Zoladex® suppresses sex hormones.
AstraZeneca told people it got an average wholesale price of $X for its Zoladex® drug when it in fact received a far lower AWP due to discounts and rebates. The falsely high AWP let Zoladex® fetch more money per dose, enriching doctors who charged the AWP but got discounts and rebates that cut their actual cost by a large margin.
What to do? If you paid more than you should have, you bring a class action. You allege that AstraZeneca cheated Massachusetts payors and thus ran afoul of the Commonwealth's General Laws Chapter 93A. And, by golly, you win at trial.
The First Circuit yesterday affirmed in all respects. The court deemed AstraZeneca's conduct wrongful under Chapter 93A because it fooled payors into shelling out more than they would have if they'd known and expected a big spread between the public AWP and the AWP after the rebates and cuts. Their Honors also rejected AZ's preemption and Daubert forays. Blue Cross Blue Shield of Massachusetts v. AstraZeneca Pharmaceuticals LP, No. 08-1056 (1st Cir. Sept. 23, 2009).*
But the part that got Blawgletter's blood pumping related to AstraZeneca's attack on the class aspects of the case. The trial court, AZ argued, should've let the drug-maker show that some class members didn't care and would've paid the same price even if they knew the size of the spread — which manner of trying the case would've put a big strain on class treatment. AZ also said the trial court shouldn't have let the plaintiffs show "aggregate damages" of around $13 million. The First Circuit nixed both points.
On the first one, the panel said that "it would quickly undermine the class-action mechanism were we to find that a district court presiding over a class action lawsuit errs every time it allows for proof in the aggregate." Id. As for the second point, the court noted that "[t]he use of aggregate damages calculations is well established in federal court and implied by the very existence of the class action mechanism itself." Id. "[T]he imprecision, if any, [in toting up class-wide damages] was negligible." Id.
___________________________________
* Note that the First Circuit does two things that make its opinions hard to get to online: It doesn't use pages (just a stream of html); and it doesn't give each opinion its own URL, making direct access by hyperlink impossible.