Case 3:17-cv-00699-BRM-LHG Document 138 Filed 04/06/18 Page 1 of 19 PageID: 2031

11

UNITED STATES DISTRICT COURT RECEIVED

DISTRICT OF NEW JERSEY :I

APR 06 2018
!I'

AT 8:30
WILLIAM T. WALSH M
CLERK ;j

Civil Action No. 17-699 (BRM)(LHG)

IN RE INSULIN PRICING LITIGATION

PRO SE PLAINTIFF JULIA BOSS'S RESPONSE TO PLAINTIFFS' BRIEF IN

OPPOSITION TO MOTION FOR RECONSIDERATION

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff
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TABLE OF CONTENTS

PRELIMINARY STATEMENT .......................................................................................... 1

ARGUMENT ........................................................................................................................ 5
CONCLUSION .................................................................................................................. 14

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TABLE OF AUTHORITIES

Cases Pages

In re: National Prescription Opiate Litigation, Case Number l:l 7-md-02804-DAP .... 5 (fn.)

Rules

Rule 7.1. ............................................................... ,........................ passim

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I respectfully submit this brief in support of my Motion for Reconsideration of the

Consolidation Order, Dkt. Entry 89 (January 19, 2018) and in response to the brief (Dkt. Entry

133) filed on April 2, 2018, by interim co-lead counsel in opposition to the above-mentioned

Motion. 1

PRELIMINARY STATEMENT

I am indeed "the parent of an insulin-dependent child."2 My daughter, like any other

person with type 1 diabetes, could die of DKA if, next month, I were unable to pay the inflated

price my insurer demands for a vial of analog insulin. I am currently insured via a Bronze ACA

plan in Oregon. Two days ago, I had to pay $547.16 for two 10 ml vials ofNovolog, the analog

insulin that keeps my daughter alive. The unit cost of $273.58 is comprised of a $265.02

ingredient cost paid by the pharmacy to its specialty distributor-the current Oregon Average

Actual Acquisition Cost (AAAC)3-plus a 3% or $7.56 dispensing fee. The net cost of this vial

I I have previously filed papers that occasionally use the third person not because I, as a pro se
plaintiff, am represented by someone else in this matter but because I copied structure, reference
format and language (legalese) from briefs written and filed by counsel on behalf of other
plaintiffs in the diabetes cases pending in this Court. In history, my field of graduate training,
authors are encouraged to avoid excessive use of "I" and will sometimes resort to "we" or third-
person self-references to conform to readers' expectations. I trust that the Court will construe
such drafting imperfections in a manner consistent with the leniency my pleadings, as a pro se
plaintiff, deserve.

2 Dkt. Entry 133, at 2.

3 Available at: http://www.mslc.com/uploadedFiles/Oregon/AACArchive/

OHA%20Brand%20Web%20Listing 20180327 state.pdf and http://www.oregon.gov/oha/HSD/
OHP/Pages/AAAC-Rates.aspx This is an average of actual prices paid by pharmacies to
distributors or wholesalers; this is not a benchmark price construct derived from a proprietary
algorithm. The actual acquisition price is also referenced in PBM contracts as the drug's
ingredient cost. Actual ingredient cost (plus fixed dispensing fee) is a reimbursement basis for
specialty drugs. AAAC can be used as a reimbursement basis by the health plan that administers
the Oregon Prescription Drug Program (OPDP) (Fourth Restated Consortium Contract).

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to my insurer, based on average manufacturer rebates to insurers/manufacturer net prices as

currently reported by entities including Credit Suisse, Bloomberg, and SSR Health LLC,4 is

likely no more than $65. Large rebates paid by insulin manufacturers to PBMs and passed

through to insurers did not, however, lower the price my insurer demanded, two days ago, that I

pay for the two vials of insulin my daughter needs to stay alive for another month. In recent

years the rebate-fueled 'insurance price' or 'gross claims expense' of insulin has skyrocketed.

