In re: Nexium Antitrust v.

2016 | Cited 0 times | First Circuit | November 21, 2016

United States Court of Appeals For the First Circuit

Nos. 15-2005, 15-2006, 15-2007



Plaintiffs, Appellants,



Defendants, Appellees.


[Hon. William G. Young, U.S. District Judge]


Lynch, Stahl, and Thompson, Circuit Judges.

Thomas M. Sobol, with whom David S. Nalven, Kristen A. Johnson, James J. Nicklaus, Kristie A. LaSalle, Hagens Berman Sobol Shapiro LLP, Bruce E. Gerstein, Joseph Opper, Elena K. Chan, Ephraim R. Gerstein, Garwin Gerstein & Fisher, LLP, David F. Sorensen, Ellen Noteware, Daniel C. Simons, Caitlin G. Coslett, Berger & Montague, P.C., Linda P. Nussbaum, Nussbaum Law Group, P.C., Steve D. Shadowen, Hilliard & Shadowen LLP, Kenneth A. Wexler, Bethany R. Turke, Justin N. Boley, Wexler Wallace LLP, J. Douglas Richards, Sharon K. Robertson, Donna M. Evans, Cohen Milstein Sellers & Toll, PLLC, Jayne A. Goldstein, Pomerantz LLP, Matthew Wessler, and Gupta Wessler PLLC were on brief, for direct purchaser and end-payor class appellants. Barry L. Refsin, Monica L. Rebuck, Maureen S. Lawrence, Hangley Aronchick Segal Pudlin & Schiller, Bernard D. Marcus, Moira Cain-Mannix, Marcus & Shapira LLP, Richard A. Arnold, Scott E. Perwin, Lauren C. Ravkind, Anna T. Neill, and Kenny Nachwalter, P.A. on brief for individual retailer appellants. Kannon K. Shanmugam, with whom Dane H. Butswinkas, Paul B. Gaffney, John E. Schmidtlein, and Williams & Connolly LLP were on brief, for appellees AstraZeneca LP, AstraZeneca AB, and Aktiebolaget Hassle. Jay P. Lefkowitz, P.C., with whom Steven J. Menashi, Amanda Elbogen, Jonathan D. Janow, Kirkland & Ellis LLP, James Douglas Baldridge, Lisa Jose Fales, Danielle R. Foley, Vincent E. Verrocchio, and Venable LLP were on brief, for appellees Ranbaxy Inc., Ranbaxy Pharmaceuticals Inc., and Ranbaxy Laboratories Ltd. Mark S. Hegedus, Attorney, Office of the General Counsel, Federal Trade Commission, Deborah L. Feinstein, Director, Markus H. Meier, Acting Deputy Director, Bradley S. Albert, Deputy Assistant Director, Elizabeth R. Hilder, Attorney, Bureau of Competition, Daniel W. Butrymowicz, Attorney, Bureau of Competition, Jonathan E. Nuechterlein, General Counsel, and Joel Marcus, Director of Litigation, on brief for Federal Trade Commission, amicus curiae.

November 21, 2016

LYNCH, Circuit Judge. This appeal arises from the first

pharmaceutical-settlement antitrust action tried before a jury

since the Supreme Court's decision in FTC v. Actavis, Inc., 133 S.

Ct. 2223 (2013). The jury found that although the plaintiffs had

proved an antitrust violation in the form of a large and

unjustified reverse payment from AstraZeneca to Ranbaxy, the

plaintiffs had not shown that they had suffered an antitrust injury

that entitled them to damages.

Defendant AstraZeneca is a brand-name drug manufacturer

that owns the patents covering Nexium, a prescription heartburn

medication that has grossed billions of dollars in annual sales.

After defendant Ranbaxy notified the Food and Drug Administration

("FDA") that it sought to market a generic version of Nexium,

AstraZeneca sued Ranbaxy for patent infringement. The two

companies reached a settlement agreement, under which Ranbaxy

agreed to delay the launch of its generic until a certain date in

return for various promises from AstraZeneca. AstraZeneca

similarly sued and subsequently settled two patent infringement

suits with generic manufacturers Teva and Dr. Reddy's, who were

(but no longer remain) defendants in this case. The plaintiffs

-- various pharmaceutical retail outlets and certified classes of

direct purchasers and end payors -- brought suit, arguing that the

terms of these settlement agreements violated federal antitrust

laws and state analogues.

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After summary judgment proceedings that winnowed down

the number of causal mechanisms through which the plaintiffs could

attempt to prove antitrust violation and injury, the case proceeded

to a jury, which found as we have described. Following the

verdict, the district court denied the plaintiffs' motions for a

permanent injunction and for a new trial.

The plaintiffs appeal, raising four categories of

claims. First, they challenge various evidentiary rulings.

Second, they argue that the district court erroneously granted

judgment as a matter of law in the defendants' favor on the issue

of overarching conspiracy. Third, they argue that the special

verdict form and jury instructions contained reversible error.

The final argument, which lies at the heart of this appeal, is

that the district court, at summary judgment, impermissibly cut

down the number of causal mechanisms through which the plaintiffs

could make their case to the jury. See In re Nexium (Esomeprazole)

Antitrust Litig. ("In re Nexium [Summary Judgment]"), 42 F. Supp.

3d 231 (D. Mass. 2014). This error at summary judgment pervaded

the entire trial, the plaintiffs argue, and constitutes grounds to

vacate the jury verdict and award a new trial.

We find no reversible error in the district court's

evidentiary rulings, the formulation of the special verdict form

and jury instructions, or its judgment as a matter of law on

overarching conspiracy. In fact, many of the plaintiffs'

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objections have been forfeited or mooted by the jury's findings.

We further hold that the jury verdict, finding an antitrust

violation but not an antitrust injury, coupled with developments

at trial on the issue of patent invalidity, renders harmless any

error that may have occurred during the summary judgment

proceedings. Accordingly, we need not, and indeed should not,

review the summary judgment order for error. We affirm.


An overview of the intricate pharmaceutical regulatory

framework is necessary to understand the issues presented. A

manufacturer that seeks to market a new brand-name drug must file

a New Drug Application ("NDA") with the FDA and "undergo a long,

comprehensive, and costly testing process." Actavis, 133 S. Ct.

at 2228. Generic-drug manufacturers formerly underwent similarly

rigorous processes to obtain FDA approval to market generic

versions of the brand-name drug. In order to accelerate the entry

of generic competitors into the market and decrease healthcare

costs, Congress enacted the Drug Price Competition and Patent Term

Restoration Act of 1984 ("Hatch-Waxman Act"), Pub. L. No. 98-417,

98 Stat. 1585. The Hatch-Waxman Act has three regulatory

components that are relevant here.

First, the Act permits generic manufacturers to file the

notably less costly Abbreviated New Drug Application ("ANDA"),

"specifying that the generic has the 'same active ingredients as,'

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and is 'biologically equivalent' to, the already-approved brand-

name drug." Actavis, 133 S. Ct. at 2228 (quoting Caraco Pharm.

Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670 , 1676 (2012)).

"[B]y allowing the generic to piggy-back on the pioneer's approval

efforts, [the Hatch-Waxman Act] 'speed[s] the introduction of low-

cost generic drugs to market,' thereby furthering drug

competition." Id. (third alteration in original) (quoting Caraco,

132 S. Ct. at 1676).

Second, the Act requires brand-name manufacturers to

list the numbers and expiration dates of all relevant patents in

their NDAs, which are then published in the FDA's "Orange Book,"

an annual publication of all approved drugs and the reported

patents or statutory exclusivities that cover those drugs. In

turn, generic manufacturers filing ANDAs must "'assure the FDA'

that the generic 'will not infringe' the brand-name's patents,"

and may provide this assurance in one of four ways. Id. (quoting

Caraco, 132 S. Ct. at 1676). The generic manufacturer may

(1) certify that the brand-name manufacturer has failed to list

any relevant patents; (2) certify that any relevant patents have

expired; (3) request the FDA's approval to market its generic upon

the expiration of any still active patents covering the brand name;

or (4) certify that "any listed, relevant patent 'is invalid or

will not be infringed by the manufacture, use, or sale' of the

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drug described in the [ANDA]." Id. (quoting 21 U.S.C.

§ 355(j)(2)(A)(vii)(IV)).

This last route, known as a "paragraph IV

certification," usually triggers an immediate patent infringement

suit from the brand-name manufacturer. If that suit is brought

within 45 days of the paragraph IV certification, the FDA must

withhold approval of the generic ANDA, usually for a 30-month

period, during the course of litigation on patent validity or

infringement. Id. If the court decides the patent matter within

30 months, the FDA follows the court's determination. But if the

court does not, the FDA may approve an ANDA before a court rules

on patent validity or infringement. Id. (citing 21 U.S.C.

§ 355(j)(5)(B)(iii)). This pre-ruling approval, in turn, allows

the generic manufacturer to launch its product "at risk" -- that

is, "with the risk of losing the infringement case against it

hanging over its head. Losing an infringement case after launching

at risk can result in significant liability for the generic

manufacturer, as damages typically are calibrated by the amount of

its at-risk sales." In re Nexium [Summary Judgment], 42 F. Supp.

3d at 245.

The final relevant component of the Hatch-Waxman Act is

that it rewards the first generic manufacturer to file an ANDA

with a paragraph IV certification by granting that first filer a

180-day period of exclusivity. Actavis, 133 S. Ct. at 2228–29.

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During that 180-day window, the FDA cannot approve ANDAs from

competing manufacturers for the same generic, leaving only the

first filer with the ability to market its generic. Accordingly,

this period of exclusivity can be "worth several hundred million

dollars." Id. at 2229 (quoting Hemphill, Paying for Delay:

Pharmaceutical Patent Settlement as a Regulatory Design Problem,

81 N.Y.U. L. Rev. 1553, 1579 (2006)). In fact, the "vast majority

of potential profits for a generic drug manufacturer materialize

during the 180-day exclusivity period." Id. From the market

perspective, however, the first filer may create a bottleneck, as

all other generic manufacturers must wait for the exclusivity

period to end before launching their own generics.

Significantly, this lucrative 180-day exclusivity period

is not absolute. Under the Medicare Prescription Drug,

Improvement, and Modernization Act of 2003, Pub. L. No. 108-173,

117 Stat. 2066, a first filer may forfeit its exclusivity period

if it fails to come to market within 75 days of a final,

nonappealable court judgment that the first filer's product does

not infringe the brand-name's patents. 21 U.S.C.

§§ 355(j)(5)(D)(i)(I)(bb), (D)(ii). Alternatively, first-filer

exclusivity can be forfeited if another generic manufacturer

successfully challenges the brand-name patents at issue and if the

first filer fails to market its generic within 75 days of a final,

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nonappealable judgment in that other manufacturer's suit. Id.;

see also In re Nexium [Summary Judgment], 42 F. Supp. 3d at 246.

