Opinion
MDL NO. 2:18md2836
2022-02-24
IN RE: ZETIA (EZETIMIBE) ANTITRUST LITIGATION
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Report and Recommendation entered by Magistrate Judge Douglas E. Miller on November 1, 2021, ECF No. 1391 ("R&R"), and the Glenmark and Merck Defendants’ ("Defendants") Objections thereto, ECF Nos. 1419 ("Glenmark Objections"), 1423 ("Merck Objections") (Merck and Glenmark Objections, collectively, the "Objections"). For the reasons explained below, the court ADOPTS IN FULL the findings and recommendations set forth in the Magistrate Judge's Report and Recommendation, as supplemented by this Memorandum Order; OVERRULES Defendants’ Objections; DENIES the Motion to Exclude; and GRANTS the Motion for Summary Judgment.
The Merck Defendants ("Merck") consist of Merck & Co., Inc.; Merck Sharp & Dohme Corp.; Schering-Plough Corp.; Schering Corp.; and MSP Singapore Co. LLC. The Glenmark Defendants ("Glenmark") consist of Glenmark Pharmaceuticals, Ltd. and Glenmark Pharmaceuticals Inc., USA, the latter incorrectly identified as Glenmark Generics Inc., USA.
I. BACKGROUND
The court will briefly review the facts and procedural history key to understanding Defendants’ Objections and the court's analysis. On August 10, 2020, Plaintiffs filed a Motion to Exclude the Testimony of Dr. Anupam B. Jena ("Jena"), ECF Nos. 1066, 1070 ("Motion to Exclude"), and a Motion for Partial Summary Judgment Concerning the Relevant Market, ECF Nos. 1077, 1080 ("Motion for Summary Judgment"). Plaintiffs employ these Motions in tandem to prove an essential element of this antitrust case case: the definition of the relevant market. See R&R at 1-3. They collectively move the court to (1) exclude the proposed testimony of Jena, Defendants’ rebuttal expert concerning the relevant market, and (2) find as a matter of law that the relevant market is limited to branded Zetia and its AB-rated generic equivalents. R&R at 1-2, 12. The AB-rated generic equivalents of Zetia share the branded drug's active ingredient: the cholesterol-reducing compound ezetimibe. Id. at 3-4.
The court ADOPTS in full the Magistrate Judge's recitation of the relevant background and need not repeat it here. See R&R at 2-18.
An "AB-rated generic equivalent" is a generic bioequivalent to a branded drug. See R&R at 4.
On November 1, 2021, following a hearing on the Motions, Judge Miller issued the R&R recommending that the undersigned deny the Motion to Exclude and grant the Motion for Summary Judgment. R&R at 2. On November 15, 2021, Defendants separately filed timely Objections to portions of the R&R concerning the Motion for Summary Judgment. ECF Nos. 1419, 1423. Plaintiffs, however, did not object to Judge Miller's recommendation concerning the Motion to Exclude. Having been fully briefed, the Objections and underlying Motions are now ripe for judicial determination.
II. REVIEW AND SUMMARY JUDGMENT STANDARDS
A. Review of Magistrate Judge's R&R
Pursuant to Rule 72 (b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, must make a de novo determination of those portions of the R&R to which the parties have specifically objected. Fed. R. Civ. P. 72(b). For unchallenged portions, the court "must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’ " Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
B. Summary Judgment
Summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Austin v. Clark Equip. Co., 48 F.3d 833, 835-36 (4th. Cir. 1995). "Thus, it is the burden of the moving party to show the court that no material factual issues exist for trial." Id. at 835.
If the moving party carries its burden, the court should grant summary judgment if the nonmoving party has failed to establish, after adequate time for discovery, the existence of an essential element of that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At a minimum, the nonmoving party must present "evidence on which the [trier of fact] could reasonably find" for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must go beyond the facts alleged in the pleadings, and rely instead on affidavits, depositions, or other evidence to show a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ; M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992).
