Dr. Anupam B. Jena, an Analysis Group Affiliate, Provides Testimony in Gilead Science’s Successful Defense of Pay-for-Delay Allegations of HIV Treatments

August 8, 2023

Analysis Group, one of the largest international economics consulting firms, supported academic and medical affiliate Anupam B. Jena in preparing testimony assessing damages and evaluating elements of innovation in developing Gilead Science’s HIV treatments. Gilead, a Kirkland & Ellis and Proskauer Rose client, was a co-defendant with Teva Pharmaceuticals, a Goodwin Procter client, in a rare pay-for-delay antitrust jury trial.

In the matter In re: HIV Antitrust Litigation, health plans and insurers claimed they were overcharged for the Gilead-brand HIV drugs Truvada and Atripla, as well as for the generic versions manufactured by Teva once they became available. The plaintiffs alleged that Gilead made a reverse payment by providing Teva six months’ contractual exclusivity on its generics in exchange for allowing Gilead to maintain a monopoly over both drugs until September 30, 2020. The plaintiffs sought damages, among other relief.

In his rebuttal to the plaintiffs’ experts, Dr. Jena, the Joseph P. Newhouse Professor of Health Care Policy at Harvard Medical School and a physician at Massachusetts General Hospital, testified at trial that the plaintiffs’ experts’ damages estimates were unreliable and that many of the assumptions used by the plaintiffs’ experts lacked basis. Of particular relevance were Dr. Jena’s arguments focusing on whether generic manufacturers would have entered the market earlier absent the alleged conduct. In addition, Dr. Jena testified that Gilead’s HIV treatments significantly benefited society, an argument that was related to questions about the competitive effects of Gilead’s alleged conduct.

Following a six-week trial in the US District Court for the Northern District of California, the jury ruled in the defendants’ favor, finding that the plaintiffs had not shown that Gilead had market power within the relevant markets that included Truvada and Atripla. The jury also found that the settlement between Gilead and Teva did not include a reverse payment.

An Analysis Group team led by Managing Principal Pavel Darling, Principal Richard Mortimer, and Manager Ngoc Pham assisted Dr. Jena in the preparation of his testimony.