IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ENVOLVE PHARMACY SOLUTIONS, )

INC., ET AL., )

 Plaintiffs, )

)

v. ) C.A. No. N19C-12-214

) PRW CCLD

 )

RITE AID HDQTRS. CORP., )

and RITE AID CORP., ) 

Defendants. )

Submitted: July 13, 2023

Decided: August 30, 2023

MEMORANDUM OPINION AND ORDER

Upon Plaintiffs Envolve Pharmacy Solutions, Inc., et al.’s Motion for Judgment 

Notwithstanding the Verdict or, Alternatively, a New Trial,

DENIED,

Upon Defendants Rite Aid Hdqtrs. Corp. and Rite Aid Corp.’s Motion for Costs,

GRANTED.

Karen Jacobs, Esquire, Alexandra M. Cumings, Esquire, MORRIS, NICHOLS, ARSHT 

& TUNNELL LLP, Wilmington, Delaware; Keith J. Harrison, Esquire, Christopher 

Flynn, Esquire, Daniel W. Wolff, Esquire, Jerome P. DeSanto, Esquire, Jed 

Wulfekotte, Esquire, CROWELL & MORING LLP, Washington, D.C., Attorneys for 

Plaintiffs Envolve Pharmacy Solutions, Inc., et al. 

Corinne Elise Amato, Esquire, Eric J. Juray, Esquire, Jason W. Rigby, Esquire, 

PRICKETT, JONES & ELLIOT, P.A., Wilmington, Delaware; Neil K. Gilman, Esquire, 

Christopher J. Dufek, Esquire, Brianne Reese, Esquire, HUNTON ANDREWS KURTH 

LLP, Washington, D.C.; John B. Shely, Esquire, Courtney B. Glaser, Esquire, 

Kelsey J. Hope, Esquire, HUNTON ANDREWS KURTH LLP, Houston, Texas, Attorneys 

for Defendants Rite Aid Hdqtrs. Corp. and Rite Aid Corp.

WALLACE, J. 
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Plaintiffs filed this action in December 2019. In May 2023, the parties 

undertook a two-week jury trial. Plaintiffs’ case involved two breach-of-contract 

claims, one unjust enrichment claim, and two claimed exceptions to the statute of 

limitations. Defendants’ case involved a voluntary payment defense. The jury 

returned a clean sweep verdict for Defendants. Now, Plaintiffs request judgment 

notwithstanding the verdict on all claims and defenses. Plaintiffs alternatively ask 

for a new trial. Defendants seek costs. For the reasons set forth below: Plaintiffs’

motion for judgment notwithstanding the verdict is DENIED in full; Plaintiffs’ 

alternative motion for a new trial is DENIED; and Defendants’ motion for costs is 

GRANTED.

I. BACKGROUND

Plaintiffs Centene1filed this action against Defendants Rite Aid2in December 

2019.3 Originally, Centene asserted six claims: (1) fraud/intentional 

misrepresentation; (2) breach of the 2003 Contract between Plaintiff Envolve 

Pharmacy Solutions, Inc. (“Envolve”) and Rite Aid; (3) breach of the 2003 Contract 

1

“Centene” refers to the Plaintiffs in this action. Plaintiffs are a collective of health plans and 

pharmacy benefit managers. For a more detailed explanation of the parties in this action, as well 

as the factual background leading up to trial, see the Court’s decision from a few months ago. 

Envolve Pharm. Sols., Inc. v. Rite Aid Headquarters Corp., 2023 WL 2547994 (Del. Super. Ct. 

Mar. 17, 2023).

2

“Rite Aid” refers to the Defendants in this action. Those Defendants are Rite Aid Hdqtrs. 

Corp. and Rite Aid Corp. See Envolve Pharm. Sols., Inc., 2023 WL 2547994, at *2.

