The Brattle Group has assessed damages in numerous breach of contract cases in markets for pharmaceuticals, biologic products, medical devices, and other forms of health care technology. To calculate damages in these cases, our experts have conducted quantitative and qualitative analyses of the underlying regulatory environment, the degree of competition between similar therapeutics, ex ante expectations of future sales and profitability, historical pricing and sales trends, and customary interpretation of specific contractual terms. We have dealt with disputes related to many kinds of contracts, including acquisition contracts, supply contracts, distribution agreements, employment contracts, and co-marketing arrangements.
On behalf of a medical device company that had developed an innovative treatment for a common urological condition, The Brattle Group quantified the damages resulting from failure of the company’s marketing partner to live up to the terms of its marketing and distribution agreement. This failure, which occurred during a point in time when several competing therapies were entering the market, allowed competitors to become established during what would otherwise have been the device company’s primary opportunity to win market share. Our team developed an econometric model of the adoption of new therapies by physicians and their subsequent supplier loyalty to their original suppliers to estimate the device company’s lost sales.
The Brattle Group worked on behalf of a large multinational corporation involved in a dispute over whether it had disclosed a regulatory pricing restriction when it sold off its pharmaceuticals division. Our experts prepared testimony that quantified the damages resulting from this non-disclosure. Using historical drug pricing data and publically available policy documents, we conducted analyses on the issues that the buyer should have been knowledgeable about prior to the acquisition, such as the underlying regulatory environment and the impact of generic penetration. We also assessed the degree to which the information in the pricing contract was already encompassed in sales forecasts and other disclosures made during the acquisition process.
The Brattle Group was engaged by a large pharmaceutical manufacturer to evaluate whether it had met its contractual obligations for promoting a product that it had licensed from a smaller drug company. We presented evidence concerning the low probability of a drug in development eventually being approved by the FDA and rebutted the plaintiff’s damage estimates.
For a major pharmaceutical company, The Brattle Group provided expert testimony before an arbitration panel on the damages that the company suffered as a result of the termination of a co-marketing agreement for a prescription hormonal replacement therapy. The client’s co-marketing partner terminated the agreement just as the product reached a breakeven point, and well before the agreement was due to expire. Our expert quantified the profits that the pharmaceutical company would have earned had the agreement run its expected course, as well as the profits the company could have expected to earn on its existing portfolio of products had it never entered into the agreement. In response to Brattle’s testimony, the arbitration panel awarded the pharmaceutical company approximately $60 million in damages.