The parties in the trial of Anthem and Cigna met today for a pretrial conference, in which they would discuss “mechanics, not merits,” as per instructions from the judge, Amy Berman Jackson. Plaintiff states listened by phone, something we learned today they will be able to do during the trial, however, the lawyers will not be able to ask questions of any witnesses unless they are present. Judge Jackson went over the government’s motions to exclude certain declarations by expert witnesses and approximately 130 exhibits called into question by either party.
While Judge Jackson excluded the declaration of defenses' efficiency expert Dr. Singhal, in making the rulings, Judge Jackson was rather inclusive about admitting evidence that could be characterized as opinion or hearsay. She stated her reasoning was that there would be no jury and she could therefore make the proper determination about how much weight to give to statements and exhibits such as opinions given by third parties about their perception of the market.
Generally, the defendants Anthem and Cigna tended to push the envelope wherever possible. One notable instance was their attempt to include “declarations” from 43 third party witnesses. Those declarations provided unfounded opinions as to the state of the health insurance market post-merger. The defendants also attempted to include news stories and commercial market reports for context, but the judge was skeptical about the rationale for their inclusion, stating their “flaws are obvious.”
Judge Jackson had previously stated that she would be more relaxed about hearsay given the fact there would be no jury in this trial. Anthem’s inclusion of opinion statements seemed to anger Judge Jackson, however. Fact witnesses in merger cases are expected to follow guidelines which ensure the witness’s credibility is protected. For example, economists who testify about the market should cite market data and give their conclusion, rather than citing the opinions or conclusion of another. Witnesses are deposed and cross-examined in the courtroom to give opposing sides the opportunity to poke holes or cast doubt on conclusions. By submitting declarations of third parties, the defendants hoped to effectively side-step these standards and insert opinion-based statements into the body of evidence. Judge Jackson was not pleased.
Public health insurance exchange marketplaces were mentioned, with Anthem’s attorney stating that only about five minutes in the whole trial would be devoted to their discussion. The Justice Department decided earlier this fall to exclude the Obamacare exchanges from their case in order to streamline the trial process.
The first day of the trial, which will feature Anthem CEO Joseph Swedish as a witness, is Monday, November 21.