3

See Complaint (“Compl.”) (D.I. 1).
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as a third-party beneficiary; (4) breach of the 2013 Contract between Envolve and 

Rite Aid; (5) breach of the 2013 Contract as a third-party beneficiary; and (6) unjust 

enrichment related to the 1996 Caremark Contract between Caremark L.L.C. f/k/a 

PCS Health Systems (“Caremark”) and Rite Aid.4

On Rite Aid’s earlier motion, the Court dismissed the fraud claim and both 

third-party beneficiary breach-of-contract claims.5 The Court also dismissed the 

unjust enrichment claim with respect to Envolve, but that claim remained viable with 

respect to the other Plaintiffs.6

Thereafter, Centene filed its Amended Complaint and asserted three causes of 

action: (1) breach of the 2003 Contract between Envolve and Rite Aid, (2) breach of 

the 2013 Contract between Envolve and Rite Aid, and (3) unjust enrichment related 

to the 1996 Caremark Contract for all Plaintiffs except Envolve.7 Discovery ensued.

After discovery, Centene moved for partial summary judgment on its breach 

of the 2003 Contract claim and breach of the 2013 Contract claim.8 Centene also 

argued Rite Aid was collaterally estopped from relitigating the meaning of certain 

4

Id. ¶¶ 70-137.

5

See Envolve Pharm. Sols., Inc. v. Rite Aid Hdqtrs. Corp., 2021 WL 140919, at *11 (Del. Super. 

Ct. Jan. 15, 2021), reh’g denied, 2021 WL 855866 (Del. Super. Ct. Mar. 8, 2021).

6 Envolve Pharm. Sols., Inc., 2021 WL 140919, at *11.

7 Amended Complaint (“Am. Compl.”) ¶¶ 82-149 (D.I. 107).

8

See Centene’s Motion for Partial Summary Judgment at 31-39 (D.I. 228, D.I. 229).
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contractual language.9 Simultaneously, Rite Aid moved for summary judgment on 

the three remaining claims.10 Rite Aid also argued Delaware’s three-year statute of 

limitations barred the claims with no applicable exception and the voluntary 

payment doctrine defeated Centene’s claims.11

Ultimately, both motions were denied. But, in its written decision, the Court 

made certain determinations relating to the relevant contracts’ language.12 The 

Court will briefly highlight the relevant facts known at the time of summary 

judgment and the determinations that framed the issues for trial.

In 2008, Rite Aid launched its Rx Savings Card Program (the “Program”).13 

The Program offered discounts on certain generic and brand name drugs.14 The 

Program had no enrollment fee.15 To enroll, a person completed a form containing 

demographic information, signed a HIPAA waiver, and signed a marketing 

authorization.16 The Program permitted one to enroll his or her family members.17 

Additionally, from 2008 to 2015, Rite Aid had a price-matching policy (the 

9

See id. at 29-31.

10 See Rite Aid’s Motion for Summary Judgment at 25-39 (D.I. 222, D.I. 223).

11 See id. at 12-25, 39-41.

12 See Envolve Pharm. Sols., Inc., 2023 WL 2547994.

13 Id. at *4.

14 Id.

15 Id.

16 Id.

17 Id.
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“Price-Matching Policy”).18 The Price-Matching Policy permitted a Rite Aid 

pharmacist to match a competitor’s verified price.19 When visiting, a customer 

would provide a Rite Aid pharmacist with a competitor’s verified price (subject to 

geographical limitations), and that pharmacist, at the his or her discretion, could then 

choose to match that lower price.20 

Whether Program prices and Price-Matching Policy prices fit within certain 

contractual language was a chief issue in this action.

Three contracts were relevant for summary judgment and eventually trial:21

the 2003 Contract, the 2013 Contract, and the Caremark Contract.22 The contractual 

definitions of Usual and Customary (“U&C”) price were front and center throughout 

this action. The 2003 Contract defines U&C price as: “Those amounts which [Rite 

Aid] normally charges its private pay patients for comparable Pharmaceutical 

Services and as may be provided to Patient-Beneficiaries of a Third Party Payor, as 

provided herein.”23 The 2013 Contract defines U&C price as “the lowest price [Rite 

Aid] would charge to a non-contracted, cash-paying customer with no insurance for 

18 Id. at *5.

19 Id.

20 See id.

21 Centene had a fourth claim based on the “Argus Contract,” which Centene withdrew before 

trial.