III. MOTION TO EXCLUDE
Judge Miller recommended denying Plaintiffs’ Motion to Exclude Jena's expert testimony, concluding that Plaintiffs’ arguments for exclusion "go to the weight of Jena's testimony and its persuasiveness at trial, or in response to their [Motion for Summary Judgment], not to the admissibility or reliability of his testimony." R&R at 24. Plaintiffs did not object to this recommendation and the court does not find any clear error on the face of the record. Accordingly, the court ADOPTS and APPROVES the Magistrate Judge's conclusion that the Motion to Exclude should be DENIED.
IV. MOTION FOR SUMMARY JUDGMENT
The contested portion of the R&R concerns the Magistrate Judge's recommendation that the undersigned grant the Motion for Summary Judgment. The court will review the jurisprudence concerning the relevant market inquiry before explaining why the court ultimately ADOPTS and APPROVES Judge Miller's recommendation.
A. Defining the Relevant Product Market on Summary Judgment
Antitrust plaintiffs bear the burden of proving the relevant market for assessing the anticompetitive conduct alleged. Satellite Television & Associated Ress., Inc. v. Cont'l Cablevision of Va., Inc., 714 F.2d 351, 355 (4th Cir. 1983). Plaintiffs benefit from proving the narrowest market possible, as allegedly anticompetitive activity is more impactful, and more likely "unreasonable" or indicative of the exercise of monopoly power, in a market with few competitors. See Int'l Wood Processors v. Power Dry, Inc., 792 F.2d 416, 430 (4th Cir. 1986) (noting that "the anticompetitive effect of plaintiff's elimination from [a] larger market necessarily would have been less").
Courts must properly contextualize their assessment, however, as market definition is not an end in and of itself. The purpose of inquiring into the scope of the market "is to determine whether an arrangement has the potential for genuine adverse effects on competition," and "market power ... is but a ‘surrogate for detrimental effects.’ " FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 460-61, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986) (quoting 7 P. Areeda, Antitrust Law ¶ 1511, p. 429 (1986)); Dickson v. Microsoft Corp., 309 F.3d 193, 210 (4th Cir. 2002) (accord). "The market definition has two components - the relevant product market and the relevant geographic market." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 441 (4th Cir. 2011) (citing Consul, Ltd. v. Transco Energy Co., 805 F.2d 490, 493 (4th Cir. 1986) ). In this case, the geographic market is not in issue, as the "parties agree that the appropriate geographic demarcation is the United States and its territories." R&R at 29; ECF No. 1078 at 13-14. Instead, Defendants argue that Plaintiffs have not satisfied their burden on summary judgment to prove the relevant product market. See ECF No. 1419 at 2-5; ECF No. 1423 at 1-3.
Indeed, because the market power inquiry is merely a surrogate, the Supreme Court has explained that " ‘proof of actual detrimental effects, such as a reduction of output,’ can obviate the need for an inquiry into market power ...." Ind. Fed'n of Dentists, 476 U.S. at 460-61, 106 S.Ct. 2009 (quoting 7 P. Areeda, Antitrust Law ¶ 1511, p. 429 (1986)). A "finding of actual, sustained adverse effects on competition" may be "legally sufficient to support a finding that the challenged restraint was unreasonable even in the absence of elaborate market analysis." Id. at 461, 106 S.Ct. 2009. However, the Motion for Summary Judgment addresses the definition of the relevant market, not whether direct proof of actual detrimental effects has obviated the need for Plaintiffs to define the relevant market. See ECF No. 1078 at 1 (noting that Plaintiffs seek summary judgment on "the indirect side" of the market power issue).
The relevant product market is defined by "the ‘extent to which consumers will change their consumption of one product in response to a price change in another, i.e., the "cross-elasticity of demand." ’ " See It's My Party, Inc. v. Live Nation, Inc., 811 F.3d 676, 683 (4th Cir. 2016) (quoting Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) ). Though products need not "be fungible to be considered in the relevant market," United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), "[f]or every product, substitutes exist," and the "relevant market cannot meaningfully encompass that infinite range," Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 612 n.31, 73 S.Ct. 872, 97 L.Ed. 1277 (1953).
