A federal judge in Boston entered $12.9 million in damages against AstraZeneca and nearly $700,000 against Bristol-Myers Squibb for class members in a suit about marketing the spread of certain drugs. The decision by US District Court Judge Patti Saris follows a June ruling in which she determined the drugmakers engaged in unfair and deceptive trade practices by inflating average wholesale prices, or AWP. At the time, only preliminary damages were set.

The case focused on patients who paid for eight different drugs from December 1997 to 2003 and have been reimbursed by Medicare, private insurers as well as patients who made co-insurance payments based on AWP. In reaching her original decision, Saris wrote that the drugmakers “unscrupulously took advantage” of the AWP reimbursement system “by establishing secret mega-spreads between the fictitious reimbursement price they reported and the actual acquisition costs of doctors and pharmacies.”

For instance, she found that AstraZeneca marketed the spread on its Zoladex cancer drug, which means the drugmaker sold the med based on its profitability to doctors, and that less than 10 percent of Bristol-Myers’s sales were made within 5 percent of its list price. Such examples prompted her to write that the nature of the Medicare system put the “proverbial pharmaceutical fox in charge of the reimbursement chicken coop.”

The AWP class action suit was originally filed in 2002 in U.S. District Court in Massachusetts. The original complaint names 23 drugmakers, although Glaxo settled last year and agreed to pay $70 million. The original suit represents all people who have taken or paid for any one of 37 named drugs in the original filing. “Judge Saris agreed with our damage estimates and did not pull punches in her characterization of the defendants’ actions,” says Steve Berman, lead attorney for the plaintiffs.

An AstraZeneca spokesman e-mailed us this response: “AstraZeneca is disappointed with the judge’s ruling and we intend to appeal. We believe the ruling is unsupported as the conduct at issue was the result of highly competitive conditions in the pharmaceutical marketplace, which led to discounting. The Court’s prior ruling on liability is thus profoundly anti-competitive. Additionally, the plaintiffs are fully aware of AWP pricing and still use AWP as a reimbursement benchmark today. The result of AstraZeneca’s conduct in this case was to keep a lower cost product competitive under the Government’s reimbursement system, thereby saving Medicare and patients millions of dollars.”