22 For a detailed overview of these contracts, see Envolve Pharm. Sols., Inc., 2023 WL 2547994,

at *2-5.

23 Id. at *2 (alterations in original).
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an identical Pharmacist Service on the date and at the location that the product is 

dispensed, inclusive of all applicable discounts, promotions, or other offers to attract 

customers.”24 The Caremark Contract defines U&C price as “the lowest price [Rite 

Aid] would charge to a particular customer if such customer were paying cash for 

an identical prescription on that particular day. This price must include any 

applicable discounts offered to attract customers.”25

On summary judgment, the Court determined the Program was a contract.

Thus, the Program was excluded from the 2013 Contract’s U&C definition due to 

that definition’s “non-contracted” language.26 The Court further determined the 

Price-Matching Policy was not a contract.27 The Court observed the Price-Matching 

Policy, in general terms, could be considered a discount.28

The Court denied both motions on the breach of the 2003 Contract claim.29 

The Court denied both motions on the breach of the 2013 Contract claim but held 

Program prices were excluded from the 2013 Contract’s language, leaving only the 

Price-Matching Policy prices for that claim.30 The Court denied Rite Aid’s motion 

24 Id. at *3 (alterations in original).

25 Id. at *5 (alterations in original).

26 See id. at *14-16.

27 Id.

28 Id.

29 Id. at *13.

30 Id. at *14-16.
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on the Caremark Contract claim.31 One pivotal issue left for trial was whether 

Program customers and Price-Matching Policy customers fell within the U&C 

definitions’ “cash-paying customers” and “customer[s] . . . paying cash” language.

32

In May 2023, the parties and the Court undertook a two-week jury trial. 

Centene presented its three remaining claims—two for breach of contract and one 

for unjust enrichment. Rite Aid moved for judgment as a matter of law at the 

conclusion of Centene’s case in chief.

33

 Rite Aid argued (a) Centene failed to prove 

Rite Aid acted without justification on the unjust enrichment claim, and (b) Centene 

failed to prove tolling applied to the statute of limitations.34 The Court denied that 

motion.35 On the justification issue, the Court noted “[t]he fact that perhaps 

Caremark and its pharmacies, including Rite Aid, . . . acted differently [than the 

Caremark Contract might suggest they should] and whether or not that would 

provide justification is a question of fact for this jury to determine.”36 On the tolling 

issue, the Court found that whether Centene was on inquiry notice and, if so, whether 

a diligent inquiry would’ve uncovered facts sufficient to assert the breach claims 

31 Id. at *17-18.

32 Id. at *16-18.

33 See Rite Aid’s Motion for JMOL (D.I. 349); May 17, 2023 Trial Transcript (“May 17 Trial 

Tr.”) at 4-25 (D.I. 369).

34 Rite Aid’s Motion for JMOL at 2-6.

35 May 17 Trial Tr. at 25-29.

36 Id. at 27.
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were both disputed questions of fact for the jury to decide.37 

During trial, Rite Aid presented two main defenses—statute of limitations

(with no tolling exception thereto) and voluntary payment. At the close of all the 

evidence, Rite Aid renewed its motion for judgment as a matter of law. Centene

countered with its own request for judgment as a matter of law on all claims.

38

 Rite 

Aid renewed its previous motion and added arguments relating to price-matching 

and damages.39 The Court denied both motions, noting “[s]o much of this [case] 

relies on the credibility of the witnesses,” and “the Court simply cannot say as to any 

of the claims or defenses that a reasonable jury must find as a matter of law that there 

is no legally sufficient evidentiary basis to make counter findings.”40 The following 

trial day, the parties presented closing arguments and the jury deliberated.