In 2013, the Supreme Court held that reverse payment

settlements in paragraph IV litigation "can sometimes violate the

antitrust laws." Actavis, 133 S. Ct. at 2227. A reverse payment

refers to an arrangement in which the brand-name manufacturer and

patent holder compensates the generic manufacturer and alleged

patent infringer to settle the paragraph IV litigation and delay

the generic's market entry. Id. at 2229. When a brand-name

manufacturer pays to delay the first filer's generic launch, that

reverse payment postpones not only the first filer's product but

also those of all other generic manufacturers, who must wait out

the 180-day exclusivity period before going to market. Given that

"a reverse payment, where large and unjustified, can bring with it

th[is] risk of significant anticompetitive effects," the Supreme

Court held that the potential anticompetitive effects of a reverse

payment are subject to the antitrust "rule of reason" test. Id.

at 2237.

Earlier this year, in In re Loestrin 24 Fe Antitrust

Litigation, 814 F.3d 538 (1st Cir. 2016), this circuit ruled that

improper reverse payments may take the form of "non-monetary"

advantages. Id. at 549. The language and logic of Actavis

dictated that outcome. See id. ("[T]he Supreme Court recognized

that a disguised above-market deal, in which a brand manufacturer

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effectively overpays a generic manufacturer for services rendered,

may qualify as a reverse payment subject to antitrust scrutiny and

militates against limiting the Supreme Court's decision to pure

cash payments."). Under this functional approach, "no-AG"

provisions -- in which the brand-name manufacturer agrees not to

market an "authorized generic" version of the drug for a certain

period of time -- and other settlement provisions in which some

advantage is transferred from the patent holder to the alleged

infringer may constitute a reverse payment subject to antitrust



Nexium is a proton-pump inhibitor whose active

ingredient is esomeprazole magnesium. The FDA approved

AstraZeneca's NDA to market Nexium in 2001. Between 2008 and 2014,

Nexium grossed at least $3 billion annually in U.S. sales and

joined the ranks of "blockbuster" drugs -- those that generate

annual sales of at least $1 billion. In 2001, AstraZeneca held

fourteen active patents covering Nexium. As relevant here, two

medical patents expired on May 27, 2014, two other patents expired

in February 2015 and July 2015, and two more are set to expire in

May 2018.

In August 2005, Ranbaxy first filed an ANDA with a

paragraph IV certification in order to market a generic version of

Nexium. The filing stated that Ranbaxy's launch would await the

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2007 expiration of some of AstraZeneca's Nexium patents, but

certified that other patents were either not infringed or invalid.

As to patent invalidity, Ranbaxy contended that there was "nothing

new" about Nexium, as the active compound in Nexium was effectively

"one-half" of the compound in Prilosec, another blockbuster drug

for stomach-acid treatment that AstraZeneca had marketed prior to


AstraZeneca promptly brought suit, alleging that Ranbaxy

had violated six of its patents: two that would expire on May 27,

2014, two that would expire in 2015, and two that would expire in

May 2018. The suit stayed FDA approval of Ranbaxy's ANDA until

April 2008. Meanwhile, Teva filed its ANDA for generic Nexium in

November 2005, and Dr. Reddy's filed in December 2007. AstraZeneca

sued Teva and Dr. Reddy's as well, and all three patent

infringement suits were consolidated in the U.S. District Court

for the District of New Jersey.

A. Settlement Agreements

Ranbaxy was the first defendant to settle after reaching

an agreement with AstraZeneca in April 2008. Under the settlement

agreement, Ranbaxy received a license to all relevant Nexium

patents starting on May 27, 2014. The settlement also contained

a no-AG clause, under which AstraZeneca agreed not to market an

authorized generic version of Nexium during Ranbaxy's 180-day

period of exclusivity. The clause thus ensured that Ranbaxy's

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generic would be the only one on the market if it could launch in

time to avoid triggering the statutory forfeiture provisions.

AstraZeneca could still continue to market its brand-name drug

during that period. In return, Ranbaxy stipulated to patent

validity and infringement and consented to the entry of an

injunction against the sale of its generic before the license took

effect on May 27, 2014.

AstraZeneca and Ranbaxy also executed three other

agreements, under which Ranbaxy would serve as AstraZeneca's

subcontractor and manufacture certain quantities of branded

Nexium, and would also serve as AstraZeneca's distributor for

authorized generic versions of two other AstraZeneca drugs,

Prilosec and Plendil. For the distribution agreement, Ranbaxy

would receive 20% of AstraZeneca's profits.

After litigating for a few more years, Teva settled with

AstraZeneca in January 2010. Like Ranbaxy, Teva received a license

to the Nexium patents starting on May 27, 2014 and also consented

to an injunction barring the sale of its generic before that

license took effect. Simultaneously, AstraZeneca and Teva agreed

to settle another pending patent infringement lawsuit regarding

Prilosec. In that multiyear litigation, AstraZeneca had succeeded

in establishing Teva's liability, but Teva had been contesting the

damages amount based on its past infringing sales. Teva paid

AstraZeneca $9 million to resolve that suit.

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Dr. Reddy's settled with AstraZeneca in January 2011.

Like Ranbaxy and Teva, Dr. Reddy's received a license for the

Nexium patents starting on May 27, 2014 and also consented to an

injunction barring sales before that date. Simultaneously,

AstraZeneca and Dr. Reddy's settled another pending patent

infringement lawsuit in which AstraZeneca agreed to drop its appeal

of the entry of summary judgment in Dr. Reddy's favor.

The three settlement agreements contained parallel

contingent launch provisions under which each generic manufacturer

agreed to delay launching its generic in the United States until

(1) May 27, 2014; (2) a hypothetical date prior to May 27, 2014 on

which any third party launched generic Nexium pursuant to a final,

nonappealable court order that AstraZeneca's Nexium patents were

invalid, unenforceable, or not infringed by the generic; or (3) a

hypothetical date prior to May 27, 2014 on which AstraZeneca

authorized any third party to manufacture a generic Nexium. In re

Nexium [Summary Judgment], 42 F. Supp. 3d at 249 (citing ¶ 5.2 in

the three settlement agreements).

B. Ranbaxy's Regulatory Troubles

Throughout Ranbaxy's paragraph IV litigation challenging

AstraZeneca's Nexium patents, Ranbaxy faced serious issues with

the FDA. Specifically, Ranbaxy had filed its ANDA for generic

Nexium out of its manufacturing facility in Paonta Sahib, India,

which meant that any FDA approval to launch generic Nexium would

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extend only to that facility. In February 2009, after issuing

several warnings about quality control problems with the India

facility, the FDA ultimately invoked its Application Integrity

Policy ("AIP") against Paonta Sahib. The AIP "halted FDA's

substantive review and approval of all pending ANDAs, including

amendments and post-approval supplements that relied on supporting

data from the Paonta Sahib site -- including the generic Nexium

ANDA." Id. at 266. The agency then rejected Ranbaxy's proposed

Corrective Action Operating Plan and further turned down Ranbaxy's

request that it grant a public health exception to the AIP and

continue the approval process for the generic Nexium ANDA.

Meanwhile, the FDA granted a public health exception for generic

Lipitor, another Ranbaxy product manufactured out of the Paonta

Sahib facility.

In 2010, Ranbaxy and the FDA began negotiating a Consent

Decree, which they finalized on January 25, 2012. Under its terms,

Ranbaxy could meet "several onerous and time-consuming milestones"

to obtain potential FDA approval for generic Nexium or to obtain

a site-transfer amendment to change the manufacturing site for the

drug. The Consent Decree also contained a "key relinquishment

date" of September 30, 2014. Id. at 274. If Ranbaxy could not

meet the requisite milestones before that date, it would forfeit

its 180-day exclusivity period. Id. Ranbaxy took over two and a

half years to prepare a site-transfer amendment, and the

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manufacturer failed to receive final FDA approval for its generic

Nexium ANDA prior to May 27, 2014.

On November 4, 2014, the FDA rescinded its tentative

approval of Ranbaxy's generic Nexium ANDA, and Ranbaxy promptly

sued the FDA in the U.S. District Court for the District of

Columbia. See Ranbaxy Labs, Ltd. v. Burwell, 82 F. Supp. 3d 159 ,

163 (D.D.C. 2015). Subsequently, in January 2015, the FDA notified

Ranbaxy that it had forfeited its first-filer exclusivity period

by failing to obtain approval for its generic within 30 months of

submitting its ANDA. The FDA simultaneously approved Teva's ANDA

for generic Nexium, which launched on February 17, 2015.

C. Dispute over Teva's Readiness to Launch Generic Nexium

The plaintiffs' evidence at summary judgment and at

trial showed that Teva was closer than Ranbaxy to obtaining FDA

approval and launching generic Nexium before May 27, 2014. An

internal Teva email from February 2007 approximated Teva's "Launch

Readiness date" as July 2008. And by 2009, Teva had passed FDA

review in two out of the three categories necessary for tentative

approval of its generic Nexium.

The parties vehemently disagreed at summary judgment on

whether the third remaining category for FDA approval was "a

significant hurdle or a minor one," an issue material to determine

whether Teva was indeed close to FDA approval. In re Nexium

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[Summary Judgment], 42 F. Supp. 3d at 288–89. The jury heard

evidence from both sides on this issue.


A. Pretrial Proceedings

Plaintiffs commenced six different actions in three

different federal district courts, alleging that AstraZeneca made

improper reverse payments to Ranbaxy, Teva, and Dr. Reddy's in

order to delay the market entry of generic Nexium. On December 7,

2012, the U.S. Judicial Panel on Multidistrict Litigation

consolidated and assigned the six pending actions to the U.S.

District Court for the District of Massachusetts. See 28 U.S.C.

§ 1407. This appeal arises from that consolidated case.

On appeal, plaintiffs are a class of wholesale drug

distributors (the "Direct Purchasers"); a class of individual

consumers, third-party payors, union plan sponsors, and certain

insurance companies (the "End Payors"); and numerous

pharmaceutical retail outlets.1 In January 2015, a panel of this

circuit affirmed the certification of the End Payors damages class

over a dissent. See In re Nexium Antitrust Litig., 777 F.3d 9

(1st Cir. 2015). The original defendants in this litigation were

1 The pharmaceutical retail outlets are CVS, Inc.; Eckerd Corporation; Giant Eagle, Inc.; HEB Grocery Co. LP; JCG (PJC) USA, LLC; the Kroger Company; Maxi Drug, Inc. d/b/a Brooks Pharmacy; Rite Aid Corporation; Rite Aid Headquarters Corporation; Safeway Incorporated; Supervalu, Inc.; and Walgreen Co.

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AstraZeneca, Ranbaxy, Teva, and Dr. Reddy's. Teva and Dr. Reddy's

have settled, leaving only AstraZeneca and Ranbaxy as defendants

on appeal.

Consistent with In re Loestrin 24 Fe, the plaintiffs'

complaints identified aspects of AstraZeneca's settlements with

each of the three generic manufacturers that allegedly were reverse

payments in violation of the antitrust laws. In the Ranbaxy

settlement, the plaintiffs pointed to the no-AG clause, as well as

the side manufacturing and distribution agreements. In the Teva

settlement, the plaintiffs argued that Teva's payment of only $9

million to settle the Prilosec lawsuit, rather than the higher

amount that Teva actually owed AstraZeneca, constituted the

reverse payment. In the Dr. Reddy's settlement, the plaintiffs

cited AstraZeneca's agreement to drop its appeal challenging Dr.

