govinfo:USCOURTS-njd-2_12-cv-00995-5

Not for Publication 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
In re: Lamictal Direct Purchaser Antitrust 
Litigation 
 
 
  
 
Civil Action No. 12-995
 
 
OPINION & ORDER 
 
John Michael Vazquez, U.S.D.J. 
 This antitrust class action invol ves the allegedly artif icially inflated pricing of the brand 
drug Lamictal, manufactured  by Defendant SmithKline Beecham Corporation d/b/a 
GlaxoSmithKline (“GSK”), and its generic competitor lamotrigine, manufactured by Defendants 
Teva Pharmaceutical Industries LTD and its subsidiary Teva Pharmaceuticals USA, Inc. 
(collectively “Teva”).  Presently before the Court is a request for leave to file a supplemental expert 
report submitted by the Direct Purchaser Class Plai ntiffs (“Plaintiffs”).  D.E. 516.  Defendants 
filed a brief in opposition, D.E. 518, Plaintiffs filed a reply, D.E. 521, and with leave of the court, 
Defendants filed a sur-reply, D.E. 524.  The Court reviewed the parties’ submissions
1 and decided 
the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b).  For the 
reasons set forth below, Plainti ffs’ request for leave to file a supplemental expert report is 
DENIED.   
I. BACKGROUND  
The complete factual background is described in the Court’s April 9, 2021 Opinion denying 
class certification as to the purchasers of lamotrigine, which is hereby incorporated into this 
 
1 Plaintiffs’ brief requesting leave to file a supplemental expert report, D.E. 516 (“Br.”); 
Defendants’ brief in opposition, D.E. 518 (“Opp.”) ; Plaintiffs’ reply brief, D.E. 521 (“Reply”); 
and Defendants sur-reply, D.E. 524.  
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Opinion.  In short, GSK and Teva were involve d in a patent lawsuit over GSK’s brand drug, 
Lamictal, and Teva’s generic vers ion of the drug, lamotrigine.  D.E. 55 (“Compl.”) ¶ 13.  GSK 
and Teva reached a settlement wh ich involved GSK promising to refrain from launching its own 
competing authorized generic version of Lamictal (the “No-AG Promise”) until Lamictal’s patent 
for lamotrigine expired.  D.E. 373-3 at 2; D.E. 37 3-4 at 16.  Plaintiffs in  the present action claim 
that absent the No-AG Promise, Teva’s generic drug would have faced pricing competition from 
GSK’s authorized generic drug.  Compl. ¶ 28.  Th us, Plaintiffs conclude, the lack of competition 
that resulted from the No-AG Promise forced Plaintiffs to purchase both Lamictal and lamotrigine 
at artificially inflated prices.  Id.  Defendants argue that Plaintiffs were not harmed because GSK 
lowered the prices of Lamicta l through a contracting strategy, and Teva, upon learning of this 
contracting strategy, preemptively lowered the price of lamotrigine.   
On June 28, 2018, Plaintiffs moved to certify the following class:  
All persons or entities in the United States and its territories who 
purchased Lamictal Tablets directly from GSK, or who purchased a 
generic version of lamotrigine ta blets directly from Teva, at any 
time during the Class Period fro m February 17, 2008 until January 
22, 2009.   
 