The jury’s verdict favored Rite Aid. Namely, the jury found Rite Aid 

succeeded on both its defenses.41 This finding, in effect, mooted the breach-ofcontract claims.42

 The finding also narrowed the time period for the unjust 

enrichment claim,43 which the jury found Centene did not prove by a preponderance 

37 Id. at 28-29.

38 May 19, 2023 Prayer Conference (“May 19 Trial Tr.”) at 3-20 (D.I. 357).

39 Id. at 22-24.

40 Id. at 32.

41 Verdict Form at 33, 37 (D.I. 354).

42 See id. at 34.

43 Id. at 36.
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of the evidence.44 In short, the verdict was a shutout for Rite Aid.

Now before the Court are the parties’ post-trial motions. Rite Aid filed a 

limited motion for costs (“Rite Aid’s Motion”).45 Centene filed a motion for 

judgment notwithstanding the verdict on all three of its claims and on Rite Aid’s 

defenses (“Centene’s Motion”).46 The Centene Motion alternatively requests a new 

trial.

The above is not an exhaustive recitation of the facts and relevant history. So,

the Court will discuss additional facts and proceedings as they become relevant to 

the analysis below.

II. STANDARD OF REVIEW

A. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

At the close of all the evidence, if a party moves for judgment as a matter of 

law under Superior Court Civil Rule 50(a) and the Court does not grant the motion, 

that party may renew its motion post-trial by filing a motion for judgment 

notwithstanding the verdict (“JNOV”) under Civil Rule 50(b).47 When the Court is 

44 Id.

45 See Rite Aid’s Motion for Costs (“Motion for Costs”) (D.I. 361).

46 See Centene’s Motion for Judgment Notwithstanding the Verdict Or, Alternatively, for a New 

Trial (“Centene Motion”) (D.I. 362).

47 See Del. Super. Ct. Civ. R. 50(b) (2023); Chamberlain v. Pyle, 2023 WL 1771013, at *2 (Del. 

Super. Ct. Feb. 6, 2023).
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presented with a JNOV motion, the “trial judge does not weigh the evidence.”48 

Civil Rule 50(b) requires the Court to view the evidence in the light most favorable 

to the non-moving party and determine “whether the evidence and all reasonable 

inferences that can be drawn therefrom could justify” the jury’s verdict.49 To find 

for the moving party, the Court must determine “there is no legally sufficient 

evidentiary basis for a reasonable jury to [have found] for the non-movant.”50 

Accordingly, “if the jury verdict is supported by palpable evidence, it must be 

upheld.”51

B. MOTION FOR A NEW TRIAL

Civil Rule 59 permits the Court to grant a new trial for “any of the reasons for 

which new trials have . . . been granted in the Superior Court.”52 The jury’s verdict 

48 Deardoff Assocs., Inc. v. Paul, 2000 WL 1211130, at *2 (Del. Super. Ct. Apr. 27, 2000) (citing 

McCloskey v. McKelvey, 174 A.2d 691, 693 (Del. Super. Ct. 1961) (“[W]hen the Judge considers 

a motion to direct a verdict [i.e., JNOV] he is not required to weigh the evidence.”)).

49 Chamberlain, 2023 WL 1771013, at *2 (quoting Mumford v. Paris, 2003 WL 231611, at *2 

(Del. Super. Ct. Jan. 31, 2003)); see also Deardoff Assocs., Inc., 2000 WL 1211130, at *2 

(“Superior Court Civil Rule 50(b) requires that the Court consider the evidence in a light most 

favorable to the non-moving party.” (citing Parks v. Ziegler, 221 A.2d 510, 511 (Del. 1996))).

50 Mumford, 2003 WL 231611, at *2 (cleaned up) (quoting Brown v. Liberty Mutual Ins. Co., 

774 A.2d 232, 245 (Del. 2001)); Deardoff Assocs., Inc., 2000 WL 1211130, at *2 (citing Eustice 

v. Rupert, 460 A.2d 507, 508-09 (Del. 1983)).

51 Deardoff Assocs., Inc., 2000 WL 1211130, at *2 (citing Gannett Co., Inc. v. Re, 496 A.2d 553, 

557 (Del. 1985)); Mumford, 2003 WL 231611, at *2 (“Thus, the factual findings of a jury will not 

be disturbed if there is any competent evidence upon which the verdict could reasonably be based.” 