Reddy's summary judgment win in another patent infringement


In December 2013, the defendants collectively filed

eleven motions for summary judgment. Following the court's initial

rulings from the bench, both parties filed various motions for

reconsideration. In a September 4, 2014 opinion, the district

court memorialized its rationale as to each summary judgment motion

that it decided. See In re Nexium [Summary Judgment], 42 F. Supp.

3d 231. This opinion grouped the motions into five categories:

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First, the district court denied the defendants' motions

for partial summary judgment on the existence of an overarching

antitrust conspiracy, among all four original defendants, to

restrain trade in the market for generic Nexium. Id. at 248–60.

At the pretrial stage, the court found that the plaintiffs had

"met their burden of establishing a reasonable inference of

overarching conspiracy," id. at 249, as the evidence demonstrated

that each generic "manufacturer's calculus [on its entry date into

the generic Nexium market] changed . . . when it received assurance

that it would only have to restrict its business if its competitors

did the same," id. at 258. The denial of summary judgment to the

defendants imposed no restrictions on the plaintiffs' ability to

produce evidence at trial. Following the plaintiffs' case in

chief, the district court granted judgment as a matter of law in

the defendants' favor on this overarching conspiracy claim.

Second, although the district court denied the

defendants' motion for summary judgment as to the existence of an

improper reverse payment from AstraZeneca to Ranbaxy, the court

granted the motion as to the argument that such a reverse payment

caused the plaintiffs' injury. Id. at 260. The court elaborated

that the no-AG clause in the AstraZeneca–Ranbaxy settlement

agreement "may be considered part of an illegal reverse payment,"

id. at 265, while the lucrative "side" agreements granting Ranbaxy

supply and distribution contracts likewise "raise[] enough

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suspicions to support a reasonable inference [of] improper reverse

payments to induce Ranbaxy to delay its generic launch," id. at


Nonetheless, in light of the quality control issues that

Ranbaxy's Paonta Sahib facility had experienced, the court found

that the plaintiffs did not show how Ranbaxy could still have

obtained final FDA approval and launched its generic before May

27, 2014. Id. at 270-75. The court was skeptical of the

plaintiffs' analogy to generic Lipitor, which had been

manufactured out of Paonta Sahib and had faced similar regulatory

issues but had nonetheless launched after Ranbaxy reached a

compromise with the FDA. Id. at 273-74.

"The net effect of these rulings [wa]s that the Ranbaxy

Settlement [could] not [be] a basis for imposing antitrust

liability." Id. at 279. However, later at trial, the court

acknowledged its error as to this ruling and reversed course.

Third, the court denied the defendants' motions for

summary judgment based on the Teva settlement. The court found

that the plaintiffs' evidence -- that Teva's $9 million payment to

AstraZeneca to settle the Prilosec lawsuit was so low a sum that

it "constituted a significant forgiveness of debt" by AstraZeneca

to delay the launch of Teva's generic -- was sufficient to proceed

to trial. Id. at 286. The court next found that the plaintiffs

had also met their burden as to, what it called, antitrust

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causation because they showed (1) that Teva was close to obtaining

tentative FDA approval but slowed down its efforts toward that

goal after settling with AstraZeneca, and (2) that Teva could have

entered the market before May 2014, notwithstanding Ranbaxy's

first-filer exclusivity period, by partnering with Ranbaxy on a

joint launch. Id. at 288–89.2 In sum, the plaintiffs could pursue

the Teva settlement as a basis for antitrust liability at trial.

Fourth, the district court granted the defendants'

motion for summary judgment based on the Dr. Reddy's settlement,

finding that the plaintiffs had proffered insufficient evidence

both on the existence of an improper reverse payment and on

"antitrust causation." Id. at 291–95.

Finally, the district court denied three miscellaneous

motions for summary judgment that AstraZeneca had filed: (1) a

motion against the Direct Purchaser and Individual Retailer

plaintiffs for lack of actual injury and seeking exclusion of

testimony from two experts; (2) a motion barring assigned claims;

and (3) a motion on the basis of the statute of limitations. Id.

at 295–300.

2 The court rejected as too speculative another causal mechanism -- namely, that Teva could have won its paragraph IV suit and obtained a final, nonappealable judgment that AstraZeneca's Nexium patents were invalid or not infringed. That theoretical victory could, in turn, have triggered the regulatory 75-day window within which Ranbaxy had to launch its generic or forfeit its first-filer exclusivity. Id. at 289–90.

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In sum, after the summary judgment proceedings, the

plaintiffs were allowed to present evidence on AstraZeneca's

improper reverse payment to Teva and any antitrust liability

flowing from that payment, as well as the existence of an

overarching antitrust conspiracy among AstraZeneca, Ranbaxy, Teva,

and Dr. Reddy's. That evidence would include testimony from the

plaintiffs' expert, Dr. Thomas McGuire. The court further directed

the plaintiffs to present all evidence supporting an antitrust

violation arising out of the Teva settlement first, before

presenting any other evidence.

After summary judgment, at a January 21, 2014 pretrial

motion hearing, the district court granted the defendants' motion

in limine to exclude testimony from Shashank Upadhye, a former in-

house lawyer at a nondefendant generic manufacturer. The

plaintiffs sought Upadhye's testimony to "augment Dr. McGuire's

economic testimony with a real world business perspective on

settlement negotiations for drug patent lawsuits." The court

reasoned that Upadhye, along with another proposed expert witness

(John Thomas), could not testify because they were "lawyers, not

economists, and . . . they d[id] not have the requisite

qualifications to testify." At an October 15, 2014 charge

conference, the court reminded both parties that its decisions

regarding motions in limine were "not rulings" and that the parties

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"must make [their] objections known during the course of the


Dr. Reddy's settled and dropped out of the lawsuit

shortly before trial.

B. Trial

A six-week trial commenced on October 20, 2014. The

trial transcript, exhibits, and filings comprise thousands of

pages in the record. We summarize only the aspects of trial that

are relevant to the arguments on appeal.

1. Plaintiffs' Statement on Patent Invalidity and Evidence Introduced During Their Case in Chief

At a conference on the second day of trial, the

plaintiffs described their case in chief to the district court:

[In order to show that Teva could have gotten to market before May 27, 2014, the district court said that the plaintiffs] would need to prove that Teva would have won its litigation [against AstraZeneca]. And then . . . [the court] also indicated though that we could also perhaps prove that Teva would have done a deal with Ranbaxy in order to have the 180 days lifted. . . . We plan to do the latter, primarily in our case in chief . . . . We don't plan on proving a patent case inside of an antitrust case [by pursuing the former]. . . . [W]e do not plan to be proving that Teva would have won the litigation.

This choice by the plaintiffs was not mandated by the district

court's ruling. At trial, consistent with the district court's

order, the plaintiffs first presented evidence on the existence of

a reverse payment from AstraZeneca to Teva.

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Dr. McGuire, an economist and one of the plaintiffs' key

expert witnesses, testified twice during the plaintiffs' case in

chief. McGuire first testified to "the enormous financial stakes

that turned on the entry date of a lower cost generic into a market

hitherto dominated by a patented, more expensive brand name drug."

In re Nexium (Esomeprazole) Antitrust Litig. ("In re Nexium [Post-

Trial Opinion]"), 309 F.R.D. 107 , 119 (D. Mass. 2015). He further

"detailed how the benefits AstraZeneca conferred on Teva through

their mutual settlement exceeded the litigation costs the parties

thereby avoided." Id.

During McGuire's second testimony, despite the summary

judgment order precluding the plaintiffs from introducing evidence

of a reverse payment to Ranbaxy, the court allowed McGuire to

testify "for context" on the "far greater reverse payment made by

AstraZeneca to Ranbaxy to induce it to forego its challenge to

AstraZeneca's Nexium patents." Id. The district court also

allowed McGuire to testify about Ranbaxy's economic incentives to

include a contingent launch provision in its settlement agreement

with AstraZeneca. Specifically, McGuire noted that the provision

made it "less likely" that subsequent ANDA filers would pursue

generic entry. He further stated that the clause "had the effect

of reducing the likelihood that Teva would challenge and break the

bottleneck, which means for Ranbaxy[,] it became more likely that

- 23 -

[it was] able to use [its] 180-day exclusivity period and make the

profits associated with that."

At one point during McGuire's second testimony, the

court forbade him from quantifying Ranbaxy's incentive to

participate in the overarching conspiracy as "about $700 million

in [Ranbaxy's] pocket that [it] otherwise wouldn't have." It ruled

as such because the existence of contingent launch provisions, and

not that theory, was what kept the plaintiffs' "case against

Ranbaxy alive." The court nonetheless allowed McGuire to testify

that AstraZeneca netted "hundreds of millions of dollars" by

settling with Ranbaxy to "strengthen the 180-day [first-filer]


Plaintiffs were permitted to introduce expert testimony

on the but-for entry dates. For three days, starting on November

18 and after the district court articulated its "misconception,"

the plaintiffs presented the testimony of Dr. Cheryl Blume, their

"lead witness on the issue of the crucial 'but for entry date.'"

Id. at 120. Looking back at trial, the district court noted that

"Blume did not fare very well, especially under the searching

cross-examination by Teva's counsel. The Court was left with the

distinct impression that much of her testimony was a priori

rationalization." Id.

- 24 -

2. The District Court's Mid-Trial Shift, Defendants' Mistrial Motion, and the Exclusion of McGuire's Event Study and Other Testimony

On November 18, 2014, the seventeenth day of the trial,

the court admitted that it had had a "fairly fundamental

misconception" of the plaintiffs' theory of the case. The court

then adjusted its thinking about the relevance of the AstraZeneca–

Ranbaxy settlement by noting that "[t]he large and unjustified

payment to Ranbaxy, which keeps Ranbaxy, given its blocking

position [as first filer], off the market until May 27th, 2014,

has an effect on all the later ANDA filers, such that if it were

to be proved that but for that agreement, . . . Teva could have

partnered with Ranbaxy and come to market prior to that date."

In light of this shift, the district court announced

that it would alter the jury verdict form and allow the plaintiffs

to recall McGuire to testify for a third time. The court also

emphasized that its shift in thinking did "not injure[]" the

plaintiffs because "they seem to have in the record enough evidence

of a large and unjustified payment to Ranbaxy and based upon their

expert's testimony it can be argued that it was anticompetitive."

In response to the district court's stated reversal of

its position, the defendants filed two motions, to both of which

the plaintiffs objected. The first motion was for a mistrial.

The second was to exclude McGuire's additional proffered testimony

-- an "Event Study" that postulated an earlier entry date had there

- 25 -

not been a reverse payment in the AstraZeneca-Ranbaxy settlement

-- under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993). The district court first excluded McGuire's Event

Study testimony under Daubert. That Study purported to "use

econometric analysis of the stock market's reaction to the actual

settlement reached by AstraZeneca and Ranbaxy to estimate an

objective entry date without [a reverse] payment." While the court

acknowledged McGuire's expertise and stated that the Event Study's

methodology was "perhaps reliable," the Study did not meet Daubert

requirements because there was "no fit" "between the event study

and this culmination of the case." The court recognized that the

plaintiffs might nonetheless want to call McGuire a third time to

testify to "other things" besides the Event Study. It ruled,

however, that it still would not allow him to testify to those

"additional matters" because to do so would be "simply unfair."

