Affidavit from Sandoz employee responding to Liawatidewi affidavit re GPO bids
Case 1:11-cv-11681-NMG Document 56-1 Filed 10/13/11 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MOMENTA PHARMACEUTICALS, INC.
and SANDOZ INC.,
Plaintiffs,
v.
)
)
)
)
)
)
)
AMPHASTAR PHARMACEUTICALS, INC., )
INTERNATIONAL MEDICATION SYSTEMS, LTD., )
and WATSON PHARMACEUTICALS, INC., )
Defendants.
)
)
)
Civil Action No.
I: ll-cv-1l681-NMG
DECLARATION OF DAVID PICARD IN SUPPORT OF
PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO
MODIFY OR DISSOLVE TEMPORARY RESTRAINING ORDER
I, David Picard, hereby declare as follows:
I. I am employed by Sandoz, Inc. ("Sandoz") and hold the title of Vice President,
Institutional Sales and Marketing. I have been employed by Sandoz or its predecessors for ten
years. I submit this declaration in support of Plaintiffs' Opposition to Defendants' Emergency
Motion to Modify or Dissolve Temporary Restraining Order. I am fully familiar with the facts
contained herein.
2. At Sandoz I am responsible for sales and marketing efforts related to generic
enoxaparin. In that capacity, I am familiar with Sandoz' contracts with its generic enoxaparin
customers, including wholesalers and group purchasing organizations C"GPOs") whose members
typically include hospitals and other heath care facilities where enoxaparin may be administered.
3. I have reviewed the Declaration of Jacob Liawatidewi, the Associate Vice
President of Sales and Marketing of Defendant Amphastar Pharmaceuticals, Inc. C"Amphastar")
Case 1:11-cv-11681-NMG Document 56-1 Filed 10/13/11 Page 2 of 4
filed in support of the Defendants' Emergency Motion to Modify or Dissolve Temporary
Restraining Order.
4. In his Declaration Mr. Liawatidewi makes several assertions that, based on my
experience in marketing generic enoxaparin, are not correct.
5. First, Mr. Liawatidewi overstates the role of "sole source" GPO contracts in the
generic enoxaparin market. In my experience, most GPO contracts are not "sole source."
6. Second, Mr. Liawatidewi is incorrect in suggesting that simply because a generic
enoxaparin manufacturer does not participate in a bid process with a GPO, it therefore is shut out
of making sales to that GPO during the term of the contract subject to the bid. Typically GPO
contracts are put to bid months before product is to be shipped. Indeed, the GPO contracts out
for bid this week are for product that will not be shipped until mid-2012. Consequently, there is
ample opportunity for a manufacturer, particularly a new entrant like Amphastar, to contact the
GPO either to ask that the bid deadline be delayed so that it can participate or, if bidding already
is closed, to ask that bidding be re-opened so that it can submit a competing bid. As a result, if
no injunction issues, Amphastar will have plenty of time to simply ask the two GPOs to consider
its bid well in advance of product shipment.
7. Third, GPO contracts, even sole source contracts, do not bar new entrants from
competing altogether, as Mr. Liawatidewi suggests. GPO contracts typically include competitive
pricing clauses which allow the GPO to consider lower priced offers from other suppliers during
the term of the contract. Consequently, individual product awards under GPO contracts usually
are terminable on very short notice (often 30 days). Thus, even if Amphastar does not participate
directly in the bid process this week or succeed in getting the bidding re-opened after next week
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Case 1:11-cv-11681-NMG Document 56-1 Filed 10/13/11 Page 3 of 4
if the Court does not enter a preliminary injunction, Amphastar still would not be foreclosed
from selling product to these GPOs during the term of the contracts.
8. Fourth, Mr. Liawatidewi's declaration indicates that "Amphastar's current
enoxaparin inventory includes a lot of I,S 19,936 units .that will expire on December 31, 2011."
In my experience, the ability to ship on or before October 14th, rather than October 21st, seven
days later, will make no material difference as to whether the product can be sold prior to a
December 31 expiration.
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Case 1:11-cv-11681-NMG Document 56-1 Filed 10/13/11 Page 4 of 4
I declare under the penalty of peljury that the foregoing is true and correct.
David Picard
Dated: October 13, 2011
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4955566vl
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