OnPoint Analytics is pleased to introduce the latest additions to our team of experts: Drs. Jeffrey Dorfman and Leora Lawton.

Dr. Dorfman received both his bachelor’s degree and his doctorate in agricultural economics from the University of California, Davis. He is a professor at The University of Georgia, where he has been on the faculty since 1989. In addition to food production and agricultural resources, Dr. Dorfman specializes in valuing real property assets, advising on development projects, crop and flood damage, and various topics in pharmaco-economics. Dr. Dorfman teaches classes in microeconomic theory, the economics of the food industry, and macroeconomic theory and policy. He performs research on food insecurity, productivity measurement, economic forecasting, a variety of agribusiness topics, development economics, and the economics of growth and sprawl. He has authored three books, most recently Economics and Management of the Food Industry, one hundred academic journal articles, and a variety of other articles published in trade publications, the popular press, and on the web. Dr. Dorfman writes regular opinion columns for Forbes and RealClearMarkets.com with additional pieces in other outlets. His consulting projects have included estimation of economic damages, analysis of market conditions for agricultural inputs and outputs, contract disputes, business valuation, the economic impacts of land use decisions and development projects on both communities and local government budgets, real estate valuation, and projection of market viability for newly developed products.

Dr. Lawton is a demographer and an expert in survey design and statistical interpretation. She received her bachelor’s degree in economics from the University of California, Berkeley, and her doctorate in sociology from Brown University. She is on the faculty in the Department of Demography at UC Berkeley and serves as the Executive Director of the Berkeley Population Center. She specializes in questionnaire design for creative and complex research projects and performs statistical analysis to glean the most insight possible from quantitative data. She has extensive experience in online survey research projects and performed product development for an online survey software technology. She also enjoys qualitative work and advises on how to integrate qualitative insights into quantitative results. Her research services include sampling plans, sample frame acquisition, data collection (qualitative and quantitative), statistical and text analysis, and presentations (written and oral). Results are used by counsel in litigation and by organizations seeking to provide better services or products, social service agencies, and policy designers.

Learn more about Dr. Dorfman and Dr. Lawton.

OnPoint expert Dr. Dan Werner recently published an article on the use of advanced statistical tools in valuation and litigation matters. The article was published in FVS Consulting Digest, a publication of the American Institute of Certified Public Accountants. The article, titled “Applying regression analysis to valuation and forensic engagements ” introduces the concept of regression analysis and discusses correct implementation alongside several examples in valuation and litigation. For example, the article describes how a regression analysis is a statistical technique used to estimate the relationship between variables and how it can be used to objectively supplement traditional valuation techniques (e.g., the discounted cash flow approach, among others) if sufficient data exists. The article concludes with a discussion of common pitfalls that practitioners should be aware of, for example issues related to the quality of data, omitted variable bias, and extrapolation. When properly applied, regression analysis is a flexible statistical tool that has many tangible applications in forensic and valuation engagements.

To learn more about the expert services OnPoint Analytics can provide around complex litigation, click here.

Dr. Gareth Macartney recently testified at arbitration as the economics expert for Altela, Inc., presenting economic analysis related to the termination by technology company Arizona Science and Technology Enterprises and the Arizona State University Foundation of a licensing agreement for exclusive use of a patented water decontamination technology known as “Dewvaporation.” Investments made by Altela allegedly in reliance on the exclusive world-wide license to the Dewvaporation technology factored into this analysis, as did the opportunities for Altela’s AltelaRain® product, with applications in the treatment of contaminated water produced from fracking and by landfill sites. Dr. Macartney filed an expert report in the matter in March 2018, and provided deposition testimony in May 2018.

To learn more about the expert services OnPoint Analytics can provide, click here.

To learn more about Dr. Macartney, click here.