Given that the court had said on November 18 that it

would allow the plaintiffs to recall McGuire, the court

acknowledged that its "no more McGuire" ruling could "change the

plaintiffs' position on mistrial." It directed the plaintiffs to

make "tactical decisions" on whether to reassess their initial

opposition to the defendants' mistrial motion.

The plaintiffs continued to oppose a mistrial. They

pointed out that despite the summary judgment ruling precluding

evidence of AstraZeneca's reverse payment to Ranbaxy, such

- 26 -

evidence had nonetheless been presented to the jury under another

theory. Indeed, the plaintiffs had introduced evidence on that

payment because it was relevant and admissible under the claim of

overarching conspiracy.3 Plaintiffs also argued that the "chopped

up" way in which McGuire's earlier testimony was presented to the

jury and the court's exclusion of McGuire's Event Study went "a

long way to curing whatever prejudice . . . these defendants may

have incurred."

Immediately following these statements, the court denied

the motion for mistrial.

3. Judgment as a Matter of Law on Conspiracy and Patent Invalidity

At the close of the plaintiffs' case, the defendants

moved for judgment as a matter of law on the overarching conspiracy

claim, as well as on the question of antitrust causation. The

court granted the motion on the conspiracy claim, noting that

3 The vigor with which the plaintiffs acknowledged the admission of evidence on the Ranbaxy reverse payment is worth noting: From the very beginning of this case the payment to Ranbaxy has been in clearly as at least an overt act in furtherance of the conspiracy. . . . But for [the defendants] to come here now and say, Oh, this was never in the case, that simply from our perspective is not true. It was unclear exactly how much and what role that payment was going to make, but it was clear it was in this as an overt act . . . . And we made our tactical choices and [the defendants] made theirs.

- 27 -

"[t]here [wa]s no sufficient evidence here that Ranbaxy and Teva

conspired together, [or] that they acted otherwise than in their

own individual best interest." Although the court "came within an

ace" of granting the motion on causation as well, it decided to

deny the motion for "prudential reasons" and let that question go

to the jury. The court did grant the defendants' motion on

causation with regard to any theory of antitrust causation based

on patent invalidity, as it found "no adequate evidence that any

of these patents would be adjudicated invalid." Earlier in the

trial, the plaintiffs had already told the court that they would

not pursue such a theory.

To be sure of the accuracy and consequences of its ruling

on patent invalidity, the court invited the parties to present

further arguments on that issue following its initial ruling. The

court subsequently refined its judgment regarding patent

invalidity. Specifically, the court credited the plaintiffs'

argument that, as a matter separate from the absolute validity of

the Nexium patents, patent holders like AstraZeneca protect their

patent monopoly and maximize profit in a world in which patent

infringement litigation may loom but has not taken place.

Accordingly, the court allowed the plaintiffs, independent of the

ruling on patent invalidity, to argue that the defendants could

have been incentivized to reduce the risk of patent invalidation

-- for instance, by paying to delay the market entry of generics.

- 28 -

On November 24, 2014, Teva settled and dropped out of

the suit, leaving only AstraZeneca and Ranbaxy as defendants.

4. Exclusion of Plaintiffs' Proposed Rebuttal Evidence

At the close of the defendants' case on December 2, 2014,

the plaintiffs unsuccessfully sought to admit rebuttal evidence,

which included the McGuire Event Study that the court had already

excluded; a report published by Federal Trade Commission ("FTC")

staff and entitled "Pay-for-Delay: How Drug Company Pay-Offs Cost

Consumers Billions"; and expert testimony from Dr. Keith Leffler.

Leffler, an economist, proffered testimony that "virtually all

Hatch-Waxman cases can be settled without reverse payments" and

that it would have been in both AstraZeneca's and Ranbaxy's

economic interest to enter into a payment-free settlement with a

February 2012 entry date. The court refused to admit any of this

evidence "because it [was] not true rebuttal" and should have been

introduced during the plaintiffs' case in chief.

5. Special Verdict Form and Jury Instructions

The district court first provided the parties with the

revised verdict form at a December 2, 2014 conference. This form

contained the following seven questions:

1. Did AstraZeneca exercise market power within the relevant market?

2. Did the settlement of the AstraZeneca-Ranbaxy patent litigation include a large and unjustified payment by AstraZeneca to Ranbaxy?

- 29 -

3. Was AstraZeneca's Nexium settlement with Ranbaxy unreasonably anticompetitive, i.e. did the anticompetitive effects of that settlement outw[ei]gh any pro-competitive justifications?

4. Had it not been for the unreasonably anticompetitive settlement, would AstraZeneca have agreed with Ranbaxy that Ranbaxy might launch a generic version of Nexium before May 27, 2014?

5. If so, what would be the effective date of such a license?

6. a. Had it not been for the unreasonably anticompetitive settlement, would Ranbaxy have agreed with Teva to launch a generic version of Nexium before May 27, 2014? b. If so, when would Teva have launched?

7. If a generic version of Nexium had come to market, would an authorized generic have entered at or about the same time?

After the court explained its revisions, it engaged in a colloquy

with the parties, which focused, in relevant part, on the

plaintiffs' objection that Question 4 applied a legally incorrect

"subjective" test for antitrust causation.

The district court instructed the jury the next day. On

Question 4, the court explained that answering "yes" to the first

three questions was insufficient because "[j]ust making a

deal . . . is not enough for liability[;] there has to be a harm."

The court further explained that although the question mentioned

by name AstraZeneca and Ranbaxy, it was "not necessarily just

focusing on the AstraZeneca–Ranbaxy settlement":

Now, the test here is an objective test. In other words I use the names "AstraZeneca" and "Ranbaxy"

- 30 -

because those are the folks we're talking about here, but the test is not what they did . . . we know what agreement they entered into, you would have found [in Question 3] that agreement is unreasonably anticompetitive. So then you're asked the question, "Well, suppose they didn't enter into such an agreement, suppose they were settling straight up without any anticompetitive effects, would that settlement license entry date have been earlier than the date they agreed to, May 27th, 2014?"

The court also reviewed Teva's role in the plaintiffs' theory --

namely, that had AstraZeneca not made a reverse payment to Ranbaxy,

their settlement agreement would have contained an earlier entry

date, which would have allowed Teva to obtain that same earlier

date or to partner with Ranbaxy for a joint launch of generic

Nexium. Finally, the court informed the jury that a "no" to any

question meant that the jury should not consider any subsequent


During the sidebar following the charge, each party

objected to certain aspects of the court's instructions. The court

had earlier warned that the parties had to raise their objections

at the end of the charge to preserve them for appeal. The

plaintiffs' objections to Question 4 were limited to the district

court's colloquial framing of that question. They also objected

to other aspects of the instructions unrelated to Question 4.

6. Plaintiffs' Closing Statement

The plaintiffs' closing expressly reminded the jury of

the "large and unjustified payment" from AstraZeneca to Ranbaxy.

- 31 -

Plaintiffs' counsel argued that "[i]t's large because it was worth

about $690 million to Ranbaxy, or according to [one witness], about

$300 million. It was going to cost AstraZeneca, in terms of lost

sales, about $500 million of its own revenues that it might be

able to get from the sale of [an authorized generic]." The

plaintiffs further urged the jury to draw inferences from that

payment: "By the fact that there was a payment you can infer that

there was a movement of that entry date. Absolutely. And [by]

the fact that this payment was so large you can infer that the

entry date was moved back and should have been earlier."

Notwithstanding the court's judgment as a matter of law

on the issue of patent invalidity, the plaintiffs' closing also

questioned the strength of AstraZeneca's Nexium patents and the

relevance of those patents to the defendants' settlement

agreement. The closing emphasized that the two defendants denied

"ever talk[ing] about the strengths and weaknesses of the patent

in order to negotiate some kind of date." Further, "[b]ecause

. . . there was never a negotiation here where the two companies

sat down and said we've got these claims on the patents . . .

here's infringement issues, let's see how we can negotiate on the

merits of this case a resolution," the plaintiffs urged the jury

to find that the AstraZeneca-Ranbaxy deal consisted of "payoffs

that weren't related to the merits." Upon the defendants'

objections to the plaintiffs' characterization of "the patent

- 32 -

merits a[s] a coin flip" during the closing, the court reminded

the jury that "on this record there is no evidence that any of

these patents at the end of the day would have been held invalid."

Finally, the plaintiffs' closing discussed at least two

mechanisms through which the Ranbaxy reverse payment could have

led to an antitrust injury in the form of a delayed generic launch.

First, they explained that AstraZeneca faced a "major risk of

potential at-risk launch . . . in late 2007 and early 2008" and

thus had an incentive to settle with Ranbaxy to avoid that outcome.

Next, the plaintiffs reminded the jury about the Lipitor analogy.

Articulating the "striking" similarities between Nexium and

Lipitor, the plaintiffs emphasized that generic Lipitor launched

despite Ranbaxy's regulatory troubles, while generic Nexium did

not, because the Lipitor settlement agreement did not contain a

no-AG clause and thus provided for an earlier entry date compared

to the Nexium settlement agreement.

7. Jury Verdict

After deliberating for two and a half days, the jury

returned a verdict for the defendants. The jury answered "yes" to

the first three questions, finding that the AstraZeneca-Ranbaxy

settlement contained a "large and unjustified payment" and had an

"unreasonably anticompetitive" market impact. But the jury

answered "no" to Question 4, finding that the plaintiffs had failed

to prove that AstraZeneca would have negotiated an entry date

- 33 -

earlier than May 27, 2014. Heeding the court's earlier

instructions, the jury stopped after its "no" answer.

C. Post-Trial Proceedings

On December 31, 2014, the plaintiffs moved for a new

trial based in part on allegedly contradictory evidence that

Ranbaxy had presented in litigation against the FDA in December

2014. One week later, a subset of plaintiffs moved for a permanent

injunction under Section 16 of the Clayton Antitrust Act, Pub. L.

63-212, 38 Stat. 730 (codified at 15 U.S.C. §§ 12-27, 29 U.S.C.

§§ 52-53). The district court denied both motions. See In re

Nexium [Post-Trial Opinion], 309 F.R.D. at 134, 143.

This appeal followed.


Plaintiffs have chosen to focus their appeal on the

partial grant of summary judgment, the exclusion of certain

evidence at trial, alleged errors in the district court's special

verdict form and jury instructions, and the grant of judgment as

a matter of law on the claim of overarching conspiracy. Plaintiffs

argue that any one of these alleged errors entitles them to a new


We disagree and affirm the district court's evidentiary

rulings, judgment as a matter of law on overarching conspiracy,

and decision to structure the special verdict form and jury

instructions in the manner that it did. Further, in light of the

- 34 -

jury verdict and other critical developments at trial on the issue

of patent invalidity, we decline to revisit the district court's

summary judgment rulings. It would be improper for an appeals

court to wade into such pretrial matters when, as here, a

confluence of the plaintiffs' trial strategy, the district court's

rulings, and the jury verdict rendered harmless any alleged error

at the summary judgment stage.

