J.E. Pierce Apothecary v. Harvard Pilgrim Health

365 F.Supp.2d 119

J.E. PIERCE APOTHECARY, INC., Sutherland Pharmacy, Inc., and Medfield Pharmacy, Inc. and Meetinghouse Community Pharmacy, Inc. on behalf of itself and a class of similarly situated entities Plaintiffs, v. HARVARD PILGRIM HEALTH CARE, INC., Health New England, Inc., CVS Corporation, PharmaCare Management Services, Inc. Defendants.

No. CIV.A.98-12635-WGY.

United States District Court, D. Massachusetts.

March 31, 2005.

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David A.P. Brower, Milberg Weiss Bershad & Schulman LLP, New York City, NY, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Jeffrey D. Clements, Clements & Clements LLP, Boston, for PharmaCare Management Services, Inc., CVS Corporation, Defendants.

William M. Cowan, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, for CVS Corporation, Defendant.

Steven M. Cowley, Edwards & Angell, LLP, Boston, for PharmaCare Management Services, Inc., Defendant.

Alan P. Danovitch, Boston, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Francis D. Dibble, Jr., Bulkley, Richardson & Gelinas, Springfield, for Health New England, Inc., Defendant.

Ruth T. Dowling, Palmer & Dodge, LLP, Boston, for Harvard Pilgrim, Defendant.

Madeleine A. Estabrook, Edwards & Angell, LLP, Boston, for PharmaCare Management Services, Inc., Defendant.

Michael S. Gardener, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, for CVS Corporation, PharmaCare Management Services, Inc., Defendants.

John C. Kane, Ropes & Gray LLP, Boston, for Harvard Pilgrim, Defendant.

Alan L. Kovacs, Law Office of Alan L. Kovacs, Boston, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Elaine S. Kusel, Milberg, Weiss, Bershad Specthrie & Lerach, New York, NY, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Kevin M. McGinty, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, for PharmaCare Management Services, Inc., CVS Corporation, Defendants.

Andrew Nathanson, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, for CVS Corporation, Defendant.

William L. Patton, Ropes & Gray, LLP, Boston, for Harvard Pilgrim, Defendant.

Albert Powell, Milberg, Weiss, Bershad & Schulman, New York, NY, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Eugene R. Richard, Wayne, Richard & Hurwitz, LLP, Boston, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Katherine A. Robertson, Bulkley, Richardson & Gelinas, Springfield, for Health New England, Inc., Defendant.

Thane D. Scott, Palmer & Dodge, LLP, Boston, for Harvard Pilgrim, Defendant.

J. Michael Scully, Bulkley, Richardson & Gelinas, Springfield, for Health New England, Inc., Defendant.

Bruce D. Sokler, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Washington, DC, for PharmaCare Management Services, Inc., CVS Corporation, Defendants.

Howard Wayne, Wayne, Richard, & Hurwitz, Boston, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Barry A. Weprin, Milberg, Weiss, Bershad & Schulman LLP, New York, NY, for J.E. Pierce Apothecary, Inc., Medfield Pharmacy, Inc., Meetinghouse Community Pharmacy, Inc., Sutherland Pharmacy, Inc., Plaintiffs.

Jane E. Willis, Ropes & Gray, Boston, for Harvard Pilgrim, Defendant.

MEMORANDUM AND ORDER

"If everybody keeps doing what they're doing, we will probably never get our arms around the medical expense trend."

Charles Baker, CEO Harvard Pilgrim Healthcare, Inc., March 11, 2005¹

YOUNG, Chief Judge.

We Americans spend $200,000,000,000.00 on prescription drugs per year. David S. Nalven, Prescription Drug Litigation: Seeking Reform through the Courts, 49 Boston Bar J., Jan./Feb.2005, 18 (2005). As a result, courts are seeing a rise in cases challenging the pharmaceutical industry's practices in the pricing, development, and mass marketing of pharmaceuticals.² Id. This case, however, arises from equally important activities further down the pharmaceutical distribution chain. Pharmacies, insurance companies, and other organizations concerned with providing medical care must necessarily balance quality and cost to the consumers and still remain profitable in order to ensure sustainability. Moreover, the government and the market interact in balancing oft competing needs, implicating in turn the tension between totally free markets and concerns for fair and open dealing in markets between actors with vastly disparate bargaining power.

I. PRIOR PROCEEDINGS

J.E. Pierce Apothecary, Inc. ("J.E.Pierce"), Sutherland Pharmacy, Inc. ("Sutherland Pharmacy"), Meetinghouse Community Pharmacy, Inc. ("Meetinghouse Pharmacy"), and Medfield Pharmacy, Inc. ("Medfield Pharmacy") (collectively, "the Independent Pharmacies") filed this case on behalf of themselves and other similarly situated entities on December 30, 1998, against Harvard Pilgrim Health Care, Inc. ("Harvard Pilgrim"), CVS Corporation ("CVS"), and PharmaCare Management Services, Inc. ("PharmaCare")(collectively, "the Defendants").³ In their complaint, they allege that the Defendants violated Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, the Massachusetts Any Willing Provider Law, Mass. Gen. Laws ch. 176D § 3B, and the Regulation of Business Practice and Consumer Protection Act, Mass. Gen. Laws ch. 93A, § 11. Compl. [Doc. No. 1].

