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Pharmaceuticals & Medical Devices

We provide economic analysis, expert testimony, and regulatory insight to support all phases of litigation pertaining to the pharmaceutical and medical device industries.

Brattle’s pharmaceutical and medical device industry experts have a proven track record of successful case execution for our clients. We have decades of experience working on cases involving the key issues in these industries, including antitrust matters, patent disputes, and contract litigation. We have principals who regularly testify in these matters, as well as close working relationships with leading academic experts and experienced practitioners in these industries.

Brattle provides its clients with rigorous analysis while managing costs carefully in order to deliver the maximum net value to our clients. We are known for our close working relationships with leading academics and practitioners and for the clear and successful communication of economic and financial reasoning to clients, judges, juries, and other decision makers.

Areas of Expertise


Below is a list of representative engagements for our Pharmaceuticals & Medical Devices practice.

Pharmaceutical supply chain for opioid products

In Healthcare Distribution Alliance v. Howard A. Zucker, in his official capacity as Commissioner of Health of New York; and Barbara D. Underwood, in her official capacity as the Attorney General of New York, consultants at Brattle supported expert declarations that analyzed the expected market impacts of the New York Opioid Stewardship Act. Leveraging publicly available data on opioid sales and wholesaler financials, consultants at Brattle estimated potential effects and assessed possible responses of parties in the pharmaceutical supply chain for opioid products.

Commercial success analysis

For numerous cases in which generic drug manufacturers alleged that the patents on a branded drug were invalid due to obviousness, Brattle has prepared expert reports analyzing the commercial success achieved by drugs covered by the patents at issue. These reports explained economic criteria for commercial success, empirically evaluated drugs’ success with respect to those criteria, and assessed evidence regarding the strength of the nexus between the drugs’ patented properties and its sales. Our analyses have involved composition, formulation, and method of use patents. Our work has involved treatments for a wide array of conditions, including various types of cancer, hormone deficiency, acne, GERD, and IBS.

Product hopping and anticompetitive behavior in pharmaceuticals industry
A team of Brattle economists assisted branded drug manufacturer Warner Chilcott in a closely-watched antitrust case involving the prescription acne medication Doryx. In this case, Warner Chilcott was alleged to have engaged in product hopping. Plaintiffs claimed that by making minor innovations in Doryx and subsequently discontinuing older versions of the drug, Warner Chilcott had prevented competition from generic drug manufacturers through “automatic substitution” in pharmacies. Working closely with attorneys from White & Case LLP, the Brattle team provided analytical support for four expert witnesses. Our reports and analyses showed that: (i) generic manufacturers compete with branded drugs using a variety of mechanisms rather than merely relying on “automatic substitution” of branded drugs with their generic equivalents; (ii) third party payors can and do drive utilization from a given branded drug towards a wide array of cheaper therapeutic substitutes; (iii) third party payors had driven utilization from Doryx to a number of therapeutic substitutes even when no generic equivalent for Doryx was available on the market; (iv) there were numerous pro-competitive business considerations motivating Warner Chilcott’s innovations in Doryx, including the need to reduce risks to patients taking the drug; and (v) changing the formulation of Doryx led to a significant reduction in reported adverse events. A ruling on summary judgment was found in favor of Warner Chilcott, the first decision in a product hopping case based on a full discovery record.
Damages analysis in medical devices
Brattle experts have extensive experience in estimating damages for patent infringement matters in the medical device industry. For example, in a recent complex case, the plaintiff —which had asserted three patents against the defendant— was, in turn, accused of infringing one of the defendant’s patents. Brattle’s expert analyzed the manner in which these devices were used, the related products used with them in surgery, and the nature of competition offered by alternative surgical approaches. Our expert also examined the client’s manufacturing facilities and production systems, its transfer pricing policies, and the effects these had on the lost profits of the subsidiary that owned the patents in suit. At trial our expert testified regarding both lost profits and reasonable royalty damages. The jury awarded Brattle’s client over $100,000,000 in damages.
Analyses of key issues in reverse payment settlement cases
In its 2013 decision in FTC v. Actavis, the Supreme Court ruled that settlements involving a so-called reverse payment should be subject to antitrust scrutiny using a rule-of-reason analysis. Brattle economists provided analyses of the economic implications of provisions commonly found in such settlements, including: (i) “no AG clauses,” under which the branded firm, as part of a patent settlement, agrees that it will not launch its own generic alternative when the first generic begins to compete and (ii) “acceleration clauses,” which allow entry by a settling generic firm if any other generic is launched before the settling generic’s agreed-upon entry date. In addition, we have evaluated the implications of courts endorsing a truncated analytical approach in evaluating such settlements.
Federal Legislative Modeling Project for PhRMA