OnPoint expert Christine Davis and Associate Leonore Ralston recently co-authored a Law360 article titled “3 Data Challenges in Wage and Hour Damages Analysis.” Using scenarios based on actual cases, Ms. Davis and Ms. Ralston illustrate three common data-related challenges experts face when calculating damages in wage and hour matters.

To read the full article please click here.

OnPoint expert, Professor John Connor, recently testified as the economics expert for Plaintiffs Winn Dixie Stores, Inc. and Bi-Lo Holdings, LLC in their antitrust lawsuit against a number of dairy cooperatives. Defendants are alleged to have engaged in a conspiracy to limit the production of raw milk by culling herds in order to increase prices. In December, Dr. Connor filed an expert report in the matter and this month gave a full day of deposition testimony regarding that report. The case is ongoing.

To learn more about the expert services OnPoint Analytics can provide in antitrust cases, click here.

OnPoint expert Dr. Dan Werner recently published an article on estimating damages in false labeling cases within FVS Consulting Digest, a publication of the American Institute of Certified Public Accountants. The article, titled “Using advanced data analytics to measure economic damages in consumer fraud and false advertising cases” describes regression analysis in the context of recent false labeling cases and discusses cases in which this approach has been both properly and improperly applied. Hedonic regression analysis, also sometimes called hedonic price analysis, is a statistical tool that can measure the impact of certain product features on market prices. The article begins by noting how consumer false advertising cases have been affected by class certification decisions over the last decade, before focusing on how regression analysis can be used to value contested product features. The article concludes that proper implementation of regression analysis is critical to accurate damage analysis and class certification.

To learn more about the expert services OnPoint Analytics can provide around false advertising allegations, click here.

Dr. John Connor, OnPoint testifying expert and Emeritus Economics Professor at Purdue University, presented antitrust research at the International Symposium on Imperfect Forms of Collusion held on January 12th and 13th in Cape Town, South Africa. The research paper, coauthored with OnPoint expert Dr. Dan Werner, provides a meta-analysis of contemporary bid-rigging episodes. The authors review several historical case studies and academic articles before empirically analyzing the determinants of overcharges in a sample of cartels penalized for bid-rigging behavior.

Using econometric analysis, their research suggests that market structure and macroeconomic pressures are significant determinants of overcharges that bid-rigging cartels are able to achieve. For example, cartels with many different buyers are found to achieve lower overcharges, perhaps because it is harder for cartel members to ensure bid-rigging compliance when there are a large number of individual transactions. In addition, the authors find preliminary evidence that cartels operating during macroeconomic downturns are able to achieve greater price elevation than cartels operating during boom cycles.

To learn more about OnPoint’s antitrust and competition practice, click here.

U.S. Magistrate Judge Howard Lloyd recently granted the City of San Jose’s motion to decertify a class of approximately 500 employees who have alleged that, under the Federal Labor Standards Act (“FLSA”), they were not properly compensated for their hours spent working overtime. In December 2017, the class was decertified as the judge concluded that an individualized calculation of each employee’s hours would be needed to determine damages, and courts “have found class treatment inappropriate where, as here, liability cannot be proven on a classwide basis.”

OnPoint expert and forensic CPA Christine Davis was retained as the damages expert on behalf of defendant the City of San Jose. Ms. Davis’s role in the case concerned the calculation of overtime compensation under the FLSA using the appropriate “regular rate of pay,” and the determination of whether minimum wages were paid under the FLSA. Earlier this year, Ms. Davis submitted an expert report and provided deposition testimony in the matter. She addressed the damage claims brought by the plaintiffs following a comprehensive analysis of voluminous time records and compensation data for the last three years, and a detailed reconstruction of the City’s compensation methods.

In its new book, Empirical Challenges in Pharma Litigation^*, OnPoint’s pharmaceuticals team distills a deep well of pharmaceutical industry knowledge down to its most useful and interesting elements.