In March 2000, the Court dismissed the claim under the Any Willing Provider Law, since it did not give rise to a private cause of action, Order on Defs.' Joint Mot. to Dismiss, March 6, 2000 [Doc. No. 36], but allowed the Independent Pharmacies to pursue the class claim pursuant to Mass. Gen. Laws chapter 93A, § 11. Id. The litigation was stayed for a limited time in 2000 while Harvard Pilgrim was in receivership. After the litigation resumed, the parties conducted discovery on the issue of class certification. Defs.' Mem. in Supp. of Summ. J. at 6 [Doc. No. 160] ("Defs.' Mem.").

The Court certified a class pursuant to Fed.R.Civ.P. 23(b)(3) on September 30, 2002, defining that class as:

All Massachusetts pharmacies other than defendant CVS, which operate within the geographic market serviced by defendant Harvard Pilgrim, and which, from March 17, 1998 through present, have been a party, along with defendant PharmaCare, to a Managed Care Pharmacy Participation Agreement related to the provision of prescription drugs to Harvard Pilgrim Subscribers from and after March 17, 1998.

Order on Class Certification⁴ ¶ 2 [Doc. No. 106].

In so certifying, the Court rejected class claims relating to the restricted pharmacy network prior to March 17, 1998, as well as claims against Health New England, Inc. ("Health New England"). See id. Following the certification, the parties conducted discovery on the merits of the claim. Defs.' Mem. at 6.

On February 5, 2003, the parties stipulated to the dismissal of claims against Health New England, as there was no plaintiff within the class in the area serviced by Health New England. Stipulation of Dismissal [Doc. No. 110].

Upon the completion of discovery, both sides moved for summary judgment. Following a scheduling conference held on July 29, 2004, both sides agreed to treat their cross motions for summary judgment as a "case-stated." Joint Mot. for Order to Authorize a Case Stated [Doc. No. 188].

On August 25, 2004, in light of recent case law, the Court dismissed the Antitrust Claim without prejudice to any member of the class (other than the named plaintiffs). Electronic Order of Aug. 25, 2004. Thus, the only remaining claim alleges that the Defendants violated the Any Willing Provider Law, thereby violating Mass. Gen. Laws chapter 93A § 11, in the design and implementation of the Harvard Pilgrim pharmacy network.

In agreeing to treat the issue as a "case stated," the parties have agreed that the record presently before the Court constitutes the entire evidentiary record and the Court may draw reasonable inferences therefrom in applying the law. This practical procedural vehicle is expressly approved by the First Circuit, Continental Grain Co. v. Puerto Rico Mar. Shipping Auth., 972 F.2d 426, 429 n. 7 (1st Cir.1992) (observing that the submission of a matter to the court as a case stated promotes judicial efficiency); Boston Five Cents Sav. Bank v. Secretary of Dep't of Hous. & Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985) (Breyer, J.), and is frequently utilized by this Court upon the parties' consent. See Radford Trust v. First Unum Life Ins. Co. of Am., 321 F.Supp.2d 226 (D.Mass.2004); Cosme v. Salvation Army, 284 F.Supp.2d 229 (D.Mass.2003); Rymes Heating Oils, Inc. v. Springfield Terminal Ry., Inc., 265 F.Supp.2d 147 (D.Mass.2003); Laurenzano v. Blue Cross & Blue Shield of Mass., Inc., 191 F.Supp.2d 223 (D.Mass.2002); Watson v. Deaconess Waltham Hosp., 141 F.Supp.2d 145 (D.Mass.2001); Stein v. United States, 135 F.Supp.2d 265 (D.Mass.2001); Cabral v. St. Paul Fire & Marine Ins. Co., 59 F.Supp.2d 190 (D.Mass.1999); United Cos. Lending Corp. v. Sargeant, 20 F.Supp.2d 192 (D.Mass.1998); Williams v. Hanover Hous. Auth., 871 F.Supp. 527 (D.Mass.1994).

This Court afforded the parties extended oral argument on October 20, 2004, Tr. of Hr'g of Oct. 20, 2004 [Doc. No. 201], and took the case under advisement.

II. FINDINGS OF FACT

The facts in this case can be found in several documents: (i) Defs.' Statement of Undisputed Material Facts [Doc. No. 150] ("Defs.' 56.1 Stmt."); (ii) Pls.' response thereto [Doc. No. 174] ("Pls.' 56.1 Resp."); (iii) Pls...