D.E. 372 at 3.  Following briefing on the issue, J udge Walls certified the class.  D.E. 428, D.E. 
429.  Defendants appealed, challenging only the cer tification of class members who purchased 
generic lamotrigine from Teva (“Generic-Only Purchasers”).  In re Lamictal Direct Purchaser 
Antitrust Litig., 957 F.3d 184, 190 (3d Cir. 2020).  Defendants did not challenge class certification 
as to the 32 direct purchasers of brand Lamictal.  The Third Circuit vacated Judge Walls’s decision 
and remanded with instructions to perform a rigorous analysis in determining whether to certify 
the class of Generic-Only Purchasers.  Id. at 195.  On remand, the Court found that Plaintiffs had 
not shown by a preponderance of the evidence th at they could prove antitrust injury through 
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common evidence as to the Generic-Only Purchase rs and thus denied class certification of this 
group.  D.E. 502.   
Following the Court’s decision, Plaintiffs reque sted leave to file a supplemental expert 
report from their expert economist Dr. Russell Lamb  in support of a revise d, smaller class “that 
includes at least 40 members: (a) all 32 direct purchasers of brand Lamictal…and (b) at least eight 
generic-only purchasers – the eight that Defendants have not claimed were uninjured.”  Br. at 1 
(emphasis in original).   
II. STANDARD OF REVIEW 
Federal Rule of Civil Procedure 26(e) imposes  a duty to supplement or correct an expert 
report if a party learns that information included in the report “in some material respect…is 
incomplete or incorrect, and if the additional or corrective information has not otherwise been 
made known to the other parties during the discovery process or in writing.”  Fed. R. Civ. P. 26(e).  
“[S]upplementation is proper only for the narrow purpose of correcting inaccuracies or adding 
information that was not available at the time of the initial report.”  Ezaki Glico Kabushiki Kaisha 
v. Lotte Int’l Am. Corp., No. Civ. A. No. 15-5477, 2019 WL 581544, at *3 (D.N.J. Feb. 13, 2019) 
(internal quotation omitted).  Cour ts have interpreted Rule 26(e)  to permit supplementation in 
instances such as when an e xpert receives newly produced info rmation or discovers numerical 
errors in her calculations after submitting her expert report.  See id.  However, supplementation 
should not be allowed “to correct failures of omis sion because the expert did an inadequate or 
incomplete preparation, add new opinions, or deepen or strengthen existing opinions.”  Id. (internal 
quotation omitted).  Rule 26(e) is not intended to benefit the party with the duty to disclose; “[it] 
does not grant a license to supplement a prev iously filed expert report because a party wants to, 
but instead imposes an obligation to supplement the report when a party discovers the information 
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it has disclosed is incomplete or incorrect.”  Lockhart v. Willingboro High Sch., Civ. No. 14-3701, 
2017 WL 11465996, at *3 (D.N.J. May 3, 2017) (internal quotations omitted) (emphasis added).  
III. ANALYSIS 
Plaintiffs state that their proposed supplemental expert report would address (1) whether 
the proposed class satisfies the numerosity requirement of Rule 23(a)(1) due to impracticability of 
joinder, and (2) whether antitrust injury as to eight of the 32 Generic-Only Purchasers can be 
proven with predominantly common evidence, which bears on whether the predominance 
requirement of Rule 23(b)(3) is satisfied.  Br. at 2.  
A. Impracticability of Joinder 
Plaintiffs represent that Dr. Lamb’s propos ed supplemental report would address two 
factors relevant to the impracticability of joinder analysis: putative class members’ ability and 
motivation to litigate as joined plaintiffs and the geographic dispersion of class members.  Id. at 3.  
As to the first factor, Dr. Lamb would calculate  individual class member s’ damages claims and 
demonstrate that a number of class members have “negative value” claims, for which the cost of 
bringing an individual action would exceed the potential relief.  Id.  Plaintiffs contend that “Dr. 
Lamb did not previously conduct this analysis because the original class of 65 members was well 
above the level at which impracticability of joinder is presumed.”  Id.  As to the second factor, Dr. 
Lamb would provide a revised lis t of class members showing th eir locations across the United 
States to demonstrate the geographic dispersion of the revised proposed class.  Id. at 4.   
The Court finds that supplementation on this basis is improper.  Plaintiffs do not claim that 
Dr. Lamb’s initial report was incomplete or incorrect, or that new information has come to light 
that would compel filing a s upplemental expert report.  See Lockhart, 2017 WL 11465996, at *3 
(finding that there was no basis to permit new op inions as supplements under Rule 26(e) where 
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original report was not incomplete or incorrect, and there was no showing that the expert received 
new information supporting supplementation).  Indeed, Dr. Lamb’s initial report already contains 
the information that Plaintiffs propose, including the geographic dispersion of class members.  See 
Br. at 11 n.28, Opp. at 19.2   
Critically, by Plaintiffs’ own admission, Dr. La mb could have addressed the issue of 
individual damages in his initial report but chose not to because Plaintiffs presumed that 
impracticability of joinder would not be an issue with the originally proposed class.  See Br. at 3.  
Notably, Plaintiffs chose not to have Dr. Lamb engage in this analysis even though Defendants 
briefed the impracticability of joinder issue and submitted expert calculations and testimony 
regarding individual damages in support, and Dr. Lamb subsequently relied upon those 
calculations.
3  See Opp. at 15-16.  Plaintiffs present no co mpelling reason as to why Dr. Lamb’s 
individual damages analysis could not have been included in his initial report.  See Scopia Mortg. 
Corp. v. Greentree Mortg. Co., L.P ., 184 F.R.D. 526, 530 (D.N.J. 1998) (ruling that 
supplementation was not permitted where the expert “could have addressed the damages issue just 
as well in his first report as he could now”).   
The Court denies the request to supplement as to Dr. Lamb’s proposed impracticability 
analysis. 
 