For 14 years, OnPoint has provided expert analysis and testimony for some of the most complex and groundbreaking pharmaceuticals lawsuits. These cases run the gamut from antitrust, to patent infringement, to breach of contractual commitments, to alleged fraud on the market. OnPoint’s success in this field depends on a deep knowledge of pharmaceutical markets, the laws and regulations that shape them, and the complex universe of data sources that can be used to analyze them.

The first chapter describes the many sources of pharmaceutical data. It includes sections on proprietary data collected by drug manufacturers, pharmacies, and prescription drug plans, as well as data collected by the FDA. It also includes a section on the myriad offerings of third-party data vendors, including data on sales, prices, drug uses by diagnosis, pharmaceutical promotion, and formulary status. The chapter compares the pros and cons of different data sources and highlights special considerations for working with particular datasets.

Chapter 2 explores the two major laws regulating the FDA’s approval of new drugs: Hatch-Waxman, which covers brand and generic small-molecule drugs, and the Biologics Price Competition and Innovation Act (BPCIA), which covers biologics and biosimilars. This chapter summarizes the provisions of the two acts and compares the ways that each law facilitates price competition while protecting patent rights and rewarding innovation.

Chapter 3 discusses a common dispute in pharmaceutical patent litigation: whether the claimed invention was “obvious,” and therefore not patentable. This chapter summarizes the “objective considerations” used to evaluate obviousness, with special attention given to two of those considerations that are commonly litigated using the types of pharmaceutical data detailed in Chapter 1 of this book: commercial success and long-felt need.

Chapter 4 reviews the case law related to the calculation of damages in pharmaceutical patent litigation, including the two major approaches: lost profits and reasonable royalties. It explains the Panduit Factors, the Georgia-Pacific Factors, and key legal concepts such as the “entire market rule.”

Chapters 5, 6, and 7 constitute a nuts-and-bolts handbook providing practical examples of the use of particular types of pharmaceutical data to address specific litigation challenges. Chapter 5 explores the use of third-party-supplied data, Chapter 6 explores the use of proprietary data, and Chapter 7 illustrates the use of pharmaceutical data in antitrust litigation.

Finally, Chapter 8 places the U.S. pharmaceutical market in the context of the rest of the world. It offers a geographic overview of the global pharmaceutical industry, mapping out the spatial distribution of pharmaceutical consumption and production and tracing the networks created by exports, imports, outsourcing, and offshoring. It also draws country-by-country comparisons of intellectual property protections, marketing approval processes, and pricing regulations.

This richly informative book is a source of invaluable background knowledge for attorneys and others working in the pharmaceutical space. And it is a clear map of the complicated terrain of empirical analysis for pharmaceutical litigation.

^* Empirical Challenges in Pharma Litigation, by Laura Craft, Marty Kovach, Chandra Wallace, and Claudia Cortez (OnPoint Analytics 2017). For copies contact OnPoint at info@onpointanalytics.com.

OnPoint expert Dr. Vivek Shah recently provided deposition testimony in a qui tam False Claims Act matter against certain Skilled Nursing Facilities (SNFs) accused of defrauding Medicare. The amount of therapy required by Medicare SNF beneficiaries affects their assignment to certain resource utilization groups (RUGs), which in turn determine the reimbursement rates that SNFs receive under Medicare for the care they provide to beneficiaries. The alleged fraudulent conduct by the SNFs at issue included an exaggeration of therapy minutes provided to beneficiaries during assessment periods in order to qualify for higher reimbursement rates, without intending to sustain those therapy minutes after assessment periods.

Dr. Shah served as an economic expert on behalf of the Relator, the United States Government and the State of Illinois. Dr. Shah submitted an initial expert report and an expert surrebuttal report wherein he assessed the extent of the alleged ramping up of therapy minutes and analyzed the economic damages allegedly suffered by the Centers for Medicare and Medicaid Services (CMS) as a result of the defendants’ purported fraudulent conduct.

To learn more about Dr. Shah, please click here.