(emphasis in original) (quoting Delaware Elec. Coop., Inc. v. Pitts, 1993 WL 445474, at *1 (Del. 

Oct. 22, 1993))).

52 Del. Super. Ct. Civ. R. 59(a) (2023); Deardoff Assocs., Inc., 2000 WL 1211130, at *4.
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is presumed to be correct.53 “When considering a motion for a new trial, the Superior 

Court must give enormous deference to the jury’s verdict, and should not set aside 

the jury’s verdict unless a reasonable jury could not have reached the result.”54 The 

Court should not set aside a jury’s verdict unless: (1) “it contradicts the great weight 

of the evidence”; (2) the “jury disregarded the applicable rules of law”; or (3) “the 

jury’s verdict is tainted by legal error committed by the trial court before or during 

the trial.”55 To grant a new trial based on evidentiary rulings, the moving party must 

demonstrate the rulings were incorrect, and “the mistakes constituted significant 

prejudice so as to have denied the [moving party] a fair trial.”56

C. MOTION FOR COSTS

Superior Court Civil Rule 54(d) provides that “costs shall be allowed as of 

course to the prevailing party upon application to the Court within ten (10) days of 

53 Deardoff Assocs., Inc., 2000 WL 1211130, at *4 (citing Lacey v. Beck, 161 A.2d 579, 580 (Del. 

Super. Ct. 1960)); Kelly v. McHaddon, 2002 WL 388120, at *4 (Del. Super. Ct. Mar. 4, 2002) 

(citation omitted).

54 LCT Cap., LLC v. NGL Energy P’rs LP, 249 A.3d 77, 90 (Del. 2021) (cleaned up) (citations 

omitted); Storey v. Camper, 401 A.2d 458, 465 (Del. 1979) (“[O]n weight of the evidence motions, 

we hold that a trial judge is only permitted to set aside a jury verdict when in his judgment it is at 

least against the great weight of the evidence. In other words, barring exceptional circumstances, 

a trial judge should not set aside a jury verdict on such ground unless, on a review of all the 

evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury 

could not have reached the result.”).

55 Kelly, 2002 WL 388120, at *4 (citing Camper, 401 A.2d at 465); Storey v. Castner, 314 A.2d 

187, 193 (Del. 1973); DuPhilly v. Delaware Elec. Coop., Inc., 662 A.2d 821, 833-34 (Del. 1995)).

56 O’Riley v. Rogers, 69 A.3d 1007, 1010 (Del. 2013) (internal quotation marks and citation 

omitted).
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entry of final judgment unless the Court otherwise directs.”57 Awarding costs is a 

matter of judicial discretion,58 but, generally, the prevailing party is entitled to 

costs.59

III. PARTIES’ CONTENTIONS

Centene moves for JNOV on its three claims and Rite Aid’s two defenses. On 

the unjust enrichment claim, Centene insists it proved all elements, and, specifically, 

Rite Aid had no justification for not reporting Program prices and Price-Matching 

Policy prices as U&C.60 Regarding its breach-of-contract claims, Centene maintains 

it proved all elements.61 Centene next contends the great weight of the evidence 

established the inherently unknowable doctrine and fraudulent concealment doctrine 

tolled the statute of limitations.62 Centene finally contends Rite Aid did not prove 

its voluntary payment defense because Rite Aid did not introduce evidence that 

Centene knew of Rite Aid’s U&C reporting practices.63

57 Del. Super. Ct. Civ. R. 54(d) (2023).

58 Phelps v. West, 2018 WL 1341704, at *1 (Del. Super. Ct. Mar. 15, 2018) (citing Olson v. ADel Constr. Co., Inc., 2014 WL 1325909, at *1 (Del. Super. Ct. Feb. 12, 2014)).