2 The Court is also skeptical that a list of class members’ locations falls within the scope of expert 
testimony.  See United States v. Gibbs , 190 F.3d 188, 212 (3d Cir. 1999) (expert testimony is 
excluded “when that testimony ventures into areas in which the jury needs no aid or illumination”).  
 
3 The Court is not persuaded by Plaintiffs’ argu ment that they should be permitted to submit 
additional damages calculations because Dr. Lamb disagreed with Defendants’ expert’s 
adjustments to Dr. Lamb’s data.  Dr. Lamb noted his disagreement with these adjustments in his 
expert opinion reply, see Reply at 6 n.10, and Plaintiffs pr ovide no reason why Dr. Lamb could 
not have included a more fulsome damages analysis at that time.  In other words, Dr. Lamb was 
free to pursue an alternate analysis earlier in these proceedings but did not do so.  
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B. Predominance 
Plaintiffs also seek to supplement Dr. Lamb’s expert report to address whether antitrust 
injury to the eight Generic-Only Purchasers, who Defendants did not claim were uninjured, can 
meet the predominance requirement.  Br. at 15-20.  Plaintiffs contend that analysis by Defendants’ 
own expert showed that three of these purchas ers did not pay a reduced price due to GSK’s 
contracting strategy, and one purchaser had a price drop of $0.01 due to the contracting strategy.  
Br. at 15-16.  Plaintiffs continue that Defendants  offered no evidence that the prices paid by the 
four remaining Generic-Only Purchasers were  preemptively lowered due to the contracting 
strategy.  Id. at 16.   
Plaintiffs essentially seek to relitigate the issue of class certification of the Generic-Only 
Purchasers.  The Court previously denied cla ss certification of the Generic-Only Purchasers, 
including the eight purchasers for which Plaintiffs now seek to offer supplemental expert opinions.  
D.E. 502, D.E. 503.  Plaintiffs cannot relitigate this issue.  See Am. C.L. Union v. Mukasey , 534 
F.3d 181, 187 (3d Cir. 2008) (“Under the law-of-t he-case doctrine, when a court decides upon a 
rule of law, that decision should continue to gove rn the same issues in subsequent stages in the 
same case.”) (internal quotation omitted).  Plaintiffs did not raise this alternate argument, although 
it was clearly available to them, at an earlier stage of the proceedings.   
Plaintiffs’ request to file a supplemental expert report on this basis is also denied.   
IV. CONCLUSION 
For the foregoing reasons, and for good cause shown, 
IT IS on this 21st day of January 2022 hereby 
 
 
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ORDERED that Plaintiffs’ request for leave to file a supplemental expert report, D.E. 516, 
is DENIED.   
__________________________  
 John Michael Vazquez, U.S.D.J. 
___________ _________________________________ _____________
John nnnnnnn Michael Vazquez, U.SSSSSSSS.D.D.D.D.D.D.D.D.J.
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