Over the same time period, age-adjusted DK.A hospitalization rates, caused by uncontrolled

hyperglycemia (the result of insufficient insulin) have been steadily, increasing, rising at an

average annual rate of 6.3% from 2009 to 2014. 5 The desperate situation patients are facing isn't

a matter of mere "disagreement" over "lead counsel's approach."6

The current supra-competitive benefit received by manufacturers may amount to less than

$30 per vial (the difference between the U.S. net price and the average European or Canadian

price-·i.e. in markets where dual pricing does not exist). But the manufacturers' ancillary benefit

from the PBM/insurer-controlled rebate-capture enterprise pales in comparison to the additional

payments over and above net cost that my insurers have forced me to pay: over $200 per vial. To

add insult to injury, insurance industry actors have publicly blamed my eleven-year-old daughter

4 Cynthia Koons and Robert Langreth, "What Stands Between Bezos, Buffett, and Dimon and a
Health-Care Fix," Bloomberg, February 14, 2018: "Consider Humalog, an Eli Lilly & Co. insulin
drug, which in recent years has more than tripled in price, to $275 per vial, drawing the ire of
lawmakers, patients, and consumer activists. But the company doesn't keep even 20 percent of
that list price."

5Benoit SR, Zhang Y, Geiss LS, Gregg EW, Albright A, "Trends in Diabetic Ketoacidosis
Hospitalizations and In-Hospital Mortality-United States, 2000-2014," MMWR Morb Mortal
Wkly Rep 2018;67:362-365. DOI: http://dx.doi.org/10.15585/mmwr.mm6712a3

6 Dkt. Entry 133 at 1.

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and other people with insulin-dependent diabetes for the higher insurance premiums the industry

misleading alleges have resulted from insurers paying list prices (they don't) for "expensive

drugs" like insulin. 7 The ongoing public shaming, fueled by insurers' use of unrebated claims

expense8-rather than the actual low per-vial net costs for insulin that insurers actually incur-is

pervasive in the insurance industry (from consumer-facing communications to regulatory

reporting to loss ratio and premium actuarial valuation). Insurers' misleading use ofunrebated

claims expense also forms the flawed basis for the current wave of payer-sponsored9

discriminatory "transparency" bills, including HB 4005 in Oregon and the proposed HB 1009 in

Colorado. This has to stop, and redress should not be delayed for months or years for the

convenience of interim co-lead counsel.

I may be "a devoted advocate for the interests of insulin-dependent diabetics," 10 but my

passion and devotion are not at issue here, as these are not the basis of my motion for

7 In a corporate blog post, "Why does insulin cost so much after 95 years?" Estay Greene,
director of pharmacy programs at Blue Cross and Blue Shield of North Carolina, directly links
list price and premiums: "Still, climbing insulin prices affect everyone, even people who don't
use insulin. We all pay for expensive drugs through higher insurance premiums. This underscores
the urgency of adopting healthy lifestyles and using health care wisely." Mr. Greene made this
comment about "climbing insulin prices" even though, in 2016, insurers' net costs for insulin
were flat and even starting to decline. Available at: http://blog.bcbsnc.com/2016/l l/why-insulin-
cost-so-high/ (last checked: April 2, 2018)

s See also Jeremy Olson, "Minnesota pays huge price for diabetes, Blue Cross
finds," [Minneapolis, MN] Star Tribune: "Diabetes, for example, costs each member of a private
Blue Cross health plan nearly $140 per year, the new analysis showed." http://
www.startribune.com/minnesota-pays-huge-price-for-diabetes-blue..cross-finds/439270483/

9 See, e.g., supporters of Oregon's HB 4005, including Providence, Kaiser Permanente, and
Moda as well as other third-party payers. (Moda also administers Oregon's state drug
prescription program, OPDP.) https://affordablerxnow.org/about/

10 Dkt. Entry 133, at 2.

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reconsideration. My motion for reconsideration specifically addresses the January 19, 2018,

Consolidation Order (Dkt. Entry 89), which was inaccurately entered on my behalf. I I Sound

judgment, not passion and devotion, indicates that interim co-lead counsel should have informed

the Court on or before January 19 that plaintiffs had not uniformly agreed to the draft Amended

Consolidated Complaint and had not uniformly agreed to interim co-lead counsel's decision to

remove the PBM/insurer defendants. And sound judgment indicates that this Court would cause a

grave injustice to people who need insulin to stay alive if it were to allow interim co-lead counsel

to prevent establishing a concurrent litigation track for the PBM/insurer claims.

