City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 1360

MEMORANDUM OPINION AND ORDER denying 1331 MOTION by AmerisourceBergen Drug Corporation, Cardinal Health, Inc., McKesson Corporation in Limine to Preclude Irrelevant Evidence of First Amendment Immunized Speech and Association Conduct. Signed by Senior Judge David A. Faber on 5/18/2021. (cc: counsel of record who have registered to receive an electronic NEF) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01362

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
CABELL COUNTY COMMISSION,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01665

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ Motion in Limine to
Preclude Irrelevant Evidence of First Amendment Immunized Speech
and Association Conduct.

See ECF No. 1331.

Specifically,

defendants seek to bar plaintiff from putting on evidence of “(1)
litigation filed by Cardinal Health, (2) amicus briefs filed by
HDA, (3) lobbying done by HDA, and (4) a publicity campaign
conducted by HDA in support of its lobbying efforts.”
1341 at 2.

ECF No.

According to them, under the Noerr-Pennington

doctrine, liability cannot be imposed based on First Amendment

activity and, therefore, evidence of such activity should be
excluded.

Defendants also argue that

evidence of defendants’

petitioning activity is not relevant to any other issue in the
case, it should be excluded under Federal Rule of Evidence 401.
“The Noerr-Pennington doctrine derives from the Petition
Clause of the First Amendment and provides that `those who
petition any department of the government for redress are
generally immune from statutory liability for their petitioning
conduct.’”

Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643-44

(9th Cir. 2009) (quoting Sosa v. DIRECTV, Inc., 437 F.3d 923, 929
(9th Cir. 2006)); see also North Carolina Elec. Membership Corp.
v. Carolina Power & Light, 666 F.2d 50, 52 (4th Cir.1981)
(stating the Noerr-Pennington doctrine “exempts from anti-trust
liability any petitioning activity designed to influence
legislative bodies or governmental agencies.”).

“This immunity

extends to persons who petition all types of government
agencies—legislatures, administrative agencies, and courts.”
Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 122 (3d Cir.
1999); see also Merck-Medco Managed Care, Inc. v. Rite Aid Corp.,
22 F. Supp.2d 447, 470 (D. Md. 1998) (“The Noerr-Pennington
doctrine protects joint efforts at lobbying all branches of
government, including administrative agencies and courts.”).
Furthermore, although the doctrine emerged in the antitrust
context, the Court has “held that Noerr-Pennington principles

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`apply with full force in other statutory contexts’ outside
antitrust.”

Kearney, 590 F.3d at 644 (quoting Sosa, 437 F.3d at

930).
Although the Noerr-Pennington doctrine has been extended
beyond the antitrust context, it has not been applied to bar
otherwise admissible evidence.

The Noerr-Pennington doctrine

does not operate in this manner.

As one court explained:

Secondarily, New GM’s Eighth Motion in Limine also
seeks to exclude evidence of its “lobbying” of NHTSA on
the theory that such conduct is “protected under the
First Amendment.” (New GM’s Eighth Mem. 10). More
specifically, New GM contends that such conduct is off
limits under the Noerr-Pennington doctrine, which
derives its name from two antitrust decisions, Eastern
Railroad Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127 (1961), and United Mine Workers of
America v. Pennington, 381 U.S. 657 (1965), but has
evolved to stand for the more general proposition that
“lobbying alone cannot form the basis of liability,”
Hamilton v. Accu-tek, 935 F. Supp. 1307, 1321 (E.D.N.Y.
1996). New GM’s argument, however, fails for the same
reason its Buckman argument failed: Under the NoerrPennington doctrine, a defendant may not be held liable
based solely on conduct that is protected by the First
Amendment, but that does not mean that such conduct is
altogether inadmissible or necessarily lacking in
evidentiary value. In fact the Pennington Court itself
acknowledged that “[i]t would of course still be within
the province of the trial judge to admit this evidence,
if he deemed it probative and not unduly prejudicial,
under the established judicial rule of evidence that
testimony of prior or subsequent transactions, which
for some reason are barred from forming the basis for a
suit, may nevertheless be introduced if it tends
reasonably to show the purpose and character of the
particular transactions under scrutiny.” Pennington,
381 U.S. at 670 n.3 (emphasis added) (internal
quotation marks omitted); see also Hamilton, 935 F.
Supp. at 1321 (“A core principle of the NoerrPennington doctrine is that lobbying alone cannot form

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the basis of liability, although such activity may have
some evidentiary value.” (emphasis added)).
At bottom, New GM’s Buckman and Noerr-Pennington
arguments (and its related arguments under Rule 403 of
the Federal Rules of Evidence) are premised on a
concern that a jury could base a finding of liability
on an inappropriate ground—either a ground that is
preempted by federal law or a ground that is protected
by the First Amendment. In the final analysis,
however, the proper remedy for those concerns is care
in instructing the jury with respect to what it must
find in order to hold New GM liable and, if New GM
requests it, perhaps also curative instructions making
clear to the jury on what it may not base its verdict.
See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 136
(2d Cir. 2008). The proper remedy is not exclusion of
evidence that is otherwise relevant and admissible in
connection with Plaintiff’s claims.
In re: General Motors LLC Ignition Switch Litig., 14-CV-8176, 14MD-2543 (JMF), 2015 WL 8130449, *2 (S.D.N.Y. Dec. 3, 2015); see
also North Carolina Elec. Membership Corp., 666 F.2d at 53
(acknowledging that evidence arguably covered by Noerr-Pennington
might nevertheless be admissible if relevant); Merck-Medco
Managed Care, Inc., 22 F. Supp.2d at 470 n.55 (“Unless the
evidence is unduly prejudicial to the defendants, activities
covered by the Noerr-Pennington doctrine are nevertheless
admissible to prove matters such as motive, opportunity, and
intent.”).
Plaintiffs and defendants are in agreement that NoerrPennington precludes the imposition of liability for engaging in
activity protected by the First Amendment.

They also agree that

the Noerr-Pennington doctrine does not compel the exclusion of

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First Amendment activity if otherwise admissible.
any agreement ends.

That is where

Defendants maintain the aforementioned First

Amendment activity is not relevant to any issue in this case
while plaintiffs argue otherwise.
Plaintiffs contend that the evidence is relevant to
defendants’ knowledge of their duties under the CSA and/or what
the DEA required.

According to plaintiffs, defendants have

contended that they had no duty and/or they did not know what
their duties were.

See ECF No. 1348 at 115.

Therefore,

plaintiffs contend that the evidence of lobbying, filing an
amicus brief, and other protected conduct shows that, contrary to
their assertions, defendants recognized what the law required
because they tried to change it.

From this, plaintiffs argue it

can be inferred that defendants’ alleged violations of the CSA
were intentional.

Judge Polster agreed and, in November,

concluded that with respect to the Pharmacy defendants in the
Track One-B cases, “intentional conduct is a way in which
Plaintiffs can prove public nuisance . . . [and] evidence of
their lobbying and petitioning activity in isolation may not be
relevant, but Plaintiffs may show that such activity goes to
issues that are relevant, such as knowledge of the DEA’s position
regarding SOMS.”

In re Nat'l Prescription Opiate Litig., No.

1:17-MD-2804, 2020 WL 6450290, at *20 (N.D. Ohio Nov. 3, 2020).
The court agrees with plaintiffs and Judge Polster that the

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evidence is relevant for these purposes.

Furthermore, the court

concludes that the probative value of this evidence is not
outweighed by any prejudice to defendants.
For all these reasons, the motion in limine is DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 18th day of May, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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