A. Evidentiary Rulings

The plaintiffs challenge numerous evidentiary rulings of

the district court. We find no error and affirm.

1. Exclusion of McGuire's Event Study Testimony

The plaintiffs argue that the district court committed

reversible error by refusing to allow Dr. Thomas McGuire to testify

for a third time after it concluded that the subject of his

testimony, the Event Study, was inadmissible under Daubert. We

review Daubert determinations for abuse of discretion. Ruiz-

Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77 , 81 (1st

Cir. 1998) (citing General Elec. Co. v. Joiner, 522 U.S. 136 , 141-

42 (1997)). Federal Rule of Evidence 702 requires district courts

to "ensur[e] that an expert's testimony both rests on a reliable

foundation and is relevant to the task at hand" before admitting

it into evidence. Daubert, 509 U.S. at 597. The district court,

as gatekeeper, must "ensure that there is an adequate fit between

- 35 -

the expert's methods and his conclusions." Samaan v. St. Joseph

Hosp., 670 F.3d 21 , 32 (1st Cir. 2012).

We conclude on the merits4 that the district court did

not abuse its discretion in excluding the Event Study and McGuire's

corresponding testimony. The court properly found that the Event

Study methodology -- which purported to use econometric analysis

of stock market data to "estimate an objective entry date without

[a reverse] payment" -- did not fit the conclusions for which it

was offered. Although such studies had previously been "admitted

on valuation, something much more germane to stock price," the

study had questionable relevance to hypothesizing the outcome of

a settlement agreement, especially one as crucial as the but-for

entry date in a reverse-payment case. Furthermore, when asked to

offer an example of another study that had used the Event Study

methodology to predict settlement terms, the plaintiffs could not

produce anything but an unpublished, non-peer-reviewed working

paper that McGuire co-authored during the course of this

litigation. The exclusion of McGuire's Event Study testimony under

these circumstances did not constitute an abuse of discretion.

4 As a threshold matter, the defendants argue that the plaintiffs are judicially estopped from appealing the exclusion of McGuire's Event Study, as they agreed to give up that evidence to defeat the defendants' mistrial motion. We need not reach this claim.

- 36 -

2. Exclusion of Other Aspects of McGuire's Testimony

The plaintiffs also accuse the district court of

improperly forbidding McGuire from testifying about three other

issues: (1) specific but-for entry dates, (2) "the purpose and

effect of the side deals" between AstraZeneca and Ranbaxy, and

(3) the exact size of the reverse payment from AstraZeneca to

Ranbaxy. We can quickly dispose of these arguments.

First, as to McGuire's testimony on the but-for entry

dates, examining the district court's decision in the context of

the overall record makes clear that the exclusion did not prejudice

the plaintiffs. During McGuire's second testimony, which took

place before the district court's mid-trial epiphany on the Ranbaxy

reverse payment's relevance, the court did not allow McGuire to

testify that Ranbaxy and Teva "would have been able to enter in

2011" but for the reverse payments. This ruling did not constitute

reversible error in light of events at trial that took place both

before and after the court's epiphany.

Even before its shift in thinking, the district court

gave McGuire leeway to testify about Ranbaxy's economic incentives

to enter into the settlement agreement with AstraZeneca. That

testimony, in turn, implied how the AstraZeneca-Ranbaxy settlement

could have led to delayed generic entry. In particular, McGuire

testified, during his second time on the stand, that the contingent

launch provision in Ranbaxy's settlement agreement diminished the

- 37 -

likelihood of subsequent ANDA filers seeking to enter the generic

Nexium market. "In fact," McGuire testified, "there were no

subsequent ANDA filers that pursued this [generic entry] through

litigation." The district court also permitted plaintiffs'

counsel to ask McGuire whether he had "reach[ed] a conclusion as

to whether Ranbaxy had an economic motive to agree to the

[contingent launch] clause." McGuire answered in the affirmative

and, over an objection, was allowed to elaborate that the

contingent launch provision "had the effect of reducing the

likelihood that Teva would challenge and break the bottleneck,

which mean[t] for Ranbaxy[,] it became more likely that [it was]

able to use [its] 180-day exclusivity period and make the profits

associated with that." Notwithstanding McGuire's inability to

testify to exact but-for entry dates, the district court afforded

him great latitude to give testimony on Ranbaxy's economic

incentives to block other ANDA filers and thus delay generic entry.

Next, after the court's adjustment in thinking, it

informed the parties that it would not allow McGuire to testify a

third time out of principles of fairness and that the plaintiffs

should consider this ruling's implications on their mistrial-

motion calculus. In addition, independent of its rulings regarding

McGuire, the court allowed testimony on but-for entry dates from

another expert, Dr. Cheryl Blume, whom the court described as the

plaintiffs' "lead witness" on this very issue. Blume testified as

- 38 -

part of the plaintiffs' case in chief over three days of trial

(November 18 to 20).

In the context of the court's rulings on McGuire and

Blume, the plaintiffs continued to oppose a mistrial. The record

does not show that they made any objections that they should have

been allowed to present cumulative evidence on specific but-for

entry dates through McGuire in addition to Blume. In short, the

plaintiffs had an opportunity to present evidence on hypothetical

earlier entry dates through Blume, and the district court was under

no obligation to also permit McGuire to testify on that same issue.

The plaintiffs' argument to the contrary seems to be little more

than an effort to admit cumulative and weaker evidence. See

McDonald v. Fed. Labs., Inc., 724 F.2d 243 , 248 (1st Cir. 1984);

cf. Fed. R. Evid. 403 ("The [trial] court may exclude relevant

evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence."). Plaintiffs have not shown any prejudice

resulting from the district court's decision not to permit

cumulative evidence, particularly from a witness who had already

been allowed to testify twice.

Next, the alleged errors in excluding McGuire's

testimony on the side deals and the size of the reverse payment

were harmless in light of the jury verdict. The "yes" answer to

- 39 -

Question 2 reflects the jury's finding that AstraZeneca made a

large and unjustified payment to Ranbaxy. Furthermore, as to the

size of the reverse payment, although McGuire could not assign a

specific dollar figure to the value of the reverse payment, the

district court did allow him to testify that it was worth "hundreds

of millions of dollars."

3. Pretrial Exclusion of Upadhye's Testimony

The plaintiffs also fault the district court for its

pretrial decision in limine to exclude testimony from Shashank

Upadhye, who sought to provide "a real world business perspective

on settlement negotiations for drug patent lawsuits."

Before reaching the merits, we must point out that,

despite the district court's clear instructions that its pretrial

decisions were "not rulings" and that the parties "must make

[their] objections known during the course of the trial," the

plaintiffs did not renew at trial their objections to the court's

in limine decision regarding Upadhye. In fact, although the

plaintiffs listed Upadhye as a witness whom they "m[ight] call" at

trial, they never actually attempted to do so. Under these

circumstances, the district court's in limine decision may not

even serve as proper grounds for a reversal. See, e.g., Littleton

v. McNeely, 562 F.3d 880 , 891 (8th Cir. 2009).

But even if the plaintiffs had properly objected to the

exclusion of Upadhye's testimony, there would be no error.

- 40 -

"Whether a witness is qualified to express an opinion is a matter

left to the sound discretion of the trial judge." McDonald, 724

F.2d at 248 (quoting A. Belanger & Sons, Inc. v. U.S. for Use &

Benefit of Nat'l U.S. Radiator Corp., 275 F.2d 372 , 376 (1st Cir.

1960)). Here, the district court excluded Upadhye's proposed

testimony because he was "not [an] economist[]" and "d[id] not

have the requisite qualifications to testify." That decision,

especially given Upadhye's reliance on his general experience and

his failure to cite any methodology undergirding his opinions, was

not an abuse of discretion. The district court may also have

"regarded [Upadhye's] proffered testimony as cumulative," as

McGuire had already testified about the Ranbaxy reverse payment

and Upadhye would have offered only a "real world" spin on that

testimony. Id.

4. Exclusion of Plaintiffs' Proposed Rebuttal Evidence

The plaintiffs next seek reversal on the ground that the

district court's exclusion of their "rebuttal" evidence was error.

Not so. "The principal objective of rebuttal is to permit a

litigant to counter new, unforeseen facts brought out in the other

side's case." Faigin v. Kelly, 184 F.3d 67 , 85 (1st Cir. 1999).

"[T]he decisions as to what constitutes proper rebuttal

evidence . . . lie within the sound discretion of the trial judge

and are subject to substantial deference." United States v.

LiCausi, 167 F.3d 36 , 52 (1st Cir. 1999).

- 41 -

The plaintiffs sought to admit three pieces of evidence,

purportedly in an effort to rebut the testimony of two defense

witnesses, "that AstraZeneca never 'express[ed] any willingness to

agree to any' date other than May 27, 2014." The proposed rebuttal

evidence consisted of (1) McGuire's Event Study testimony, which

the district court had already rejected as part of the plaintiffs'

case in chief; (2) an economic analysis of a no-payment settlement

by another expert, Dr. Keith Leffler; and (3) a study published by

FTC staff. At oral argument, the plaintiffs insisted that their

inability to admit any rebuttal evidence, coupled with other

alleged errors of the district court, meant that "all the jury

heard was some officers of [the defendants'] company saying they

wouldn't do things differently."

Contrary to the plaintiffs' statement, the district

court properly refused to admit the plaintiffs' proposed rebuttal

evidence, reasoning that it "was hardly true rebuttal testimony

because establishing [the date on which the defendants would have

agreed to a generic launch but for a reverse payment] was an

essential part of the Plaintiffs' prima facie case." Indeed, given

the centrality of this date to the entire litigation and especially

to the plaintiffs' need to prove an antitrust injury, it was

entirely foreseeable that the defendants would assert that the

date would not have been earlier than May 27, 2014. It was thus

within the district court's discretion to rule that the defendants'

- 42 -

testimony to that effect offered nothing "new" to warrant use of

the plaintiffs' proffered evidence as rebuttal. See Faigin, 184

F.3d at 85.

The plaintiffs respond by emphasizing the unique

circumstances of this trial. Given that the district court first

directed them to focus their case on the Teva reverse payment but

radically adjusted its understanding mid-trial to recognize the

relevance of the Ranbaxy reverse payment, the plaintiffs argue

that the district court was required to give them an opportunity,

at rebuttal, "to present evidence relating to the newly revived

issue." Alberty-Vélez v. Corporación de Puerto Rico para la

Difusión Pública, 242 F.3d 418 , 422 (1st Cir. 2001) (quoting Leddy

v. Standard Drywall, Inc., 875 F.2d 383 , 386 (2d Cir. 1989)). But

the record does not support the plaintiffs' contention that the

district court did not afford them such an opportunity. Instead,

the record portrays the plaintiffs' neglect in seeking to admit

relevant testimony after the court course-corrected (with the

exception of McGuire's Event Study, which was supportably excluded

on Daubert grounds, as discussed above).