I am not attempting here to re-litigate the Court's appointment of interim lead counsei.12 I

have already conceded that interim co-lead counsel expressly sought and obtained leadership

over the manufacturer litigation track, in accordance with their own repeated requests. 13 My

motion for reconsideration aims solely at preventing interim lead counsel of that manufacturer

track from gerrymandering-based on a factual misrepresentation of uniform plaintiff agreement

-the PBM cases they did not seek to lead and from withdrawing the PBM/insurer defendants

IIProposed Order Consolidating Cases, Dkt. Entry 88 (January 19, 2018), stating "interim lead
counsel filed a Consolidated Amended Complaint on behalf of all Plaintiffs in the above
referenced actions referenced herein on December 26, 2018." Order entered January 19, 2018
(Dkt. Entry 89).

12 See, e.g., Dkt. Entry 133, at 3.

13 See Opinion, Dkt. Entry No. 71, page 6 ("All other issues, including but not limited to the
issue of joinder and/or severance of the three pharmacy benefit manages, will be addressed at a
later date."). See also, e.g., Joint Application for Appointment of Steve W. Berman of Hagens
Berman Sobol Shapiro LLP and James E. Cecchi of Carella, Byrne, Cecchi, Olstein, Brody &
Agnello, P.C. as Interim Co-Lead Counsel for the Putative Consumer Class Pursuant to Rule
23(g), In re Insulin Pricing Litig., Dkt. Entry No. 49 (Apr. 28, 2017) (Hagens Berman and
Carella Byrne Lead Counsel Br.); Letter from James E. Cecchi, Dkt. Entry 60 (May 5, 2017);
and Letter from James E. Cecchi re 63 Letter, Dkt. Entry 65 (May 17, 2017).

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they do not choose to sue in order to fit their own manufacturer-only fact pattern, to the possible

detriment of the urgent relief that people with type 1 and other insulin-dependent diabetes

desperately need.

If interim co-lead counsel are unwilling to pursue these related claims in an efficient and

expeditious manner, then the Court should "do something meaningful to abate this crisis and to

do it in 2018" 14-I again quote this comment because, contrary to interim co-lead counsel's

assertion that the opiate litigation is not relevant here, in both instances human lives are at stake

and any delay in resolving the crisis would thus be unconscionable. It is now time to address

these issues, "including but not limited to the issue of joinder and/or severance of the three

pharmacy benefit manage[r]s." (Dkt. Entry No. 71 at 6)

ARGUMENT

I respectfully ask this Court to disregard interim co-lead counsel's opposition and to grant

my motion for the following 4 reasons.

First, interim co-lead counsel did not oppose the basis of my motion. My motion's

substantive argument, subsumed in its supporting documents-·Teceived by the Court but to date

not filed 15-provides a legitimate and persuasive basis for reconsideration. In their response

brief, interim co-lead counsel did not address the substantive basis of my motion for

14Transcript of Proceedings, 4, Docket Number 58 in In re: National Prescription Opiate

Litigation, Case Number 1:17-md-02804-DAP.

15 Subsequent to requests from Keller Rohrback on which the Court has not yet ruled, none of the
8 letters I filed prior to March 2 have been entered in the docket and filed-with the exception of
a February 11, 2018, letter, included, with corrections, in the last part of my motion for
reconsideration, now in the docket as an attachment to letter Dkt. Entry 124.

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reconsideration. 16 The Court's temporary lock/seal on part of my motion for reconsideration is

not the same as my having failed to file those papers, and thus having failed to include

substantive arguments in support of my motion. If interim co-lead counsel are currently

prevented by the Court's lock/seal from accessing papers that comprise or substantiate part of my

argument, then they should petition the Court for access, not assume that those documents do not

exist and that, as a result, no substantive argument has been made in support of the motion. 17

Interim co-lead counsel's response brief does not even mention the key issue in dispute:

the misrepresentation included in the proposed Consolidation Order of January 19, 2018 (Dkt.

Entry 88). Interim co-lead counsel do not contest my position that this Order inaccurately states

that I agreed-when in fact I did not agree, and my position regarding interim co-lead counsel's

Amended Consolidated Complaint and their repeated attempts to interfere with the establishment

of the oft-promised PBM litigation track had been known to counsel for months. The fact that the

issues and evidence I brought to the Court's attention in late January and early February are in

papers that, two months later, are still blocked does not prevent co-lead counsel from stating a

substantive objection, which co-lead counsel have, in their motion, failed to do.

