Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Generic drug manufacturers denied damages motion in price-fixing case, (Aug 20, 2026)

By Sara Cracau, J.D.

The defendants unsuccessfully sought to exclude evidence Humana plans to present in the bellwether trial.

The federal district court in Philadelphia has denied joint motions for summary judgment of generic drug manufacturers pertaining to damages in the multidistrict litigation’s (“MDL’s”) bellwether trial involving Plaintiff Humana Inc. and several defendants (together “Humana”), several of whom jointly moved for summary judgment have settled with Humana. The court denied all four of the summary judgment rulings sought by the defendants: (1) a 50.8% reduction in Humana’s indirect volume of commerce (“VOC”) for the Drugs at Issue to exclude the full and unrebutted amount of the government’s Medicare Part D payments calculated by Defendant’s expert, Dr. Chandra; (2) a $360 million set off of any damages award to reflect the full amount of Humana’s 2024 recovery from Walgreens; (3) at least an 8.5% reduction in Humana’s indirect VOC to exclude transactions for which no overcharge was suffered; and (4) at least a 28.4% reduction in Humana’s indirect VOC to remove the amount of its double-counted direct commerce (In Re: Generic Pharmaceuticals Pricing Antitrust Litigation, No. 2:18-cv-03299-CMR (E.D. Pa. Aug. 19, 2026)).

Background. Humana Inc.’s lawsuit is part of multidistrict litigation in the Eastern District of Pennsylvania alleging that generic drug manufacturers conspired to fix prices and allocate markets. Filed in August 2018 and later amended to assert federal and state antitrust claims involving numerous generic drugs, the case has been selected as the MDL’s initial bellwether trial. Human’s motion for summary judgment on damages seeks four distinct rulings requiring exclusion of evidence which Humana sought to present on damages and pre-trial rulings on offsets from Humana’s damages stemming from reimbursement or success in unrelated litigation against another company.

50.8% reduction in Humana’s indirect VOC. In denying this motion, the court noted that it previously ruled on the motions to exclude the testimony of two experts, noting that Dr. Frank would not be permitted to testify about any of his findings and conclusions regarding Medicare Part D reimbursements where he offered legal opinions and the ruling also barred either party from offering evidence at trial that showed that the government paid for or funded Humana’s Part D purchases. The court said that it would assess adjustments for government payments for Medicare Part D purchases, if required, after the jury’s determination. The court previously determined in a summary judgment opinion that a plaintiff class was not required to account for how and whether their damages were reduced or mitigated by the actions of a third party in order to support the harm caused by the defendants. Here, the generic drug manufacturers based their request for a 50.8 percent reduction in Humana’s volume of commerce (VOC) for certain drugs listed in a report which Humana subsequently indicated was not current. Therefore, the court could not grant summary judgment on the basis of out-of-date information.

$360,000,000 set-off due to Humana’s settlement of a claim against pharmacy. The court denied the generic manufacturers’ motion for summary judgment relating to their demand for a $360,000,000 set-off against Humana’s settlement against a pharmacy finding that they failed to explain how anything in the arbitration award absolved them, in part or full, of responsibility for the damages Humana claimed that it incurred. They did not demonstrate how ay money Humana received from Walgreens required partial summary judgment. Their argument had been based on the premise that Humana bore the burden of calculating any set-off required by the 360,000,000 recovery but Humana argued that any set-off, if required, was a matter for the post-verdict stage.

Differing opinions on calculating damages resulting from sales to CVS. The court found that any differing opinions on how to calculate damages, if any, resulting from sales to CVS was a matter of how different experts who will testify at trial will calculate the damages, and, therefore, was not appropriate for summary judgment.

The generic drug manufacturers contended that Humana sought damages for sales that did not result in overcharges. They claimed, based on an expert’s rebuttal report, that Mylan did not increase the price of Clomipramine to CVS, and, that, therefore, Humana did not suffer damage as a result of any reimbursements or other payments made due to such sales. The expert’s conclusion regarding Mylan was based on a 2025 opinion rendered by the court in class actions in the MDL involving direct payor plaintiffs (DPPs) and End-Payor Plaintiffs (EPPs) against several parties, including Mylan. The court noted that neither class against whom the court considered summary judgment regarding the Clomipramine sales to CVS included Humana, which opted out of both the DPP and EPP classes by filing its own lawsuit against the generic drug manufacturers.

The court, based on collateral estoppel rules, noted that it had no basis for determining whether a ruling in another case applied to Humana’s transactions with CVS involving Mylan-supplied clomipramine. As Humana was not a party to the court’s 2025 ruling, that ruling and judgment did not bind Humana. Furthermore, the court noted that the generic drug manufacturers mischaracterized Humana’s position that it did not dispute that CVS did not suffer overcharges for Clomipramine. Humana had not taken a position on whether CVS suffered overcharges on Mylan’s Clomipramine but rather it disagreed that any reduction in damages was warranted at summary judgment. The generic drug manufacturers may cross-examine the expert on his calculations. As the court did not exclude such expert’s report, the court denied the generic drug manufacturers’ motion for partial summary judgment.

28.4% reduction in Humana’s VOC due to double-counted direct coverage. The court found that the generic drug manufacturers were not entitled to a 28.4% reduction in Humana’s VOC due to double-counted direct coverage. The generic drug manufacturers claimed that Humana was seeking damages on both purchases by its pharmacy and indirect commerce damages that were sustained by subsidiaries that purchased drugs from Humana. Furthermore, Humana claimed and provided supporting evidence for its claim that it was pursuing the indirect commerce claims on behalf of its subsidiaries, not itself, who had assigned their claims to it, and such subsidiaries were separate legal entities that were entitled on their own to recover indirect damages, as permitted by state law. Nonetheless, the generic drug manufacturers sought a ruling to remove Humana’s indirect commerce claims, which an expert opined constituted 28.4% of Humana’s potential direct commerce claims recovery.

The court rejected the cases relied on by the generic drug manufacturers to support their claim that a 28.4% reduction is required as these did not involve assignments of indirect purchaser claims. The generic drug manufacturers did not challenge the authenticity of the assignments nor the authenticity of the corporate structure which Humana described. Therefore, the court denied the generic manufacturers’ motion to dismiss the indirect purchaser claims.

The Case is No. 2:18-cv-03299-CMR.

Judge: Rufe, C.

Attorneys: James Caleigh Macdonald (Schneider Wallace Cottrell Kim LLP) for Humana Inc. Sheron Korpus (Kasowitz LLP) for Actavis Elizabeth, LLC.

Companies: Humana Inc.; Actavis Elizabeth, LLC

Cases: Antitrust PennsylvaniaNews