The plaintiffs made no effort to seek admission of the

FTC study or Leffler's testimony as part of their case in chief,

even though they had two days between the district court's epiphany

and the end of their case in chief to do so. They offer no

explanation on appeal of their failure to seek admission of the

- 43 -

FTC study before resting their case. And while they do explain

that they could not call Leffler on short notice because he resided

in Seattle, the record does not indicate that the plaintiffs

brought this geographical limitation to the district court's

attention. In short, the plaintiffs had a window of opportunity

to seek admission of the FTC study and Leffler's testimony before

resting their case. Given their own failure to do so, we conclude

that it was within the district court's discretion to refuse to

admit that evidence, which properly belonged in the plaintiffs'

case in chief, and not in their rebuttal.

B. Judgment as a Matter of Law on Overarching Conspiracy

The plaintiffs argue that the district court erroneously

granted judgment as a matter of law ("JMOL") on the overarching

conspiracy claim. They argue that they had proved the existence

of contingent launch provisions in the defendants' settlement

agreements, that this evidence had sufficed to survive summary

judgment, and that thus it necessarily was enough to defeat JMOL.

But this reasoning mixes apples and oranges.

We review de novo a district court's decision to grant

JMOL. Malone v. Lockheed Martin Corp., 610 F.3d 16 , 19 (1st Cir.

2010). An antitrust conspiracy claim under Section 1 of the

Sherman Act, 15 U.S.C. § 1, requires evidence of an actual

"'agreement[]' -- whether tacit or express." White v. R.M. Packer

Co., 635 F.3d 571 , 575 (1st Cir. 2011). "[I]ndependent decisions,

- 44 -

even if they lead to the same anticompetitive result as an actual

agreement among market actors," are insufficient to sustain a

Section 1 conspiracy claim. Id. As a result, mere parallel

conduct and "[e]ven 'conscious parallelism,' a common reaction of

firms in a concentrated market that recognize their shared economic

interests and their interdependence with respect to price and

output decisions[,] is not in itself unlawful." Bell Atl. Corp.

v. Twombly, 550 U.S. 544 , 553–54 (2007) (alterations omitted)

(quoting Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509

U.S. 209 , 227 (1993)).

The law distinguishes illegal tacit agreements from

"mere conscious parallelism" through evidence of "uniform behavior

among competitors, preceded by conversations implying that later

uniformity might prove desirable or accompanied by other conduct

that in context suggests that each competitor failed to make an

independent decision." White, 635 F.3d at 576 (emphasis added)

(quoting Brown v. Pro Football, Inc., 518 U.S. 231 , 241 (1996));

see also Dickson v. Microsoft Corp., 309 F.3d 193 , 203 (4th Cir.

2002) (concluding that a "rimless wheel conspiracy" -- in which

"various defendants enter into separate agreements with a common

defendant, but where the defendants have no connection with one

another, other than the common defendant's involvement in each

transaction" -- is "not a single, general conspiracy but instead

amounts to multiple conspiracies between the common defendant and

- 45 -

each of the other defendants" (citing Kotteakos v. United States,

328 U.S. 750 , 755 (1946))).

The plaintiffs point to parallel contingent launch

provisions in AstraZeneca's settlements with each generic

manufacturer as evidence of the existence of one overarching

conspiracy. Under these provisions, the generic manufacturers

agreed to delay launching generic Nexium until May 27, 2014, or an

earlier date on which AstraZeneca or a court order permitted them

to do so. Beyond the provisions, however, the plaintiffs fail to

present any evidence that Ranbaxy and Teva agreed to engage in

anticompetitive conduct.

Given the dearth of additional evidence, the district

court correctly recognized that "[t]here is no sufficient evidence

here that Ranbaxy and Teva conspired together, that they acted

otherwise than in their own individual best interest." Indeed,

some evidence that Ranbaxy and Teva, independent of AstraZeneca,

agreed to engage in anticompetitive conduct was critical because

self-interest could explain equally well why each might execute a

contingent launch provision. After all, as defendant Ranbaxy

explains, "[e]ach generic company would have wanted to ensure that

no other generic preceded its entry into the market -- and would

have sought that assurance by obtaining a contingent launch

provision in its settlement agreement." In short, without proving

"the existence of a 'rim' to the wheel in the form of an agreement

- 46 -

among" the generic manufacturers, the plaintiffs did not have a

viable claim of overarching conspiracy to survive JMOL. United

States v. Apple, Inc., 791 F.3d 290 , 314 n.15 (2d Cir. 2015).

The three cases that the plaintiffs string cite do not

alter our assessment. See United States v. Masonite Corp., 316

U.S. 265 (1942); Interstate Circuit v. United States, 306 U.S. 208

(1939); Toys "R" Us, Inc. v. FTC, 221 F.3d 928 (7th Cir. 2000).

The cases do not say, as plaintiffs argue, that interdependent

conduct, absent more, suffices to establish overarching

conspiracy. Properly read, they in fact reinforce the opposite


First, contrary to the plaintiffs' argument, Masonite

makes no holding on horizontal conspiracy. There, Masonite, a

manufacturer of building materials, developed a product called

hardboard and obtained patents for both the product and the process

for manufacturing it. 316 U.S. at 267–68. When competitors began

manufacturing hardboard, Masonite sued each of them for patent

infringement, id. at 268–70, but eventually settled each suit on

identical terms, including a price-fixing term, id. at 270–73.

The Supreme Court upheld the district court's factual findings

that each of Masonite's competitors had "acted independently of

the others, negotiated only with Masonite, desired the agreement

regardless of the action that might be taken by any of the others,

did not require as a condition of its acceptance that Masonite

- 47 -

make such an agreement with any of the others, and had no

discussions with any of the others." Id. at 275. The Court then

held that the individual vertical contracts between Masonite and

each competitor violated § 1 of the Sherman Act. Id. That was

the extent of Masonite's holding. Indeed, to read Masonite as

having found an overarching horizontal conspiracy would be

"nonsensical" because "an essential conspiracy element [wa]s

missing -- namely, a motive for joint action or interdependence."

6 Areeda & Hovenkamp, Antitrust Law ¶ 1427d (2d ed. 2003).

The second case that the plaintiffs cite, Interstate

Circuit, is also of no help to their claim of error. Unlike this

case, in which the district court found no evidence to infer any

agreement between Ranbaxy and Teva, the Court in Interstate Circuit

saw enough circumstantial evidence to find a "tacit agreement"

among all defendants. 306 U.S. at 225-27; White, 635 F.3d at 576.

There, "a dominant movie theater company sent a letter openly

addressed to all eight major national film distributors stating

that it would show a distributor's films only if the distributor

imposed certain restrictions on later runs of the films in

secondary theaters." White, 635 F.3d at 576. "[T]he economic

context made it clear that all eight needed to act uniformly or

all would lose business, and all eight did in fact impose the

conditions." Id. By contrast, here, the district court found

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that the plaintiffs had presented insufficient evidence from which

to infer even a tacit agreement.

Finally, Toys "R" Us is also inapposite because evidence

in that case showed that entering into parallel agreements with

Toys "R" Us ("TRU") was against each toy manufacturer's interest

unless all of them did so. TRU, "a giant in the toy retailing

industry," had executed agreements with various toy manufacturers

that TRU would carry the manufacturers' toys only if they promised

to curb sales to warehouse club stores like Costco that sold toys

at lower prices than did TRU. 221 F.3d at 930. The Seventh

Circuit affirmed an FTC finding of a horizontal conspiracy among

the toy manufacturers for two reasons. First, "the record . . .

included the direct evidence of communications" among the toy

manufacturers. Id. at 935. Second, the evidence showed that it

was actually against the toy manufacturers' economic interest to

curb sales to warehouse clubs unless they all did so:

The evidence showed that the companies wanted to diversify from TRU, not to become more dependent upon it; it showed that each manufacturer was afraid to curb its sales to the warehouse clubs alone, because it was afraid its rivals would cheat and gain a special advantage in that popular new market niche. . . . [T]he only condition on which each toy manufacturer would agree to TRU's demands was if it could be sure its competitors were doing the same thing.

Id. at 936. The record in this case contains no such evidence.

- 49 -

In Interstate Circuit and Toys "R" Us, there were "plus

factors" -- i.e. "additional facts or factors required . . . as a

prerequisite to finding that parallel action amounts to a

conspiracy." 6 Areeda & Hovenkamp, supra, ¶ 1433e ("Even those

courts that say that conscious parallelism is a factor 'to be

weighed, and generally to be weighed heavily' in establishing a

§ 1 violation are usually speaking about fact situations in which

there is other evidence of conspiracy." (emphasis added) (footnote


The plaintiffs' briefs do not focus on the lack of

evidence to prove their claim of overarching conspiracy. Instead,

they primarily argue that the district court initially ruled in

their favor at summary judgment and that the court should not have

reversed itself at the JMOL stage. In so doing, the plaintiffs

fail to consider that the summary judgment ruling may have been in

error. Nor do they recognize that the JMOL reasoning, not the

summary judgment reasoning, has found agreement in at least two

other trial courts that have considered the issue. See In re Actos

End Payor Antitrust Litig., No. 13-CV-9244(RA), 2015 WL 5610752 ,

at *24 (S.D.N.Y. Sept. 22, 2015); King Drug Co. of Florence, Inc.

v. Cephalon, Inc., No. 2:06-CV-1797, 2014 WL 2813312 , at *14 (E.D.

Pa. June 23, 2014). There was no error.

Finally, the Individual Retailer plaintiffs misrepresent

the district court's opinion denying them a new trial. They

- 50 -

contend that after the court recognized its summary judgment ruling

as "a bit too sweeping," it nonetheless "reverted to the summary

judgment rationale . . . that the evidence was sufficient to

support a finding that 'AstraZeneca was the hub of a hub-and-spoke

conspiracy.'" Quoted in full, however, the district court actually

reaffirmed its JMOL ruling, noting that "[a]t trial, the evidence

warranted, at most, a finding that AstraZeneca was the hub of a

hub-and-spoke conspiracy with the three generic manufacturers

acting as competitors vis-à-vis each other, not conspirators." In

re Nexium [Post-Trial Opinion], 309 F.R.D. at 115 n.13 (emphasis

added). In other words, the court recognized that although the

evidence might show one conspiracy between AstraZeneca and Ranbaxy

and another disparate conspiracy between AstraZeneca and Teva, the

evidence was legally insufficient to tie all three players in an

overarching conspiracy. We find no error in the district court's

decision to grant JMOL on the overarching conspiracy claim in light

of the plaintiffs' inability to cite any supporting evidence other

than the parallel contingent launch provisions.

C. Special Verdict Form and Jury Instructions

The final verdict form that went to the jury asked seven

questions and was structured so that a "no" answer to any question

meant that the jury could stop considering the rest. As relevant

here, the first four questions asked:

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1. Did AstraZeneca exercise market power within the relevant market?

