Mylan secretly maneuvered to suppress evidence in EpiPen suit, plaintiffs say

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Plaintiffs allege Mylan violated discovery rules in asking vendors to withhold certain documents. (Pixabay)

Mylan and Pfizer are fighting a lawsuit alleging the companies engaged in a vast, illegal scheme to boost sales for EpiPen. But plaintiffs say Mylan “surreptitiously” reached out to vendors and forced them not to release certain documents.

In a motion filed this week, plaintiffs say Mylan contacted vendors that were under subpoena and “segregated out … documents Mylan believed to be ‘privileged.’” The vendors provided “marketing, promotion, contracting, pricing or business strategy services” for the company, the filing says.

The plaintiffs say they only found out after noticing a missing document and asking one of the vendors, who said Mylan had asked for it to be withheld. The plaintiffs then contacted Mylan; attorneys for the drugmaker responded that the vendors had the right to determine which documents to submit and which to hold back.

Later, Mylan “changed its tune,” according to the filing. Attorneys for the drugmaker now say that Mylan “reserves all rights” to protect confidential information, the plaintiffs say in the filing. A Mylan representative declined to comment.

The plaintiffs are requesting a court order stating that Mylan has “waived any claim of privilege” over the vendors’ documents. The attorneys also want the company to “provide full details of all” documents affected and for the company to reimburse certain attorney fees.

The plaintiffs—an employee health plan and consumers—filed their amended lawsuit last October, accusing Mylan and Pfizer of engaging in a far-ranging scheme to boost EpiPen sales. Pfizer manufacturers the lifesaving injectors for Mylan to sell under a partnership.

In their 400-page lawsuit, they say Mylan paid pharmacy benefit managers to freeze out competition and that both companies used the courts—and abused regulatory processes—to protect the epinephrine injector. They allege Mylan rolled out EpiPen two-packs and stopped selling them in singles, forcing buyers to switch—and pay more—with no medical rationale. They further cite the well-known and dramatic price hikes Mylan engineered over several years.

The defendants recently persuaded a judge to dismiss some of the allegations. All told, the lawsuit alleges violations of antitrust and consumer protection laws and the Racketeer Influenced and Corrupt Organizations Act. Representatives for the companies said the claims are “without merit” and that the companies will defend against them “vigorously.” The allegations remain unproven, they stressed.

The FDA recently approved the first generic EpiPen from Teva Pharmaceutical Industries, which should provide some price relief for consumers.