Judge Picks 6 Witnesses, Sets CVS-Aetna Hearing Date

The selected witnesses will be allowed to testify up to eight hours total early next month in a hearing that is definitely not a trial.

The federal judge who will decide whether CVS Health and Aetna may finalize their nearly $70 billion merger under an agreement reached with the U.S. Department of Justice hand-picked six witnesses to testify at a hearing early next month.

The parties and amici curiae had proposed 13 witnesses in total after U.S. District Judge Richard Leon said last month that he wanted to hear testimony on the pending transaction before deciding whether to sign off on the DOJ-approved agreement.

The parties, which proposed five witnesses, had urged Leon to block at least some of the amici's seven proposed witnesses from testifying, arguing that their planned testimony included irrelevant arguments. Leon denied that request in an order Monday but selected only three witnesses from each side, based on his own determination of who "would be most helpful" for the hearing.

In outlining how the hearing will proceed, Leon wrote, "it is worth stressing, at the outset, that this hearing is not a trial." Rather, it is an information-gathering exercise for the court. The government won't have to produce evidence; the witnesses won't be subject to cross-examination; and there will be no formal opening or closing arguments, he wrote.

"In short, this hearing is merely an opportunity for the parties and the amici to provide the Court with whatever additional information and analysis they believe will aid the Court in determining whether the Government's proposed final judgment is in the public interest," Leon wrote.

The order scheduled up to eight hours of testimony to begin Tuesday, June 4, at 10:30 a.m. in the U.S. District Court for the District of Columbia. The hearing will wrap up by 5:30 p.m. each day and reconvene at 10:30 a.m. each morning for up to three days of testimony to end no later than Thursday, June 6, Leon wrote.

The amici witnesses Leon selected are as follows:

Neeraj Sood, PhD, a health policy professor and vice dean for research at the University of Southern California Sol Price School of Public Policy, was put forward by the American Medical Association. Sood may testify for up to two hours.
Diana L. Moss, PhD, president of the nonprofit American Antitrust Institute and an adjunct faculty member in the Department of Economics at the University of Colorado at Boulder, was put forward by Consumer Action and the U.S. Public Interest Research Group (PIRG). Moss may testify for up to one hour.
Michael B. Wohlfeiler, MD, JD, chief medical officer for the AIDS healthcare Foundation, was put forward by the foundation. Wohlfeiler may testify for up to one hour.

The party witnesses Leon selected are as follows:

Alan Lotvin, executive vice president of transformation for CVS Health, who reports directly to CVS President and CEO Larry Merlo and plans to testify on purported consumer benefits of the CVS-Aetna deal, was put forward by his employer. Lotvin may testify for up to one hour.
Terri Swanson, vice president of Medicare product and Part D business at Aetna since 2010, was put forward by both CVS and the DOJ. Swanson may testify for up to one hour.
Lawrence Wu, PhD, president of the economic consulting firm NERA, who is expected to testify that the CVS-Aetna transaction won't lead to price increases for consumers, was put forward by CVS. Wu may testify for up to two hours.

The proposed amici witnesses whom Leon did not select were Richard M. Scheffler, PhD; Thomas L. Greaney, JD; Hal Singer, PhD; and Lawton R. "Rob" Burns, PhD, MBA. The proposed party witnesses whom Leon did not select were Michael Radu, MBA and Nicholas Hill, PhD, MSc.

Leon noted that this hearing won't be the last in his review of the DOJ's proposed final judgment, as he will "undoubtedly hear attorney arguments at a later date."

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.