2. Did the settlement of the AstraZeneca-Ranbaxy patent litigation include a large and unjustified payment by AstraZeneca to Ranbaxy?

3. Was AstraZeneca's Nexium settlement with Ranbaxy unreasonably anticompetitive, i.e. did the anticompetitive effects of that settlement outw[ei]gh any pro-competitive justifications?

4. Had it not been for the unreasonably anticompetitive settlement, would AstraZeneca have agreed with Ranbaxy that Ranbaxy might launch a generic version of Nexium before May 27, 2014?

On appeal, the plaintiffs argue that Question 4 impermissibly

"require[d] a specific factual sequence of causation," that it was

duplicative of Question 3, that it erroneously posed a "subjective"

test about the intent of the defendants, and that its wording was

"confusing" and "misled the jury." The defendants respond that

all of these objections were either waived or forfeited.

If a party fails to preserve its objections to jury

instructions after the jury is charged, those objections are

forfeited on appeal and reviewed only for plain error. Booker v.

Mass. Dep't of Pub. Health, 612 F.3d 34 , 42 (1st Cir. 2010). Plain

error, "a hard-to-meet standard," requires the appellant to show

"that '(1) an error occurred (2) which was clear or obvious and

which not only (3) affected the [appellant's] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings.'" Tasker v. DHL Ret.

- 52 -

Savings Plan, 621 F.3d 34 , 40–41 (1st Cir. 2010) (alteration in

original) (quoting Dávila v. Corp. de P.R. Para La Difusión

Pública, 498 F.3d 9 , 14–15 (1st Cir. 2007)).

Furthermore, "with respect to special verdicts, 'the law

is perfectly clear that parties waive any claim of internal

inconsistency by failing to object after the verdict is read and

before the jury is discharged.'" Trainor v. HEI Hosp., LLC, 699

F.3d 19 , 34 (1st Cir. 2012) (alterations omitted) (quoting Peckham

v. Cont'l Cas. Ins. Co., 895 F.2d 830 , 836 (1st Cir. 1990)). This

has been an "iron-clad rule" in our circuit. Rodriguez-Garcia v.

Mun. of Caguas, 495 F.3d 1 , 9 (1st Cir. 2007). Although we could

altogether decline to hear the plaintiffs' arguments about the

verdict form on waiver grounds, the FTC's amicus brief highlights

the importance of straightening out the conflation of antitrust

violation and antitrust injury that crept into the district court's

post-trial opinion and into some of the parties' arguments on

appeal. We accept the FTC's invitation to provide greater clarity.

Two of the plaintiffs' four objections seem to arise

from this wrongful conflation. The plaintiffs protest that

Question 4 was duplicative of Question 3 and that Question 4 held

the plaintiffs to an impermissibly stringent causation standard.5

5 In their proposed special jury verdict form, the plaintiffs suggested precisely the same split in questions between antitrust violation and antitrust injury (in the form of a delayed generic entry).

- 53 -

Neither argument holds water, and in fact each shows that the

plaintiffs may have obscured the clear law that, as private

plaintiffs seeking damages, they must prove not only an antitrust

violation but also an antitrust injury that allows recovery of


Private plaintiffs and the FTC as government enforcer

stand in different shoes. Under the governing antitrust statutes,

the FTC is empowered to directly enforce the substantive antitrust

laws. See 15 U.S.C. § 45(a)(2). Meanwhile, private plaintiffs

derive their authority to sue from Section 4 or 16 of the Clayton

Act and must therefore satisfy the additional evidentiary burdens

that those provisions impose. See id. §§ 15, 26. As the FTC's

amicus brief aptly explains, "[t]his distinction is rooted in

public policy. The interest of private plaintiffs is to remediate

an injury they have suffered or may suffer. The interest of the

government is to 'prevent and restrain' violations of the antitrust

laws along with the attendant social costs such violations can


The Supreme Court has consistently held private

plaintiffs to this standard of proving both antitrust violation

and antitrust injury. See, e.g., Atl. Richfield Co. v. USA

6 Because the plaintiffs do not appeal the district court's denial of their post-trial motion for an injunction, they evidently seek a new trial in order to recover damages.

- 54 -

Petroleum Co., 495 U.S. 328 , 344 (1990) ("'[P]roof of [an

antitrust] violation and of antitrust injury are distinct matters

that must be shown independently.' For this reason, . . . the

right of action under § 4 of the Clayton Act is available only to

those private plaintiffs who have suffered antitrust injury."

(quoting Areeda & Hovenkamp, Antitrust Law ¶ 334.2c (1989 Supp.))).

A private plaintiff seeking monetary relief must show actual,

quantifiable damages "by reason of" the antitrust violation.

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

Carpenters, 459 U.S. 519 , 543 (1983); see also Brunswick Corp. v.

Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 , 489 (1977) (defining

"antitrust injury" as "injury of the type the antitrust laws were

intended to prevent and that flows from that which makes

defendants' acts unlawful").

Assessed under this framework, Questions 3 and 4 are

neither duplicative nor both aimed at causation. Rather, the

former asks the jury about antitrust violation, while the latter

asks about antitrust injury. The jury's "yes" answers to Questions

2 and 3 (large and unjustified payment with anticompetitive

effects) confirm its finding that some antitrust violation

resulted from the AstraZeneca-Ranbaxy settlement. Question 4, by

contrast, inquires whether these private plaintiffs have suffered

an "injury of the type the antitrust laws were intended to prevent"

by asking whether Ranbaxy (in partnership with Teva) would have

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launched a generic earlier than May 27, 2014 but for the antitrust

violation found in Question 3. Brunswick, 429 U.S. at 489. The

"no" answer to Question 4 thus confirms the jury's finding that

notwithstanding the existence of an antitrust violation, the

plaintiffs failed to establish an antitrust injury that entitled

them to monetary relief.

As Questions 3 and 4 played discrete and independently

necessary roles in adjudicating an antitrust suit brought by

private plaintiffs, we reject the plaintiffs' protests that the

questions led to an "absurd" outcome. There was nothing absurd in

the jury verdict. In fact, this circuit has reached similar

conclusions in past antitrust cases. See, e.g., Ocean State

Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of R.I.,

883 F.2d 1101 , 1105 (1st Cir. 1989) (observing that district court

granted a renewed motion for JMOL in defendant's favor in part

because "the jury's award of 'no damages' on the antitrust claim

meant that plaintiffs had failed to prove that they had been

injured by any illegal conduct by [the defendant]").

The plaintiffs next object that Question 4 erroneously

used the defendants' names and framed the relevant inquiry as a

subjective, rather than an objective, test. The record refutes

this argument. After the plaintiffs initially raised these

concerns at the December 2, 2014 conference, the court clarified

to the jury that "the test here is an objective test. In other

- 56 -

words[,] I use the names 'AstraZeneca' and 'Ranbaxy' because those

are the folks we're talking about here, but the test is not what

they did." The plaintiffs failed to renew their objections

following these instructions. Examining Question 4 in the context

of the verdict form and jury instructions "as a whole," Johnson v.

Teamsters Local 559, 102 F.3d 21 , 28 (1st Cir. 1996), we conclude

that the use of defendants' names did not constitute reversible


The plaintiffs lastly argue that Question 4 was

confusingly worded and capable of multiple "legally erroneous"

interpretations. This objection suffers from the same defect as

the others in that it was not preserved during the post-charge

sidebar. The forfeited argument is unable to withstand plain error

review, especially when examined in the context of the

comprehensive instructions that the court provided to facilitate

the jury's understanding of the verdict form. First, the

plaintiffs' suggestion that the jury could have interpreted

Question 4 to be asking "whether AstraZeneca would allow Ranbaxy

to get Ranbaxy's product to market" is meritless in light of the

court's jury charge:

The plaintiffs' claim is not that Ranbaxy would have launched, no evidence of that, their claim is that had AstraZeneca not made a large payment to Ranbaxy, they would have settled with a date for generic entry before May 27th, 2014. . . . And that Teva then would have obtained the same or

- 57 -

earlier date . . . or that . . . Teva would have made a deal with Ranbaxy allowing Teva to launch.

Likewise, the plaintiffs' concern that Question 4 imprecisely used

the phrase "anticompetitive settlement," rather than "large and

unjustified payment," is alleviated by jury instructions

explaining how the presence of a large and unjustified payment in

a paragraph IV litigation settlement renders that settlement


Perhaps the verdict form was inartfully phrased. But in

the context of the thorough jury instructions and the plaintiffs'

own failure to preserve objections, the plaintiffs cannot argue

that any phrasing imperfection "seriously impaired the fairness,

integrity, or public reputation of the judicial proceedings."

Tasker, 621 F.3d at 41 (quoting Dávila, 498 F.3d at 14–15).

D. Summary Judgment

We finally arrive at the core of the plaintiffs' appeal.

The plaintiffs argue that they had but one antitrust causation

theory at trial: "In this regulatory climate, generics will get to

market in some way, and we can't know exactly how." The district

court erred, they say, in prematurely cutting off at summary

judgment many causal mechanisms through which they could have

proved this theory to a jury. The defendants respond in three

ways: (1) the plaintiffs' theory of antitrust causation is actually

a hodgepodge of disparate theories, none of which independently

- 58 -

proves causation, (2) later events at trial moot any potential

summary judgment error, and (3) the summary judgment ruling was

correct on its merits.

Even accepting dubitante the level of generality at

which the plaintiffs characterize their causation theory, we agree

with the defendants that any error at summary judgment was rendered

harmless by the jury verdict and by later trial proceedings on the

issue of patent invalidity. We are satisfied that the evidence in

support of even those causal mechanisms purportedly excluded at

summary judgment was in fact put before the jury, as that evidence

was relevant under other concededly admitted theories. The

district court recognized the relevance of that evidence and

generously admitted much of it notwithstanding the summary

judgment ruling (which it later reversed).

Plaintiffs identify four causal theories they say were

cut off at summary judgment. First, Ranbaxy could have launched

its generic Nexium at risk before February 2009. Second, Teva

could have won a final, nonappealable judgment in its paragraph IV

suit against AstraZeneca, thereby forcing Ranbaxy to launch its

generic within 75 days or forfeit its exclusivity, which would

have allowed Teva to launch before May 2014. Third, Ranbaxy could

have negotiated an earlier license date with AstraZeneca and

launched (either alone or in partnership with Teva) before May

2014. Finally, Ranbaxy could have negotiated an earlier license

- 59 -

date with AstraZeneca and then forfeited its first-filer

exclusivity, which would have allowed another manufacturer like

Teva to launch before May 2014.

Ordinarily, "[w]e review the merits of the entry of

partial summary judgment de novo." Vélez v. Awning Windows, Inc.,

375 F.3d 35 , 41 (1st Cir. 2004). But we have refused to "reenter

th[e] morass" of summary judgment where it was "perfectly clear

that, even if [a plaintiff's claim] should not have been dismissed

on partial summary judgment, any such mistake was harmless, given

the jury's verdict in [the defendant's] favor on [other claims]

addressed to the very same [factual circumstances]." Fite v. Dig.