In passim, interim co-lead counsel only alleges that "the Court did not overlook anything

when consolidating the cases."18 They did not contest or deny that the December 18, 2017, status

letter Dkt. Entry No. 81 included a material misrepresentation of fact (omission of any mention

16 Interim co-lead counsel apparently solely relied on Keller Rohrback's concurrent argument
against the admissibility of the argument section of the brief I submitted in support of the
motion. I did, however, email these documents to interim lead counsel.

17 An equitable solution might be for the Court to keep these documents under seal, with
restricted access, pending resolution of the concerns Keller Rohrback has raised.

18 Dkt. Entry 133, at 2.

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of the intra-class disagreement regarding the scope of interim lead counsel's leadership and the

question of a concurrent PBM/insurer litigation track) and that the subsequent Proposed

Consolidation Order, Dkt. Entry 88, entered January 19, 2018, as Dkt. Entry 89, inaccurately

stated that I agreed to the consolidation, i.e. to the termination of the PBM/insurer litigation

track. The Court can only overlook a matter if that matter has first been brought to its attention.

The Court could not overlook a matter it had no knowledge of. My unopposed allegations that

the Consolidation Order, Dkt. Entry 89, misrepresented that I had agreed should therefore be

accepted as fact and the motion should be granted on this ground alone.

Second, contrary to the assertions of interim co-lead counsel, my motion meets the

components of the Local Civil Rule 7.1 standard outlined by interim co-lead counsel in their

brief-with particular reference to (1) new information and (2) potential for grave injustice to the

class. That motion, together with the documents (and argument) it incorporates by reference,

provided new information that my former counsel Keller Rohrback and interim co-lead counsel

were aware that I (1) disagreed with interim co-lead counsel's decision to remove the PBM/

insurer defendants, (2) had objected to certain details in the draft Amended Consolidated

Complaint (including matters of fact-such as the current percentage scale of rebates-that

interim co-lead counsel could easily have verified and corrected but did not), and (3) had asked

that these issues be brought to the attention of the Court.

Objections/requests 1-3 were communicated with specificity in phone conversations and

in emails to Keller Rohrback; my disagreement with the manufacturer-only consolidation and

request to bring the PBM/insurer litigation issue to the attention of the Court were also

communicated via email to co-lead counsel prior to their filing of the December 26, 2017

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Amended Consolidated Complaint. Interim co-lead counsel failed, however, to bring the intra-

class disagreement to the Court's attention in the December 18, 2017, update letter and then, in

the subsequent Proposed Consolidation Order, Dkt. Entry 88, alleged that all plaintiffs had

agreed to filing of the manufacturer-only Amended Consolidated Complaint.

My Motion for Reconsideration (including the blocked documents) brought further new

relevant information that was not hitherto raised by counsel, including Hagens Berman's 2003

litigation on behalf of payers for rebate pass-through; past Hagens Berman client AFSCME DC

37's rebate pass-through PBM contract with OptumRx (a defendant in the Boss action); and the

copay coupon case filed in this Court against Merck & Co by James Cecchi on behalf of"a

coalition of health plans."19 As of January 19, 2018, and even more so as of April 5, 2018, it was

and is evident that any delay in addressing insurers' failure to pass the manufacturer rebates they

receive through to plan members who actually bought rebated insulin-and thus earned the

rebate-is causing significant financial and medical harm to putative class members. Not

litigating (or delaying litigating) the primary cause of patient injury would be a grave injustice.

The motion should be granted on this ground alone.

Third, interim co-lead counsel's arguments in support of its opposition are at the same

time irrelevant to the matter being reconsidered and factually inaccurate. Interim co-lead counsel

only sought leadership of the manufacturer track, and the issue of the PBM joinder was left

unaddressed in the September 18, 2017, order.20 The issue of the PBMjoinder has not, in fact,

19 See, e.g., https://www.law360.com/articles/3 79182/merck-bashes~lawsuits-over-prescription­

copay-coupons; https://www.law360.com/articles/317055/pfizer-others-sued-by-health-plans-
over-copay-coupons; https://aishealth.com/archive/ndbn032312-02; and http://www.dc37.net/
benefits/health/prescription

20 See, e.g., fn. 11 above.

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ever been litigated-hence interim co-lead counsel's use of an inaccurate Proposed

Consolidation Order and a tolling agreement (yet to be disclosed) irt an indirect attempt to turn

their de facto termination of the PBM track into a fait accompli, bringing their overbearing will

against my disagreement and leaving the Court little choice but to endorse this unlitigated diktat.