When balancing these considerations, "[t]he circle must be drawn narrowly to exclude any other product to which, within reasonable variations in price, only a limited number of buyers will turn; in technical terms, products whose ‘cross-elasticities of demand’ are small." Id. Thus, products which are interchangeable to some degree, but do not share significant cross-elasticity of demand, are not in the same relevant antitrust product market. See id. Despite the unique characteristics of the pharmaceutical market, "cross-elasticity must be demonstrated between [pharmaceutical] products to establish a market definition that includes them." In re Solodyn (Minocycline Hydrochloride) Antitrust Litig. [Solodyn ], No. 14-md-02503, 2018 WL 563144, at *8 (D. Mass. Jan. 25, 2018) (citing United Food & Com. Workers Local 1776 v. Teikoku Pharma USA [Lidoderm ], 296 F. Supp. 3d 1142, 1169-74 (N.D. Cal. 2017) ).
The court must ultimately ascertain "the narrowest market which is wide enough so that products ... from other producers in the same area cannot compete on substantial parity with those included in the market." Int'l Wood Processors, 792 F.2d at 430 (quoting L. Sullivan, Handbook of the Law of Antitrust § 12, at 41 (1977)). Cross-elasticity of demand is the relevant indicator of this ability to compete, and "products whose ‘cross-elasticities of demand’ are small" must be excluded from the relevant market. See Times-Picayune Pub. Co., 345 U.S. at 612 n.31, 73 S.Ct. 872.
Accordingly, a party moving for summary judgment on this issue bears its initial burden by proposing a relevant product market, and demonstrating that the finder of fact must conclude that the proposed market includes the only products sharing the requisite cross-elasticity of demand. Fed. R. Civ. P. 56. The nonmovant may defeat the motion, if it points to evidence that would allow a finder of fact to define the market in some other way. See id. It can do so either by (1) adducing sufficient evidence demonstrating that a reasonable factfinder could conclude that some other product should be included in the relevant market because it exhibits the requisite cross-elasticity of demand, or (2) identifying evidence that would allow the finder of fact to determine that a product in the movant's proposed market lacks sufficient cross-elasticity of demand.
B. Defendants’ Objections
Glenmark objects to the Magistrate Judge's recommendation on the bases that the analysis in the R&R "set[s] forth incorrect legal standards governing the determination of a relevant product market under controlling Supreme Court and Fourth Circuit precedent" and impermissibly weighs the parties’ evidence. ECF No. 1419 at 1. Similarly, Merck contends that Judge Miller "discard[ed] the well-established precedent" explaining "that the existence of market power is almost always a question of fact that should be left for the trier of fact," "ignore[d]" a "significant number of factual disputes" concerning the inclusion of non-ezetimibe drugs in the relevant market, and impermissibly weighed the evidence concerning cross-elasticity of demand between Zetia and non-ezetimibe drugs. See ECF No. 1423 at 1-2.
In this Memorandum Order, reference to "non-ezetimibe drugs" includes all drugs other than Zetia and its AB-rated generic equivalents.
The court has reviewed the record de novo and assessed Defendants’ Objections concerning each stage of the Magistrate Judge's summary judgment analysis. See ECF Nos. 1419, 1423. The discussion is arranged under the three categories identified below. For the reasons explained in the R&R, as supplemented below, the court ADOPTS Judge Miller's recommendation and OVERRULES Defendants’ Objections.
Throughout this discussion, the court describes each objection and aspect of the record referenced by either Defendant as "Defendants’ " objection or evidence. Dissecting which Defendant objected to or referenced a particular aspect of the record is unnecessary, as sustaining any single outcome-determinative objection will inure to the benefit of both Defendants.
1. Plaintiffs’ Initial Burden
Judge Miller found that the record contains sufficient evidence for a reasonable juror to conclude that the relevant market is limited to Zetia and its AB-rated generic equivalents. See R&R at 21. To explain this conclusion, he thoroughly reviewed the ample record evidence supporting Plaintiffs’ Motion for Summary Judgment.