Equip. Corp., 232 F.3d 3 , 6 (1st Cir. 2000). We have so held in

the antitrust context. See Fraser v. Major League Soccer, LLC,

284 F.3d 47 , 60-61 (1st Cir. 2002).

An examination of the four supposedly foreclosed causal

mechanisms, in light of later events at trial, reveals that the

outcome would have been in the defendants' favor even had the

mechanisms been explicitly put in questions to the jury. In

particular, the first two mechanisms were mooted by the district

court's grant of JMOL on any theory involving the invalidity of

AstraZeneca's patents. Indeed, the argument that Ranbaxy would

have incurred the risk of launching at risk or that Teva would

have won its paragraph IV suit against AstraZeneca depends on the

theory that AstraZeneca's Nexium patents were invalid or not

- 60 -

infringed by a generic version. The district court's JMOL ruling,

however, found "no adequate evidence that any of [the Nexium]

patents would be adjudicated invalid." Accordingly, even if the

district court had allowed the plaintiffs to present these two

causal mechanisms at trial, the court's later judgment would have

yielded the same outcome in favor of the defendants.

Plaintiffs respond that they should not have to prove

patent invalidity or noninfringement to be able to present their

at-risk launch causation theory. They principally rely on two

circuit cases to advance this argument, but to no avail. See In

re Cardizem CD Antitrust Litig., 332 F.3d 896 (6th Cir. 2003);

Andrx Pharm., Inc. v. Biovail Corp. Int'l, 256 F.3d 799 (D.C. Cir.

2001). Both of these cases were decided before the Supreme Court's

Actavis decision, which may call into question aspects of their

analyses. Even assuming that the two decisions survive Actavis,

they are still inapposite to our inquiry because both cases

evaluated allegations of antitrust injury at the Rule 12(b)(6)

stage. See In re Wellbutrin XL Antitrust Litig., 133 F. Supp. 3d

734 , 765 n.46 (E.D. Pa. 2015), appeal pending, No. 15-3559 (3d

Cir.). In In re Cardizem, for instance, the Sixth Circuit held

that the defendants' argument -- that their decision to stay out

of the generic market was motivated not by a reverse payment, but

rather by a fear of damages resulting from patent infringement

litigation -- "merely raise[d] a disputed issue of fact that [could

- 61 -

not] be resolved on a motion to dismiss." 332 F.3d at 900. The

Cardizem court did not altogether reject the potential relevance

of patent invalidity or noninfringement evidence in evaluating the

viability of an antitrust-injury theory based on an at-risk launch.

So too in Andrx, 256 F.3d at 805, and United Food & Commercial

Workers Local 1776 v. Teikoku Pharma USA, Inc., 74 F. Supp. 3d

1052 , 1074 (N.D. Cal. 2014), yet another case that the plaintiffs


In re Wellbutrin XL, a post-Actavis decision at the

summary judgment stage, is persuasive. 133 F. Supp. 3d 734 .

There, the district court granted summary judgment to the

defendants, who were producers and distributors of a branded

antidepressant drug, on the plaintiffs' at-risk theory of

antitrust injury because the plaintiffs proffered no evidence of

patent invalidity or noninfringement. Id. at 764–67. The court

acknowledged that, if shown, "[t]he existence of a valid and

uninfringed patent would interfere with the plaintiffs' chain of

causation: a valid patent independently precludes competition

apart from any agreement and an 'at risk' launch is unlawful absent

7 In fact, the district court in Teikoku expressly distinguished In re Nexium, describing it as "a case where the generic manufacturer moved for summary judgment, and offered unrebutted evidence 'that an at risk launch was "unlikely" and "extremely risky."'" 74 F. Supp. 3d at 1074. In contrast, Teikoku dealt with "a motion to dismiss and defendants cite[d] to no comparable evidence that [wa]s properly before the [c]ourt at th[at] juncture." Id.

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a later finding of patent invalidity or non-infringement." Id. at

764 (citation and alterations omitted).

But there, as here, the plaintiffs did not present such

evidence that the brand-name's patents would have been declared

invalid or that an at-risk launch would not have infringed the

patents. And without such evidence, the "patent served as an

independent regulatory bar to [a generic's] launch." Id. at 767.

So too here. Upon the conclusion of the plaintiffs' case in chief,

the district court saw no evidence that would allow the plaintiffs

to overcome the likelihood that AstraZeneca's patents, not its

reverse payment to Ranbaxy, were the bar to a generic launch. The

district court thus did not err by requiring some evidence of the

patents' invalidity or noninfringement before allowing the

plaintiffs to pursue an at-risk launch theory.

Furthermore, the district court's ruling on patent

invalidity did not prejudice the plaintiffs, for two reasons.

First, the plaintiffs are simply wrong to insist that the district

court decided and ruled out of the case the issue of patent

invalidity at summary judgment. In fact, the plaintiffs

acknowledged the availability of that line of reasoning -- and

their strategic choice not to pursue it -- at a conference on the

second day of trial: "We don't plan on proving a patent case inside

of an antitrust case. . . . [W]e do not plan to be proving that

Teva would have won the [paragraph IV] litigation." The plaintiffs

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then reaffirmed their strategic choice on November 20, 2014, at

the same conference during which they opposed the defendants'

motion for a mistrial. At that conference, they assented to the

court's characterization of their position as not having "proved

that the patents would have been declared invalid, and [arguing]

that that plays no role in this [trial]."

The district court's statements during trial likewise

reveal its consistent understanding that the summary judgment

ruling did not prevent the plaintiffs from offering patent

invalidity evidence if they chose to do so. For instance, in its

initial instructions to the jury at the beginning of trial, the

district court explained that the plaintiffs would have to

"convince [the jury] . . . that Teva entered into its deal with

AstraZeneca, staying out of the market, letting AstraZeneca charge

its supracompetitive prices for its branded Nexium product, and if

it hadn't done that, it could . . . have defeated the patent,

AstraZeneca's patents," received FDA approval, and partnered with

Ranbaxy to jointly launch a generic. The district court's view of

the impact of its summary judgment ruling on patent invalidity did

not change by the end of trial. At the December 2, 2014 charge

conference, it reminded the plaintiffs: "I think that you will

find, when you look at the record, I've never prevented the patent

evidence[;] I've said you have to lay an adequate foundation for

it." Because the ruling on patent invalidity did not take place

- 64 -

until after the plaintiffs' case in chief, at the JMOL stage, the

timing of the ruling could not have foreclosed any evidence that

the plaintiffs wished to put forth at trial. Any decision to limit

evidence on patent invalidity was a voluntary and strategic choice

on the plaintiffs' part.

Second, even after the JMOL ruling, the district court

was careful to point out, and correctly so, that its decision did

not foreclose the plaintiffs from making any arguments based on

AstraZeneca's assessment of risk to its patent monopoly. That is,

the court recognized that regardless of the absolute validity or

invalidity of patents, business players make reverse payment

decisions in an environment in which that validity has not yet

been adjudicated. They take into account the risk of litigation

and the possibility that patents may be adjudicated invalid or

uninfringed. The court explained this distinction between patent

invalidity and assessment of risk to the jury: "I went into the

case thinking . . . that one of the things the plaintiffs had to

prove was that Teva would have won its patent case against

AstraZeneca. And I've come to think now that legally that's not

key, that's not what the plaintiffs have to prove." In sum, while

the JMOL ruling on patent invalidity mooted the causal mechanisms

based on at-risk launch and Teva's ability to win a paragraph IV

litigation against AstraZeneca, the JMOL ruling did not prejudice

the plaintiffs' argument that the defendants had incentives to

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violate antitrust laws. Indeed, the jury verdict confirms this

lack of prejudice, as it found that AstraZeneca made a large and

unjustified payment to Ranbaxy and that their settlement agreement

had unreasonably anticompetitive effects.

As for the next two causal mechanisms claimed to have

been cut off at summary judgment, the jury's "no" answer to

Question 4 renders any error harmless. That answer reflected the

jury's finding that AstraZeneca would not have agreed to settlement

terms with a license date earlier than May 27, 2014, the date on

which two of its medical patents expired. In light of that

finding, it made no difference to the outcome of the trial whether

the plaintiffs were able to present their theory that Ranbaxy could

have negotiated an earlier license date with AstraZeneca and

themselves launched or allowed Teva to launch before May 2014.

The plaintiffs respond that the jury had insufficient

evidence upon which to answer Question 4 differently. At oral

argument, the plaintiffs emphasized that their inability to

introduce evidence on the possibility of a Ranbaxy or Teva at-risk

launch,8 or of Ranbaxy's forfeiture of its first-filer status, had

meant that the jury had had no information on what "would have

8 Of course, as we have now repeated numerous times, the plaintiffs voluntarily chose not to pursue the causal mechanism involving Teva's at-risk launch after the district court informed them that such an argument would trigger jury instructions about their need to prove patent invalidity.

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motivated AstraZeneca to accept an earlier entry date." In other

words, the plaintiffs argue that without evidence on at-risk launch

or forfeiture, the jury could not appreciate the threat that

Ranbaxy posed to AstraZeneca or the incentive that AstraZeneca had

to cut a deal with an earlier entry date.

However, the jury answered "yes" to Questions 2 and 3 in

the plaintiffs' favor, despite the supposed exclusion of such

evidence. Indeed, this exact evidence -- about Ranbaxy's potential

adverse impact on AstraZeneca's bottom line -- must have, and did,

come in because the jury in fact found that AstraZeneca felt enough

of a threat to offer a large and unjustified payment to Ranbaxy

(Question 2) and offer settlement terms in violation of the

antitrust laws (Question 3). The plaintiffs fail to explain what

other evidence, unique to Question 4, the district court

impermissibly excluded to impede the jury's ability to answer that

question. To elaborate, while the plaintiffs recycle their

grievances about the exclusion of Leffler's and McGuire's

testimony on the Event Study, possible but-for entry dates, the

purpose and effect of AstraZeneca's side deals with Ranbaxy, and

the value of the reverse payment to Ranbaxy, we have already found

above that all of this evidence was properly excluded. Ultimately,

the jury had sufficient evidence to answer "yes" to Question 4, as

well as Questions 2 and 3. Because the plaintiffs cannot point to

improperly excluded evidence specific to Question 4, we cannot

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accept their argument on the insufficiency of the evidence

underlying the jury verdict.

In light of the jury verdict and other events at trial

that mooted any summary judgment error, we find no occasion to

readjudicate the merits of the district court's pretrial decision.

The plaintiffs are not entitled to set aside the jury verdict.


In any litigation, each party must make "tactical

choices" about what pretrial motions to file, what evidence to

present, and what objections to renew or forfeit. This case was

no different. And despite doubts that the district court harbored

about the merits of the plaintiffs' causation theory even before

trial commenced, the plaintiffs were able to present their

arguments to an attentive jury over six weeks. They were

represented by able counsel in every step of the proceeding.

Having had that opportunity but having failed to convince the jury

that an antitrust injury occurred, the plaintiffs cannot now rehash

summary judgment and JMOL rulings, scattered evidentiary

decisions, and unpreserved objections to the verdict form in search

of a do-over.

We affirm.

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