To the contrary, the misrepresentation that co-lead counsel had obtained uniform plaintiff

agreement to their manufacturer-only consolidation specifically sidestepped litigating this issue.

This is obviously not a valid or even relevant ground for denying my motion for reconsideration.

And fourth, new information suggests that this motion for reconsideration is the class's

last hope for immediate relief. I concede that, prior to January 19, 2018, I could have brought to

the attention of the Court the admission from the Centers for Medicare and Medicaid Services

(CMS)2 1 that payers' rebate-capture enterprise is harming patients whose payments under

Medicare Part Dare based on unrebated list price, though I did bring this information to the

attention of counsel. But contrary to co-lead counsel's inference that no new information would

warrant the Court's granting of my Motion for Reconsideration, even since January 19, 2018,

21I co-authored the Type 1 Diabetes Defense Foundation's January 15, 2018, comments
responding to CMS-4182-P. CMS notes here that when rebates are ''not reflected" in the point of
sale price, then beneficiary cost-sharing "becomes larger, covering a larger share of the actual
cost of a drug." CMS further recognizes here that thus increasing Part D beneficiaries' out-of-
pocket costs can lead to medication non-adherence: "Numerous research studies further suggest
that the higher cost-sharing that results can impede beneficiary access to necessary medications,
which leads to poorer health outcomes and higher medical care costs for beneficiaries and
Medicare" (p. 56419-20). CMS--4182-P, RIN 0938-AT08, "Medicare Program; Contract Year
2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare
Fee-for-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program,"
Federal RegisterNol. 82, No. 227/Tuesday, November 28, 2017/Proposed Rules, pp. 56336-
56527. TlDF's comments are available at: https://www.scribd.com/document/369379443/TlDF-
Comments-on-Medicare-Part-D-Proposed-Rule-on-Access-to-Negotiated-Price.

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numerous public disclosures indicate that a PBM/insurer track is crucial to reaching the patient

llljury.

A week ago Aetna, 22 hard on the heels of UnitedHealth, 23 announced that in 2019 they

may start to pass the rebates they receive from manufacturers through to some individual insured

patients. This sudden volte-face does not cure the injury caused by the rebate-fueled

skyrocketing list price of insulin and health plans' prior and current failure to pass directly

through at the point of sale the full value of all discounts and rebates, negotiated on behalf of

plan members, to all plan members who buy deep-discount rebated drugs. These sudden

announcements of a planned shift in corporate practice do, however, point to insurers'

discretionary control over manufacturer rebate allocation-the direct cause of patients' largest

llljury.

Meanwhile, new disclosures at the state level indicate that the same states that are passing

payer-sponsored "transparency" legislation may either be profiting from, or failing to intervene

despite knowledge of, the PBM/insurer-controlled rebate-capture scheme. On March 8, 2018,

Oregon Governor Kate Brown explained to the U.S. Senate H.E.L.P. Committee, "Innovative

programs [like the Oregon Prescription Drug Program and the Northwest Prescription Drug

Consortium with Washington] have enabled Oregonians to benefit from more aggressive

prescription drug pricing, a result of pooling our drug purchasing. Since 2007, groups that joined

22Emma Court, "Aetna will pass drug discounts along to some members at the pharmacy
counter." MarketWatch, Match 28, 2018. https://www.marketwatch~com/story/aetna-will-pass­
drug-discounts-along-to-some-members-at-the-pharmacy-counter-2018-03-27

23Anna Wilde Matthews and Joseph Walker, "UnitedHealth Will Pass Drug Rebates Directly to
Some Consumers," The Wall Street Journal, March 6, 2018. https://www.wsi.com/articles/
unitedhea~th-will-pass-drug -rebates-directly-to-some-consumers-1520337601