He noted evidence of Merck raising Zetia's wholesale price "repeatedly in the years before generic launch ... without loss in profitability," and closely analyzed the opinions of Dr. Martha A. Starr ("Starr"), one of Plaintiffs’ experts on the market definition issue. R&R at 38-40 (discussing ECF No. 1090-5 (the "Starr Report")). The Starr Report explained the results of several "natural experiments" which all pointed to the same result: a lack of cross-price elasticity between Zetia and any drug other than its AB-rated generics. Id. at 38 (citing Starr Report ¶¶ 82-90). Judge Miller specifically noted that the natural experiments demonstrate "(1) that patients did not switch from other cholesterol-lowering mediations to cheaper ezetimibe when it first became available, and (2) that availability of cheaper generics for other cholesterol-lowering medication ... did not cause patients to switch from more expensive Zetia." Id. He also considered that the two other analytical methods Starr used to assess cross-elasticity pointed to the same conclusion. Id. at 39.
The R&R then explained why Defendants’ critiques of Plaintiffs’ evidentiary support do not preclude relying on it to grant the Motion for Summary Judgment. Id. at 40-44. He ultimately concluded that the Jena Report "does not raise any criticism - singly or in combination - that undermines Plaintiffs’ strong evidence of cross-price elasticity between only Zetia and its AB-rated generic equivalents." Id. at 44 (discussing ECF No. 1091-1 (the "Jena Report")).
Defendants’ critiques go to the weight of admissible evidence, but do not prevent a finding that, as a matter of law, the relevant product market is limited to Zetia and its AB-rated generic equivalents. Defendants do not challenge the admissibility of the evidence supporting this conclusion, and the Magistrate Judge properly relied upon it. See Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 539 (4th Cir. 2015) (rejecting argument that expert reports could not be considered where properly attested to and the proposed testimony would be admissible at trial). Therefore, for the reasons thoroughly explained in the R&R, and upon de novo review, the court OVERRRULES Defendants’ Objections to the extent they challenge Judge Miller's finding that Plaintiffs met their initial burden to demonstrate that no material factual issue on market definition remains.
2. Cross-Price Elasticity as the Determinative Factor
Defendants argue that Judge Miller erred by finding their multi-factorial approach to market definition, based on the considerations announced in Brown Shoe Company v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), insufficient to demonstrate a material factual dispute. See ECF No. 1419 at 18-21; ECF No. 1423 at 8-13. However, for the reasons explained above and in the R&R, the court agrees with Judge Miller's conclusion that cross-price elasticity is the ultimate determinative factor for relevant product market definition. See R&R at 34-38; Times-Picayune Pub. Co., 345 U.S. at 612 n.31, 73 S.Ct. 872 ("products whose ‘cross-elasticities of demand’ are small" must be excluded from the relevant market).
See supra Part IV.A.
That said, the court does not find that indirect evidence of market power based on the Brown Shoe factors is never relevant. It simply holds that where the party moving for summary judgment adduces evidence conclusively demonstrating a lack of cross-price elasticity with drugs outside of its proposed market, the nonmovant must point to evidence creating a factual dispute as to the constraining variable: cross-elasticity of demand. For the reasons explained in the R&R and below, Defendants’ rebuttal evidence would not allow a reasonable juror to conclude that any non-ezetimibe drug exhibited significant cross-elasticity with Zetia. The court, upon de novo review, OVERRULES Defendants’ Objections alleging that a multi-faceted analysis independent of this variable is sufficient to rebut Plaintiffs’ showing.
See infra Part IV.B.3.
