Putting EpiPen Within Reach

Paul Geller and his family were at Chops Lobster Bar in Boca Raton when his then-8-year-old son ate something containing traces of tree nuts and went into anaphylactic shock. Geller’s wife called 911, and Geller pulled out the EpiPen. 

The Gellers were fortunate. They could afford the EpiPen, a spring-loaded injector that delivers premeasured epinephrine for emergency treatment of anaphylaxis. Many families could not. In 2016, the $100 price tag for two EpiPens skyrocketed to $600. Geller, a founding partner of Robbins Geller Rudman & Dowd, received a flood of phone calls from outraged families, insurance companies, and the Teamsters Local 282 welfare trust fund, which covers health care benefits for its workers. 

“As you can imagine, I was very interested,” says Geller. “No family should have to calculate whether to buy groceries or an EpiPen for their child.”

Geller filed a class action against Pfizer and Mylan, alleging consumer fraud and antitrust violations. The price increase was unrelated to the costs of manufacturing or the medicine itself, according to the suit, which accused manufacturer Pfizer of paying companies to slow the entry of a generic version of the EpiPen.The suit also alleged that Mylan (now Viatris), which bought the rights to market and distribute the EpiPen, paid excessive rebates to pharmacy benefit managers and Medicaid plans when those plans did not cover competing products. “Large lawsuits against pharmaceutical companies are usually about the efficacy or safety of the drug,” says Geller. “In this case, it was not about the drug itself, but the price increase. They’d locked down the market, and competition was systematically eliminated.”

Around the country, other law firms were also receiving phone calls from distressed parents and insurance companies. In 2017, the cases were consolidated into a multidistrict litigation, In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation. The MDL was assigned to the Hon. Daniel D. Crabtree of the U.S. District Court for the District of Kansas. At the first hearing, Crabtree appointed Geller as one of four co-lead counsel. 

This was not the first time Geller had served as lead or co-lead counsel in an MDL. He held that role in In re Facebook Biometric Information Privacy Litigation, filed in 2015, which resulted in a $650 million settlement. He was also on the leadership team in the 2016 In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation. The settlement totaled $17 billion. In 2006, Geller and his firm were the sole lead counsel representing Enron investors, obtaining a $7.5 billion settlement. He’s also on the leadership committee of the national prescription opioid litigation, which so far has recovered nearly $60 billion for cities, counties and states impacted by the public health crisis. 

“In complex litigation, sometimes bigger is better,” says Geller. “You need human and financial resources. Our firm has the proven ability to take cases to trial, and because defendants know this, it helps us to settle cases for maximum value.”

Equally important is that the lead counsel get along with the other attorneys, treating them with respect and professionalism. Geller knew the other plaintiff’s lawyers involved in the EpiPen case and had worked with many of them in previous matters. 

The four co-lead counsels divided the work according to their respective strengths. Geller’s specialty is resolving complicated cases, so he was heavily involved in mediation and negotiation with lawyers for Mylan and Pfizer. Other co-counsel took depositions; and one prominent lawyer on the steering committee, Mark Lanier of Houston, prepared for trial.

While plaintiffs want the case to move quickly, the defense wants the opposite. “That’s normal,” says Geller. “But at a certain point in the EpiPen litigation, it became hard to be reasonable any longer. Mylan threw up every hurdle in the book.”

The most difficult aspect of the case for Geller, however, wasn’t the legal push and pull. It came from some of his nonlawyer friends, who argued that capitalism allows a company to charge what it wants, and the market will either bear it or not. 

“My response is that capitalism requires competition,” says Geller. “If it isn’t there, it’s a monopoly and consumers pay the price.” Geller also often hears that the payment to individual members often ends up being so small in class actions, it’s not worth it. 

Geller believes a case should be worth it to his clients. In July 2022, Judge Crabtree approved a $264 million settlement against Mylan. In November 2021, Pfizer settled for $345 million. Individual class members received significant payments, sometimes thousands of dollars. The companies denied wrongdoing. Now, lower-cost alternatives to the EpiPen are available to consumers.

The American Antitrust Institute awarded Geller and the team the honor of Outstanding Antitrust Litigation Achievement in Private Law Practice.   

“The accolades are nice, and it’s a legitimate award,” says Geller. “But that’s not why we do it. You have families who need the EpiPen.”