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the Consortium have seen savings on their pharmacy benefit programs, more aggressive

prescription drug prices, 100% pass-through pricing on drug costs and manufacturer

rebates, lower administrative costs and complete program transparency." 24 (emphasis added)

Despite the sophisticated understanding of PBM/payer rebate pass-through contracts Oregon's

Governor displayed in these comments, just days later she signed into Oregon law a payer-

sponsored drug pricing "transparency" bill, HB 4005. Despite its claimed commitment to

transparency in a drug-pricing "emergency," HB 4005 completely evades acknowledging that the

PBM/insurer rebate-capture enterprise even exists and institutes a selective public reporting

protocol that will entice Oregonians to blame health insurance premium increases on unrebated

pharmaceutical list prices, and thus on people with chronic medical conditions who can maintain

their health, or sustain life, only by using drugs with high or increasing list prices. 25 Meanwhile

OPDP, the same program Gov. Brown extolled as receiving "100% pass-through pricing on drug

costs and manufacturer rebates," misleadingly tells low-income, usually uninsured Oregonians

who sign up that "[t]he greatest discounts are on generics,"26 and then charges those uninsured or

24Kate Brown, Governor of Oregon, Testimony before the Senate Committee on Health,
Education, Labor and Pensions, March 8, 2018: https://www.help.senate.gov/imo/media/doc/
Brownl 1.pdf

25 On Oregon's HB 4005, see Julia Boss, "Transparency Bill Ignores Role of Insurers," [Eugene,
OR] Register-Guard, March 6, 2018. http://registerguard.com/rg/opinion/36518187-78/drug-
transparency-bill-ignores-role-of-insurers.html.csp. The high list price of insulin was a constant
theme in supporters' advocacy for HB 4005.

26 http://www.oregon.gov/oha/HPA/CSI-OPDP/Pages/FAQs.aspx

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underinsured Oregonians OPDP's $270.71 unrebated price27 for a 10 ml vial ofNovolog insulin

or $269.85 for a 10 ml vial of Humalog insulin.28

In other words, while states might ordinarily be expected to protect consumers from a

scheme such as the one I here allege, instead interstate bulk purchasing programs and state

prescription drug programs appear now to be directly benefiting from the rebate-capture scheme

I am alleging in seeking to open a PBM/insurer litigation track. But States are also using their

regulatory power to obfuscate and perpetuate the scheme-ignoring their responsibility to

prevent discriminatory and misleading practices by insurers. For example, in Colorado, the

interim Commissioner of Insurance (formerly an Assistant Attorney General) issued on January

26, 2018, a Health Insurance Cost Report that claims "insurance companies operated at a loss" in

Colorado, based on loss ratio calculations generated using unrebated pharmacy claims expense.29

This artificial regulatory loss, predicated on the disappearance of over $500-600 million in

pharmaceutical manufacturer rebate payments made annually to Colorado plans Gust a fraction

of $127 billion in annual pharmaceutical rebates nationwide), is then used to justify premium

mcreases.

While supposedly operating at similar reported losses across the country, in state after

state, health insurers have simultaneously been reporting soaring profits. UnitedHealth's net

21 https://mp.medimpact.com/mp/secure/LaunchProductFrameset.j sp

28 https://mp.medimpact.com/mp/secure/LaunchProductFrameset.j sp

29 Colorado Department of Regulatory Agencies, Division of Insurance, "Health Insurance Cost

Report to the Colorado General Assembly for Calendar Year 2015." https://drive.google.com/file/
d/0BwguXutc4vbpbUWTnRnT01DSTg/view

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earnings attributable to shareholders rose 26.3% to $2.49 billion.30 Aetna's most recent quarterly

profit soared by 75.5%.31 Aetna, Anthem, Cigna, Humana and UnitedHealth Group - the big

five for-profit insurers - cumulatively collected $4.5 billion in net earnings in the first three

months of 201 7, for a simple reason: "The first quarter of the year is usually good for health

insurers. Deductibles are reset, leaving people [who buy insulin] on the hook for a lot of their