3. Inclusion of Non-Ezetimibe Cholesterol-Reducing Drugs
The remaining Objections concern Judge Miller's assessment of Defendants’ evidence and conclusion that they did not demonstrate a genuine factual dispute material to the question of market definition. Judge Miller explained that, though Jena's testimony is admissible under Federal Rule of Evidence 702, "it fails to address cross-price elasticity of demand and is therefore insufficient to create a genuine dispute of material fact regarding the relevant market." See R&R at 21. Accordingly, Judge Miller concluded that Defendants "failed to meet their burden to demonstrate a dispute of material fact sufficient to rebut" Plaintiffs’ showing and recommended granting the Motion for Summary Judgment. Id.
The Magistrate Judge noted that "the target inquiry to define the relevant market in an anti-trust case is not Defendants’ competitive actions but their anti-competitive actions," and concluded that Merck's consideration of non-ezetimibe cholesterol-reducing medications, when pricing Zetia, illustrated only "ordinary competition." See id. at 45. He emphasized that such evidence would only be pertinent to the relevant market inquiry "if the anti-trust conduct alleged ... was alleged to confer monopoly power in" the broader cholesterol-reducing drug market. Id. Judge Miller then explained that Defendants’ evidence of Zetia's therapeutic substitutability, own-price elasticity, and competition for formulary placement with other non-ezetimibe drugs does not "demonstrate[ ] cross-price elasticity with respect to any other product." Id. at 45-46.
Defendants take issue with this characterization. See ECF No. 1419 at 26; ECF No. 1423 at 30. The court reads the R&R's description of "ordinary competition" to simply refer to profit-maximizing activity that does not demonstrate constraints imposed by non-ezetimibe drug pricing. A showing of cross-price elasticity with non-ezetimibe drugs would have sufficed to defeat the Motion for Summary Judgment whether or not one categorized the supporting evidence as demonstrating "ordinary competition," in the colloquial sense. Defendants did not make this showing.
The court agrees that therapeutic substitutability cannot replace the showing of cross-price elasticity key to defining the relevant product market. See id. at 46-47. As noted in the R&R, Starr's natural experiments illustrated that non-ezetimibe cholesterol-reducing drugs did not "constrain[ ] Zetia pricing above the competitive level," and "Jena's report provides no empirical data to suggest that they did." Id. at 47. Judge Miller further reasoned that Jena's own-price elasticity study "fails to prove cross-price elasticity because it is simply not the same measurement." Id. He explained that the study "has no inputs for non-Zetia drugs" and that own-price elasticity "cannot help the fact finder determine market power ‘when market power is already being exercised’ because supracompetitive prices are frequently sensitive to price increases." Id. (quoting ECF No. 1091-12 at 44 (¶ 77) (the "Starr Rebuttal")). The court agrees with this reasoning.
The R&R further notes that "Defendants place great weight on formulary placement," and explains that such evidence is "not determinative" of market definition. Id. The R&R concluded that Merck's competition for preferred formulary placement "is an example of Merck (not the market) constraining Zetia's pricing," and "[a]t most" demonstrates "ordinary competitive positioning." Id. at 48. Ultimately, Judge Miller reasoned that Jena's alternative models failed to directly address cross-elasticity of demand because they did not examine how Merck's rebate programs and generic ezetimibe's launch impacted the rate of new Zetia prescriptions. See id. at 49-50. For these reasons, Judge Miller concluded that "Defendants’ evidence fails to create any dispute of material fact to overcome Plaintiffs’ proof that the relevant market should be limited to Zetia and its AB-rated generic equivalents." Id. at 51.
Defendants disagree with this conclusion, arguing that their evidence shows that a jury should decide whether non-ezetimibe drugs, such as "the high-intensity statins Lipitor and Crestor," should be included in the relevant market. See ECF No. 1423 at 13; ECF No. 1419 at 25-28. However, the court concludes that Defendants’ evidence fails to demonstrate the requisite cross-price elasticity required to include any drug other than Zetia and its AB-rated generic equivalents in the relevant market. See Solodyn, 2018 WL 563144, at *8 ("cross-elasticity must be demonstrated between [pharmaceutical] products to establish a market definition that includes them").
