Aetna Inc. v. Express Scripts, Inc.

261 F.R.D. 72, 2009 WL 3334751, 2009 U.S. Dist. LEXIS 84975
CourtDistrict Court, E.D. Pennsylvania
DecidedSeptember 16, 2009
DocketNo. 07-5541
StatusPublished
Cited by7 cases

This text of 261 F.R.D. 72 (Aetna Inc. v. Express Scripts, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Inc. v. Express Scripts, Inc., 261 F.R.D. 72, 2009 WL 3334751, 2009 U.S. Dist. LEXIS 84975 (E.D. Pa. 2009).

Opinion

MEMORANDUM OPINION

GOLDBERG, District Judge.

I. Introduction

This case involves allegations that Defendants, Express Scripts, Inc., and their subsidiary, CuraScripts, Inc., tortiously interfered with an agreement termed the “Drug Supply Agreement” (“DSA”), which was entered into between Plaintiffs, Aetna, Inc., et [74]*74al. (“Aetna”)1 and Priority Healthcare Corporation (“Priority”). The purpose of the DSA was to allow Aetna to purchase prescription drugs through Priority, which, due to its favorable position in the pharmaceutical market, was able to obtain “best prices” for specialty pharmaceutical products.

Presently before the Court are two motions filed by Defendants seeking to exclude all, or significant portions of the anticipated trial testimony of Plaintiffs’ damages expert, Robert J. DeLuca. In the first motion, Defendants move to preclude opinions set forth in DeLuca’s errata sheet, submitted after his second deposition, which Defendants argue was improperly prepared. Defendants have also raised a Daubert challenge, claiming that DeLuca’s opinions do not satisfy the reliability prong of Daubert and Fed.R.Civ.P. 702. Additionally, Defendants asserted during oral argument that DeLuea’s errata sheet contains unreliable expert opinions and, thus, should also be excluded under Daubert.

For the reasons set forth below, the Court is not persuaded that DeLuca’s testimony should be excluded and, thus, Defendants’ motions will be denied.

II. Procedural History

In August 2004, Aetna and Priority contracted to create Aetna Specialty Pharmacy (“ASP”) for the purpose of “establishing, building, owning and operating a stand alone integrated specialty pharmacy business.” (Pl.’s Compl., ¶ 18.) Plaintiffs anticipated that partnering with Priority would be advantageous because Priority operated as a pharmacy and distributor of specialty pharmaceutical products and had “increased purchasing power,” which would allow Aetna to obtain “best” or preferential pricing for those products. (Pl.’s Compl, ¶¶20, 29-30.) On October 14, 2005, less than two years after the consummation of the DSA, Defendants acquired Priority and 100% of Priority stock.

Plaintiffs commenced this action for tortious interference of contract on December 31, 2007, primarily alleging that Defendants, a direct competitor of ASP, caused Priority to breach the DSA. According to Plaintiffs, Defendants’ interference and Priority’s violation of the DSA caused excessive monetary losses in that they paid higher prices for various drugs. Plaintiffs retained DeLuca, a C.P.A. with extensive experience in the health care industry, to opine on the approximate amount of these damages. DeLuca essentially reached his conclusions by comparing the price Priority paid, or could have paid, with the price ASP actually paid and then multiplied that price difference by the quantity of drugs ASP purchased. (See generally, November 7, 2008 DeLuca Rept.)

Pursuant to the Honorable Timothy J. Savage’s April 7, 2008 Scheduling Order, all fact discovery was to be completed by October 3, 2008; expert reports and discovery were due on November 7, 2008; rebuttal expert reports were due on November 21, 2008; and expert depositions were to be completed by December 19, 2008. The deadlines for submission of expert reports and depositions as it relates to DeLuca were extended by agreement.

Plaintiffs noticed the deposition of Defendants’ 30(b)(6) witness on June 18, 2008, and Defendants designated Travis Krajco, Manager of Procurement for CuraScript, Inc., as their 30(b)(6) witness. Krajco’s deposition occurred on September 25, 2008, wherein Plaintiffs’ counsel asked Krajco questions in order to understand how to interpret certain sales data produced by Defendants. On November 7, 2008, DeLuca submitted his first expert report and he was subsequently deposed on December 18, 2008. DeLuca submitted a second report (“rebuttal”) on January 30, 2009.

On February 20, 2009, defense counsel sent Plaintiffs’ counsel a nine-page, single-spaced letter, with numerous exhibits, challenging DeLuca’s opinions. Specifically, this correspondence asserted that DeLuca had incorrectly interpreted data previously produced by Defendants, thus rendering his ultimate calculations and opinions incorrect.

[75]*75One week later, DeLuca was deposed a second time and was presented with the February 20, 2009 correspondence, which he had not previously reviewed. Despite strenuous objections from Plaintiffs’ counsel, Defendants proceeded to question DeLuca about the contents of the letter. For instance, defense counsel represented to DeLuca that they had identified “fundamental errors in [his] unit of measure adjustments for two particular drugs” and asked DeLuca whether he would look into potential mistakes in his analysis. (DeLuca Dep., p. 695.) Defense counsel then continued to ask DeLuca substantive and detailed questions regarding his analysis, continually referring to information contained in the February 20, 2009 correspondence. (Id, pp. 695-721.) DeLuca repeatedly responded that his goal was to be as accurate as possible and offered to adjust his analysis to “be as accurate as possible” if the information contained in the February 20, 2009 correspondence was more accurate than the initial information provided to him. (See Id, p. 718.)

Thereafter, on April 10, 2009, DeLuca submitted the four-page errata sheet (with voluminous addenda) which Defendants object to and is central to the issues before the Court. On July 7, 2009, oral argument was held on the propriety of the errata sheet and on several Daubert motions, including the motion pertaining to DeLuca.2

III. DeLuca’s Errata Sheet Is Admissible Under Fed.R.Civ.P. 30(e)

Citing primarily to Tenth Circuit eases, Defendants first argue that DeLuca’s errata sheet is inadmissible because it makes impermissible substantive changes to his deposition testimony. (Def.’s Mot. for Sanctions, pp. 13-14.) These cases frown upon any effort to change answers made by a deponent under oath, likening a deposition transcript to answers to an in-class exam that the student tries to change after receiving a failing grade. See Summerhouse v. HCA Health Servs. of Kansas, 216 F.R.D. 502, 510-11 (D.Kan.2003); Foraker v. Schauer, 2005 WL 6000493 (D.Colo. Sept. 8, 2005).

Both parties acknowledge that other courts are split over whether deponents may use their errata sheets to make substantive changes to testimony. However, the majority rule, as laid out in Wright and Miller, Federal Practice and Procedure, § 2118, and followed by District Courts in this Circuit, is that a deponent may “make changes that contradict the original answers given, even if those changes are not supported by convincing explanations, as long as the deponent complies with the instructions provided within the rule itself for making such changes.” Consulnet Computing, Inc. v. Moore, 2008 WL 5146539, *9 (E.D.Pa., Dec. 5, 2008). See also, Agrizap, Inc. v. Woodstream Corp., 232 F.R.D. 491, 493 n. 2 (E.D.Pa.2006) (noting the majority of federal courts interpret Rule 30(e) to permit deponent to make “any kind of changes.”).

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Bluebook (online)
261 F.R.D. 72, 2009 WL 3334751, 2009 U.S. Dist. LEXIS 84975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-inc-v-express-scripts-inc-paed-2009.