Between 2003 and 2005 the largest members of PhRMA sponsored a research, policy and advocacy, and legislative effort to advance legislation to remove drug related personal injury lawsuits from the tort system into a national injury compensation program. As part of the initiative, experts at The Brattle Group estimated the total costs of drug-related injury litigation in the US and modeled the impact of the proposed legislation on those costs. The analysis included an assessment of the relative efficiency and efficacy of the compensation program.

Damages analysis in the pharmaceutical industry

Brattle experts have calculated lost profits and/or reasonable royalties in a number of disputes involving biologic drugs and conventional pharmaceuticals (including over-the-counter (OTC) drugs.) In these engagements, we have provided economic assessments of the but-for world, in which the alleged patent infringement did not take place.  In constructing this but-for world, we have paid particular attention to the impact of patents on launch timing, the availability of non-infringing alternatives, and the extent to which infringement may have made the drug more attractive relative to competing therapies.  We have also evaluated the extent to which the branded drugs’ sales can be attributed to its manufacturer’s marketing assets and other intangibles in order to assess the plaintiffs likely sales in the “but for” world. Drugs analyzed include those used to treat asthma and other respiratory conditions, HIV/AIDS, GERD, and bacterial infections.

Principal Emeritus
Academic Advisor & Other Outside Experts
John R. Bowblis
Academic Advisor
Miami University (Ohio)
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Dana P. Goldman
Academic Advisor
University of Southern California
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Henry G. Grabowski
Academic Advisor
Duke University
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Senior Associates
Brief of Antitrust Economists as Amicus Curiae in Re: Wellbutrin XL Antitrust Litigation
May 12, 2016
Prepared for the United States Court of Appeals for the Third Circuit
Antitrust Analysis in Physician, Hospital, and Insurer Matters
Published by The Brattle Group, Inc.
An empirical analysis of the multimarket contact theory in pharmaceutical markets
July 2013
Pedro L. Marin, Javier Coronado, and Sergi Jimenez-Martin
Published in The European Journal of Health Economics
News & Knowledge
March 28, 2019
Lisa Cameron to Speak at ABA Antitrust Section Spring Meeting on Pharmaceuticals and Intellectual Property

Brattle Principal Lisa Cameron will speak at the 67th American Bar Association (ABA) Section of Antitrust Law Spring Meeting, taking place March 27-29, 2019 in Washington, DC.

May 12, 2016
Brattle Economist Contributes to Amicus Brief in Wellbutrin XL Antitrust Litigation

Brattle Principal Steven Herscovici recently contributed to an amicus brief in support of defendant-appellees including SmithKline Beecham Corporation in Re: Wellbutrin XL Antitrust Litigation, an antitrust case currently before the U.S. Court of Appeals for the Third Circuit.

July 07, 2015
Lisa Cameron and Joshua Gans Author Law360 Article on a New Model for Evaluating Reverse Payment Settlements

Brattle principal Dr. Lisa Cameron and academic advisor Professor Joshua Gans have co-authored an article for Law360 on how to quantify a branded pharmaceutical company’s beliefs about patent strength and expected patent life in reverse payment settlement cases.

January 05, 2015
The Brattle Group Announces Three Principal Promotions

The Brattle Group is pleased to announce the promotion of Toby Brown, Ryan Hledik, and Kathleen Spees to principal.