In support of their position, Defendants point to evidence of therapeutic substitutability between Zetia and non-ezetimibe cholesterol-reducing drugs. See, e.g., ECF No. 1419 at 8-9 (discussing clinical and economic substitutability); ECF No. 1423 at 8-13 (discussing Brown Shoe factors). However, Plaintiffs successfully demonstrated that non-ezetimibe drugs exhibited insignificant cross-price elasticity with Zetia. See, e.g., Starr Report ¶¶ 74-103. Defendants’ evidence fails to meet this showing, as evidence of Merck's competitive activity generally, and Zetia's substitutability with non-ezetimibe drugs in certain circumstances, does not address whether non-ezetimibe drugs constrained Merck's ability to raise prices above the competitive level. See It's My Party, Inc., 811 F.3d at 683 (relevant market defined by "the ‘extent to which consumers will change their consumption of one product in response to a price change in another...."); see also Lidoderm, 296 F. Supp. 3d at 1172 (noting that "something more than mere therapeutic equivalency is required to define the relevant antitrust product market," and that "[t]here must be some showing of cross-elasticity").
Moreover, cross-price elasticity "is a measure of reasonable interchangeability," that gauges "the substitutability of products from the point of view of buyers." See Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 438 n.6 (3d. Cir. 1997) (emphasis added) (quoting E. Thomas Sullivan & Jeffrey L. Harrison, Understanding Antitrust and its Economic Implications 217 (1994)). Defendants’ evidence concerning Merck's discounting of Zetia and competition for formulary placement demonstrates how Merck viewed the market for cholesterol-reducing medication, but does not address how consumers viewed Zetia's substitutability. See Lidoderm, 296 F. Supp. 3d at 1174 (drug manufacturer's evidence "that physicians and [managed care organizations] were concerned about the ‘high’ price of [a drug] and prescribed more or made more available where prices were lower or significant rebates were provided does not mean that the other products on the market" for treatment of the same and similar conditions "constrained the price of [the drug]"). On this record, without some evidence of a non-ezetimibe drug's capacity to significantly constrain Zetia Pricing, no reasonable jury could conclude that any drug had such capacity. See id. (granting summary judgment on relevant product market where defendants’ evidence was "insufficient to raise a material question of fact on whether the availability of [other] drugs constrained the price charged" for the brand drug at issue).
For these reasons, upon de novo review, the court finds that Judge Miller did not impermissibly weigh the parties’ evidence and determine that he preferred one party's over the other's, as Defendants allege. See ECF No. 1419 at 1; ECF No. 1423 at 1-2. Instead, he assessed Defendants’ rebuttal in context, and analyzed whether it met Plaintiffs’ evidence demonstrating that no material factual dispute existed concerning the proposed relevant market. This inquiry comported with Rule 56 and the jurisprudence interpreting that Rule. At bottom, the evidence simply does not "present[ ] a sufficient disagreement to require submission to a jury," but instead "is so one-sided" that Plaintiffs must prevail on the market definition issue as a matter of law. See Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
V. CONCLUSION
Following a de novo review of the record and the Objections to the R&R, the court ADOPTS IN FULL the findings and recommendations set forth in the Magistrate Judge's thorough and well-reasoned Report and Recommendation, ECF No. 1391, filed on November 1, 2021, as supplemented by this Memorandum Order. Adopting Defendants’ overinclusive view of the market definition analysis would dilute the safeguards for competition and the consumer-protection purpose of antitrust law in many pharmaceutical drug cases, and particularly in this case. Simply put, on this record, no reasonable juror could remain faithful to controlling precedent and cast the relevant market as broadly as Defendants suggest. Stretching the ambit to include non-ezetimibe drugs would blunt the procompetitive purpose of antitrust law and render the market power analysis inconsequential.
Therefore, the court OVERRULES Defendants’ Objections, ECF Nos. 1419, 1423, DENIES the Motion to Exclude, ECF Nos. 1066, 1070, and GRANTS Plaintiffs’ Motion for Summary Judgment, ECF Nos. 1077, 1080.