Federal District Court Judge Expected to Rule on Intra-class Conflict Between Payers and Individual Patients in EpiPen MDL

Federal District Court Judge Expected to Rule on Intra-class Conflict Between Payers and Individual Patients in EpiPen MDL

In the multi-district litigation (MDL) against EpiPen manufacturers now underway in the U.S. Court for the District of Kansas, Judge Daniel D. Crabtree now confronts two critical issues common to the EpiPen litigation, the insulin pricing litigation, and other drug pricing class actions currently pending in state and federal courts. The primary issue is a direct conflict between the two plaintiff groups that comprise the joint plaintiff class now proposed by Plaintiffs’ counsel in the EpiPen case: individual patients and third-party payers (including health insurers). Secondary to the issue of conflict are apparent ethical breaches by Plaintiffs’ attorneys who seek to represent individual patients on matters related to the pricing of rebated brand drugs while protecting the conflicting interests of former and current payer clients.

T1DF has been closely interested in the EpiPen litigation because a ruling on this issue of conflict could revive T1DF’s campaign to open a concurrent litigation track against insurers regarding heavily rebated insulin and other diabetes pharmaceuticals. In order to proceed with litigation, T1DF must terminate a tolling agreement signed between the insulin litigation plaintiffs’ counsel and third-party payers. Judge Crabtree has signaled that the question of intra-class conflict brought to the Court’s attention by T1DF in January and June letters may have some merit. T1DF’s policy director Charles Fournier was present at the EpiPen MDL class certification hearing held on June 12 (Phase 2) in Kansas City. At that hearing, Judge Crabtree publicly raised the multi-billion-dollar question: Are insurers and other third-party payers co-victims, with patients, of a rebate-driven scheme to inflate EpiPen prices? Or are payers instead co-conspirators in the wrongful conduct they allege against manufacturer Defendants?

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