59 Id. (citing Bodley v. Jones, 65 A.2d 484, 487 (Del. Ch. 1948)).

60 See Centene Motion at 4-10.

61 See id. at 11-12.

62 See id. at 12-14.

63 See id. at 14-15.
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Alternatively, Centene moves for a new trial on all issues. Centene contends 

Rite Aid’s counsel improperly insinuated this case was “manufactured” by 

Centene’s trial counsel, which tainted the verdict.

64

 Next, Centene contends the 

Court prevented Centene from fairly responding to Rite Aid’s “misleading” 

testimony and arguments.65

Rite Aid moves for costs. Rite Aid specifically seeks: (1) “[c]ourt, filing and 

e-service fees”; (2) “[s]ervice of process” costs; and (3) “[t]rial technology fees.”66 

Rite Aid asks for a total of $15,181.67.67

IV. DISCUSSION

A. CENTENE IS NOT ENTITLED TO JNOV.

As Centene properly notes, a motion for JNOV under Rule 50(b) is subject to 

the same standard as a motion for a directed verdict made post-trial.

68

 Centene also 

properly notes the Court denied both parties’ motions for judgment as a matter of 

law (i.e., directed verdict) at the close of all the evidence.69 In that ruling, the Court 

observed “[s]o much of this [case] relies on the credibility of the witnesses.”70 Since 

64 See id. at 15-22.

65 See id. at 22-34.

66 See Motion for Costs at 3.

67 See id.

68 Deardoff Assocs., Inc., 2000 WL 1211130, at *2; see also Centene Motion at 3.

69 Centene Motion at 20.

70 May 19 Trial Tr. at 32.
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then, almost nothing has changed. The facts are the same. The standard is the 

same.71 What differs now is that the jury has made the credibility and evidenceweighing determinations Centene asked of it. And, at this point, the Court must 

afford considerable weight to those calls. Accordingly, the Court’s ruling remains 

the same—Centene’s motion for JNOV is denied.

1. No JNOV on the Statute of Limitations Exceptions

Centene contends it should be granted JNOV that the inherently unknowable 

and fraudulent concealment doctrines apply to toll the statute of limitations.72 Rite 

Aid says substantial evidence supports the jury’s finding that Centene failed to prove 

either exception.

73

Regarding the inherently unknowable doctrine, the “statute is tolled where the 

injury is ‘inherently unknowable and the claimant is blamelessly ignorant of the 

wrongful act and the injury complained of.’”

74

 If such a circumstance arises, the 

statute starts to run “upon the discovery of facts ‘constituting the basis of the cause 

of action or the existence of facts sufficient to put a person of ordinary intelligence 

71 See Deardoff Assocs., Inc., 2000 WL 1211130, at *2 (“Since a motion for judgment 

notwithstanding the verdict under Rule 50(b) is a renewal of a motion for directed verdict made 

post-trial, it is subject to the same standard applied to test the latter.” (citation omitted)).

72 Centene Motion at 12.

73 Rite Aid’s Answering Brief in Opposition to Centene’s Motion for Judgment Notwithstanding 

the Verdict or, Alternatively, a New Trial (“Rite Aid Answer”) at 14 (D.I. 374).

74 Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004) (quoting Coleman 

v. Pricewaterhousecoopers, LLC, 854 A.2d 838, 842 (Del. 2004)).
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and prudence on inquiry which, if pursued, would lead to the discovery’ of such 

facts.”75

By way of example here, Don Nagy, former senior vice president of network 

management at a Centene entity, testified for Centene.76 Mr. Nagy was responsible 

for contracting with pharmacies, which included “ensuring that the contractual 

language was appropriate.”77 Rite Aid’s counsel cross-examined Mr. Nagy 

regarding a November 3, 2010 email exchange between Mr. Nagy and an HEB 

employee.78 HEB is a regional grocery chain.79 HEB had created a discount card 

program and Mr. Nagy inquired about it.80 The HEB employee reported that “[n]one 

75 Coleman, 854 A.2d at 842 (emphasis in original) (quoting Becker v. Hamada, Inc., 455 A.2d 

353, 356 (Del. 1982)). Centene appears to suggest that Delaware courts have set a low standard 

for the inherently unknowable doctrine. See Centene Motion at 12. Centene cites Serviz, Inc. v. 

