Antitrust Law Daily Wrap Up, TOP STORY—E.D. Pa.: Expert’s methodologies support class certification of blood reagent purchasers, (Oct 20, 2015)

By Jeffrey May, J.D.

Thousands of individuals and entities that purchased traditional blood reagents in the United States directly from two leading producers—Immucor, Inc., and Ortho-Clinical Diagnostics, Inc.—since November 4, 2000 have been certified to proceed as a class with price fixing claims against the firms. Rejecting challenges to the plaintiffs’ proposed methodologies for determining antitrust impact and calculating class-wide damages, the federal district court in Philadelphia recertified the class, which had been vacated by the Third Circuit in light of the U.S. Supreme Court's 2013 decision in Comcast Corp. v. Behrend (In Re: Blood Reagents Antitrust Litigation, October 19, 2015, DuBois, J.).

Complaining blood donor centers and hospitals use blood reagents to test whether the blood of a potential donor is compatible with the blood of a potential recipient. Following consolidation in the industry in the 1990s, Immucor and Ortho gained a duopoly in the traditional blood reagents (TBR) market. According to the plaintiffs, these duopolists entered into a conspiracy to fix prices at an American Association of Blood Banks (AABB) meeting in November 2000 in Washington, D.C.

The plaintiffs reached a settlement with Immucor and a class was initially certified in 2012. However, the class certification order was vacated by the U.S. Court of Appeals in Philadelphia in 2015, and the case was remanded. Following the initial class certification order, the Supreme Court issued its decision in Comcast Corp. v. Behrend. In Comcast, the High Court reversed a Third Circuit decision that the lower court had relied upon. In light of Comcast, the Third Circuit panel concluded that greater scrutiny of the expert testimony was required at the class certification stage.

Expert testimony. The court considered Ortho's Daubert challenges to the admissibility of the plaintiffs' expert's methodologies in light of the Third Circuit’s mandate. The expert utilized a benchmark model to estimate the pricing that would have occurred in a lawful duopoly and concluded that any differences between those estimated prices and the actual prices charged by defendants were the result of the alleged conspiracy. The court ruled that the expert reliably estimated the alleged overcharge and that his methodologies fit the facts of the case.

Recertification. The court concluded that the plaintiffs established all of the requirements of Federal Rule of Civil Procedure 23(a) and Rule 23(b) (3) for class certification by a preponderance of the evidence. However, the court focused primarily on predominance under Rule 23(b)(3) because that was the only certification requirement contested by Ortho. Based on their expert's methodologies, the plaintiffs showed by a preponderance of the evidence that they would be able to demonstrate antitrust impact using predominantly common proof. Moreover, the court noted that the plaintiffs had set forth a single horizontal price fixing conspiracy theory of liability from the outset of the litigation, and their expert’s damages methodologies matched the theory of liability.

The court exercised its discretion to amend the class definition to reflect the alleged start date of the conspiracy as November 4, 2000, the first day of the AABB meeting, even though the complaint had alleged that the conspiracy began “at least as early as January 1, 2000.” The plaintiff's expert chose the start date of the alleged conspiracy during November 2000. Although Ortho challenged the expert's use of a conspiracy start date that was later than the start date alleged in the complaint, the court concluded that the later start date was no basis for rejecting the expert's methodologies.

The case is No. 2:09-md-02081-JD.

Attorneys: Eugene A. Spector (Spector Roseman Kodroff & Willis, P.C.) for the class plaintiffs.

Companies: Immucor, Inc.; Ortho-Clinical Diagnostics, Inc.

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