 11/18/2020)

Case 4:18-cv-06926-YGR Document 104 Filed 11/18/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS BAILEY,
Plaintiff,

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Case No. 4:18-cv-06926-YGR
ORDER GRANTING IN PART AND DENYING
IN PART JOINT DISCOVERY LETTER BRIEF

v.
RITE AID CORPORATION,
Defendant.

Re: Dkt. Nos. 93, 94

United States District Court
Northern District of California

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Pending before this Court is a discovery dispute regarding communications between

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counsel for plaintiff Thomas Bailey and Valisure LLC. (Dkt. Nos. 93, 94.) Bailey contends that

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the communications are protected under FRCP 24(b)(4)(D)(ii) which provides:

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Expert Employed Only for Trial Preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known or
opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare
for trial and who is not expected to be called as a witness at trial.
But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the
same subject by other means.
Exceptional circumstances exist here. The strength of Bailey’s complaint was based on a
claim that its allegation were supported by an independent study. Thus, Bailey alleged:
10. Rite Aid has long known or should have known that traditional,
non-rapid release acetaminophen products can be equally effective
in the same, if not faster, time period than its Rite Aid rapid release
products.
11. In fact, a new study demonstrates that Rite Aid Acetaminophen
Rapid Release Gelcaps dissolve slower than the Rite Aid non-rapid
release products.5
[fn. 5] Kucera, Jessop, Alvarez, Gortler, Light, Rapid and FastRelease Acetaminophen Gelcaps Dissolve Slower Than

Case 4:18-cv-06926-YGR Document 104 Filed 11/18/20 Page 2 of 4

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United States District Court
Northern District of California

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Acetaminophen Tablets, Adv Inv Pha The Medic, 1:63-71 (Nov. 12,
2018)
accessible
at
http://www.kenkyugroup.org/article/8/173/Rapid-and-Fast-ReleaseAcetaminophen-Gelcaps-Dissolve-Slower-Than-AcetaminophenTablets (last accessed 11.15.2018).
***
THE SCIENCE BEHIND RAPID RELEASE PRODUCTS
DEMONSTRATES THE LABELING AND MARKETING OF
THE CLASS RAPID RELEASE GELCAPS ARE FALSE,
MISLEADING, UNFAIR, AND/OR DECEPTIVE
63. Despite what Rite Aid represents to the public about the Class
Rapid Release Gelcaps, they do not work faster than other, cheaper
Rite Aid acetaminophen products.
64. A 2018 study of the “rapid release” or “fast release” claims of
acetaminophen products, including Rite Aid Acetaminophen Rapid
Release Gelcaps, revealed that these products not only fail to work
faster, they actually work slower than their traditional
acetaminophen counterparts, such as tablets.39
65. Thus, the science demonstrates that Rite Aid’s representations
and advertising are false, misleading, deceptive, and unfair on their
face.
66. The level of deception and unfairness is elevated given that Rite
Aid has long known or should have known that there is scant or
conflicting evidence about the correlation of the speed and efficacy
of its acetaminophen products to its rapid release gelcap design.
67. Rite Aid knew or should have known of the existence of
“contradictory claims for rapid or fast-release [acetaminophen]
products.”40
[fn 39] Kucera, Jessop, Alvarez, Gortler, Light, supra n.5.
[fn 40] Id.
In ruling on the adequacy of Bailey’s complaint, the Court, as required, evaluated the
complaint in the light most favorable to the Bailey. Thus, it held:
Taken in the light most favorable to plaintiff, he has alleged that the
labeling of the Rite Aid RR Gelcaps plausibly confuse or mislead
the public. Plaintiff alleges that defendant sells Rite Aid RR Gelcaps
as an alternative to traditional acetaminophen caplets, which are sold
at a lower price and do not contain the “rapid release” language on
the label. (See generally FAC.) Additionally, plaintiff has alleged
that the Kucera study has demonstrated that defendant’s higher
priced Rite Aid RR Gelcaps dissolve at a slower rate than its lower
priced Rite Aid non-rapid release caplets and that the defendant
knew (or should have known) that the former is not any faster or
more effective than the latter. (FAC ¶ 64.) Moreover, plaintiff has
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Case 4:18-cv-06926-YGR Document 104 Filed 11/18/20 Page 3 of 4

provided the necessary details around the circumstances of the
alleged conduct required under Rule 9(b). See FAC ¶¶ 45-7; In re
iPhone 4S Consumer Litig., 637 F.App’x 414, 415 (9th Cir. 2016)
(applying Rule 9(b) to claims under California’s consumer
protection statutes as grounded in fraud).

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Defendant does not provide any support for its assertion that the
Kucera study on which plaintiff relies makes “it implausible that
[p]laintiff’s claims could entitle him to any relief.” . . . .

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[Plaintiff] uses a scientific study as evidence in support of his
allegation that the labeling of the Rite Aid RR Gelcaps misled
consumers.

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(Order Granting in Part and Denying in Part Motion to Dismiss, Dkt. No. 60, 10:11-11:7.) In that

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order, the Court found that defendant Rite Aid Corporation’s attempt to challenge the veracity of

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United States District Court
Northern District of California

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the claims in light of the study was premature. (Id. at fn. 7.)
The study was critical to Bailey’s allegations and accordingly discovery with respect

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thereto is necessary to test the specific allegations made in the complaint. The fact that the study

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may not have been independent, given the possible relationship between the authors of the study

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and Bailey’s counsel bears on its weight, veracity and credibility. Had Bailey not relied on the

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study to assert his claims, the result would likely have been different. That is not this case.

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Indeed, in similar circumstances, other courts have permitted discovery of documents and

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communications that are referenced and mentioned in the operative complaint. Se Zeiger v.

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WellPet LLC, No. 17-cv-04056-WHO, 2018 WL 10151156, at *2-3 (N.D. Cal. Apr. 10, 2018)

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(collecting cases); see also id. at *3 (“By injecting the lab results into the litigation in connection

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with a dispositive motion, they have affirmatively used these materials against [defendant] and

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cannot now claim the expert consulting privilege to shield these same materials from discovery.”).

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Such waiver of documents and materials is limited, however, to documents and communications

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relating to the Valisure study. See id. (“Plaintiffs have no obligation to disclose other testing or

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communications with or opinions by consulting experts beyond that specifically referenced in the

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[operative complaint].”).

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Accordingly, the Court GRANTS IN PART and DENIES IN PART the discovery letter brief
and ORDERS the production of the following documents:


Bailey-Valisure000001-000095
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Case 4:18-cv-06926-YGR Document 104 Filed 11/18/20 Page 4 of 4

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Bailey-Valisure000097-000101

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This Order terminates Docket Numbers 93 and 94.

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IT IS SO ORDERED.

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Dated: November 18, 2020

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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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United States District Court
Northern District of California

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