Commonwealth v. Tap Pharmaceutical Products, Inc. , 626 Pa. 25 ( 2014 )

ORDER

PER CURIAM.

AND NOW, this 16th day of June, 2014, the Order of the Commonwealth Court is VACATED, and the matter is remanded per the terms of Mr. Justice Baer’s responsive opinion in Commonwealth v. TAP Pharm. Prods., Inc., J-52B-2014, — Pa. -, 94 A.3d 350, 2014 WL 2723008 (Pa. June 16, 2014).¹

Justice STEVENS did not participate in the consideration or decision of this case.

Justice BAER files a concurring statement in which Justices TODD and MeCAFFERYjoin.

1 . The vacation here, as in the noted case involving a different pharmaceutical company, rests on the Commonwealth’s failure, by any measure, to offer a rational accounting for the billion dollars in rebate monies which Commonwealth agencies received from drug manufacturers which it haled into court. In the present case, we recognize that the testimony of the Commonwealth’s damages expert, Frederick R. Warren-Boulton, PhD, was more extensive than it was in the earlier case as it concerned the rebate question. Nevertheless, such testimony was based upon an "overhead shifting” theory which the economist conceded could not be proved and was only theoretical. See N.T., November 3, 2010, at 2430-31. The Commonwealth obviously could not satisfy its burden of proof via theories unsupported by evidence. Cf. Lower Makefield Twp. v. Lands of Dalgewicz, 620 Pa. 312, 67 A.3d 772, 776 n. 5 (2013) (explaining that an expert’s conclusions must be grounded upon salient record-based facts). Outside the unproven "overhead shifted” theory, Mr.

Warren-Boulton conceded as follows in an interchange with counsel:

Q. [W]ould you agree that these rebates lower the net cost of each drug that is dispensed and reimbursed by DPW and PACE?

A. Holding constant other payments by DPW and PACE, of course, yes....

N.T., November 3, 2010, at 2435.