ServiceMaster Co., LLC, 2022 WL 1164859, at *5 (Del. Super. Ct. Apr. 19, 2022). Serviz, Inc. 

states that “[n]o doubt, our Supreme Court has set a ‘low threshold for the use of the doctrine of 

inherently unknowable injury.’” Serviz, Inc., 2022 WL 1164859, at *5 (quoting Certainteed Corp. 

v. Celotex Corp., 2005 WL 217032, at *9 (Del. Ch. Jan. 24, 2005)). But both Serviz, Inc. and 

Certainteed Corp. dealt with this doctrine at the motion to dismiss stage—where the standard is 

reasonable conceivability of success on a claim or defense—not post-trial. See, e.g., Saunders v. 

Lightwave Logistics, Inc., 2023 WL 4851630, at *5 (Del. Super. Ct. July 28, 2023) (explaining 

and applying the “low threshold on what a plaintiff must demonstrate to survive a motion to 

dismiss” when finding that plaintiff “ha[d] alleged facts sufficient to put the Defendants on notice 

of his claim” of a tolling exception and had “alleged enough facts that it is reasonably conceivable 

he might well gain tolling of the statute of limitations he faces”). Centene’s argument is 

unavailing; at trial, it had to prove by a preponderance of the evidence that the exception applied.

76 May 10, 2023 Trial Transcript (“May 10 Trial Tr.”) at 113-14 (D.I. 348).

77 Id. at 114.

78 Id. at 143.

79 Id. at 135.

80 Id. at 143-44.
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of the discounts slash pricing related to [HEB’s discount card] program are in the 

HEB pricing database dispensing system as they do not represent [HEB’s] U&C.”81

Thus, there is a legally sufficient evidentiary basis for the jury to have found 

Centene had facts sufficient to put Centene on notice that pharmacies, like Rite Aid, 

were not reporting discount card program prices, like Program prices, as U&C as 

early as November 2010—nine years before this action was filed. Centene insists

the evidence warrants a contrary result.82 But inquiries into the statute of limitations 

and its exceptions are often fact-specific.83 And, if anything, the statute of 

limitations exceptions boiled down to credibility determinations, which were the 

sole province of the jury.84

The same is true with respect to Centene’s fraudulent concealment theory. 

Centene argued to the jury that Rite Aid sought to “reduce the visibility” of its 

Program so Rite Aid could report inflated U&C to Centene.85 Centene, now, cites 

81 Id. at 145.

82 See Centene Motion at 12-13.

83 See Van Lake v. Sorin CRM USA, Inc., 2013 WL 1087583, at *8 (Del. Super. Ct. Feb. 15, 

2013) (stating that application of the “discovery rule” for statute of limitations is “necessarily factspecific”).

84 See Washington v. State, 4 A.3d 375, 381 (Del. 2010) (Ridgely, J., dissenting) (“Conflicts in 

the evidence, the determination of the credibility of the witnesses and the weight to be given their 

testimony are within the peculiar province of the jury.”); Messina v. Sipple, 1993 WL 478080, at 

*1 (Del. Nov. 15, 1993) (“Credibility determinations are uniquely within the province of the jury 

as the trier of fact and the Court is bound by a jury verdict where there is some evidence to support 

it.” (citing Camper, 401 A.2d at 465)).

85 See Centene Motion at 13-14.
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not testimony but relies mainly on various joint exhibits—the weight of which was 

left to the jury to ascribe.

86

 The jury could (and obviously did) reject Centene’s 

theory of fraudulent concealment if it found that evidence unconvincing.