[artificially inflated] out-of-pocket medical expenses."3 2

State bulk purchasing programs, State prescription drug programs, and State insurance

commissioners-all government actors-appear either to be benefiting from or using state

regulatory power to obfuscate the PBM/insurer-controlled rebate-capture scheme that is directly

injuring the class and literally causing people with type 1 diabetes to die. These rebate-capture

schemes seem to have originated in CMS 's regulatory redefinition of "negotiated price" when

implementing Medicare Part D in 2005-resulting in Part D beneficiaries making pharmacy

payments based on the unrebated list price of their drugs (a practice that federal government

administrators, and elected officials including Sen. Claire McCaskill and Sen. Maggie Hassan,

30 "United Health Tops Profit Estimates on Strength in Optum Business," CNBC October 17,
2017. https://www.cnbc.com/2017/10/17/insurer-unitedhealths-profit-rises.html

31 "Health Insurer Aetna's Quarterly Profit Soars 75.5% on Lower Costs," CNBC January 30,
2018.https://www.cnbc.com/2018/01/30/health-insurer-aetnas-guarterly-profit.-soars-75-point-5-
percent-on-lower-costs.html

32 Bob Herman, "Profits are Booming at Health Insurance Companies," Axios May 24, 2017.
https://www.axios.com/profits-are-booming-at-health-insurance-
companies-1513302495-18f3710a-c0b4-4ce3-8b 7f-894a755e6679 .html

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worked hard, throughout 2017, to pretend does not exist).33 In light of state and federal agencies'

active participation in and failure to regulate the PBM/payer-controlled rebate-capture enterprise

that is hurting people who have insulin-dependent diabetes, there is~no recourse but in this Court.
i

Not granting this motion for reconsideration would thus be the greatest possible injustice. The

motion should be granted on this ground alone.

CONCLUSION

First, interim co-lead counsel did not oppose the basis of my motion. The Court's

temporary embargo on placing on the docket the documents sustaining my argument is not

equivalent to my having failed to make an argument. Interim co-lead counsel in fact carefully

avoided even mentioning the key issue in dispute: that the consolidation order of January 19,

2018, included a counterfactual assertion of uniform plaintiff agreement. Second, contrary to the

assertions of interim co-lead counsel, my motion includes the elements described in Local Civil

Rule 7.1, including new information and grave injustice. Third, interim co-lead counsel's

arguments in support of its opposition are at the same time irrelevant to the matter being

reconsidered and factually inaccurate. Andfourth, contrary to interim co-lead counsel's repeated

assertions in the response brief, new evidence suggests that this motion for reconsideration is the

class's last hope for immediate relief, as federal and state actors charged with protecting the

public appear to be actively involved, either deriving direct benefits, in both state and federal

33 See the following documents, all of which I co-authored: TlDF's Comment to CMS on Access
to Negotiated Price in Medicare Part D, cited above in fn. 19; TlDF's Letter to the Senate
H.E.L.P. Committee and enclosed report, "U.S. Senate Help Committee 2017 Hearings on Drug
Pricing: Obscuring the U.S. Cost-Sharing Crisis?" December 15, 2017, https://www.tldf.org/
news/2017/12/15/tldf-letter-to-us-senate-cost-sharing-crisis; and "Robbing Peter to Keep Paul's
Premiums from Going Up," November 30, 2017 https://www.tldf.org/news/2017/11/15/robbing-
peter-to-pay-pauls-premium.

- 14 -
Case 3:17-cv-00699-BRM-LHG Document 138 Filed 04/06/18 Page 18 of 19 PageID: 2048

prescription drug programs, from the PBM/insurer rebate capture scheme or else concealing the

scheme's existence.

For any or all of these grounds, the allegations included in interim co-lead counsel's

response brief should be disregarded and my Motion for Reconsideration of the Consolidation

Order, Dkt. Entry 89 (January 19, 2018) should be granted. Not granting this motion would be

the greatest possible injustice to a class of individuals who are being forced by insurers to pay

list prices that have skyrocketed as a result of the PBM/insurer rebate-capture enterprise; who

have, in the meantime, been stigmatized by actors in and advocates for the industry that is most

directly injuring them; and, finally, who are now being further stigmatized in State legislation,

financially abused in States' direct drug purchasing programs, and abandoned in a failure of

regulatory oversight by the very government actors who are supposed to protect them.

Dated: April 5, 2018

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff

- 15 -
 Case 3:17-cv-00699-BRM-LHG Document 138 Filed 04/06/18 Page 19 of 19 PageID: 2049

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