87

 As with 

any other matter of evidence-weighing, “[i]t is not for the Court to decide [what] the 

jury should have chosen to credit or discredit.”88

2. No JNOV on the Unjust Enrichment Claim

Centene says the Caremark Contract’s language did not exclude Program 

prices and Price-Matching Policy prices from its U&C definition.89 Centene further 

says Centene was impoverished, Rite Aid was enriched, and there was no basis for 

the jury to conclude Rite Aid had any justification for its actions.90 Rite Aid counters 

the trial evidence supports the jury’s finding that Rite Aid’s actions were justified,91

and the jury could have reasonably concluded Centene failed to prove an enrichment 

and an impoverishment.92

86 See id. (citing JX017, JX019, JX072).

87 See, e.g., Stimson v. A.O. Smith Corp., 2020 WL 7631659, at *3 (Del. Super. Ct. Dec. 22, 2020) 

(“This Court abides by the principle that a ‘jury is entitled to evaluate the testimony and to accept 

the portion it finds to be believable and to reject the balance.’” (quoting Lee v. A.C. & S. Co., 1987 

WL 16746, at *1 (Del. Super. Ct. July 22, 1987))).

88 Id. (citation omitted).

89 Centene Motion at 5-6.

90 Id. at 6-10.

91 Rite Aid Answer at 4-7.

92 Id. at 7-10.
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“Unjust enrichment is the ‘unjust retention of a benefit to the loss of another, 

or the retention of money . . . of another against the fundamental principles of justice 

or equity and good conscience.’”93 “The elements of unjust enrichment are: (1) an 

enrichment, (2) an impoverishment, (3) a relation between the enrichment and 

impoverishment, [and] (4) the absence of justification.”94

There is a legally sufficient evidentiary basis for the jury to have found 

Centene did not prove its unjust enrichment claim. First, trial produced evidence 

that Rite Aid was justified in not reporting its Program prices as U&C under the 

Caremark Contract. Brian Correia, senior vice president of network services at 

Caremark,95 testified as a third-party witness. Rite Aid’s counsel asked Mr. Correia: 

“Does Caremark consider a person who was an enrolled member of the Rite Aid 

[Program] to be a customer paying cash under the [U&C] definition of the . . . 

Caremark [C]ontract?”96 Mr. Correia responded “[n]o, [Caremark] did not.”97 Rite 

93 Frederick Hsu Living Tr. v. ODN Hldg. Corp., 2017 WL 1437308, at *42 (Del. Ch. Apr. 14, 

2017) (quoting Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988)).

94 Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010) (citation omitted). There is a fifth 

element—absence of remedy provided by law—that is jurisdictional. See St. Search P’rs, L.P. v. 

Ricon Int’l, L.L.C., 2005 WL 1953094, at *3 (Del. Super. Ct. Aug. 1, 2005).

95 May 11, 2023 Trial Transcript (“May 11 Trial Tr.”) at 7 (D.I. 351).

96 Id. at 22-23.

97 Id. at 23. Only the Program, not the Price-Matching Policy, is relevant for this analysis. The 

statute of limitations bars claims arising before December 23, 2016. See Compl. (having a filing 

date of December 23, 2019); see also DEL. CODE ANN. tit. 10, § 8106(a) (2016) (noting that 

contract claims are subject to a three-year statute of limitations period); Ocimum Biosolutions 

(India) Ltd. v. AstraZeneca UK Ltd., 2019 WL 6726836, at *8 (Del. Super. Ct. Dec. 4, 2019) (“In 

Delaware, the statute of limitations for breach of contract or unjust enrichment is 3 years.”). The 
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Aid’s counsel next asked whether Caremark considered a Program member to be a 

“cash paying customer.”98 Mr. Correia responded Caremark did not.99 Rite Aid’s 

counsel asked Mr. Correia: “Did Caremark consider the [Program] to be an 

applicable discount under the [U&C] definition of the . . . Caremark [C]ontract?”100 

Mr. Correia responded “[n]o, [Caremark] did not.”101

William Wolfe, a Rite Aid employee from 1998 until 2011 who worked as 

Rite Aid’s senior vice president of managed care and government affairs,102 testified 

for Rite Aid. Rite Aid’s counsel asked Mr. Wolfe: “Except for the Federal Employee 

Program, did Rite Aid and Care[m]ark share the same understanding that . . . 

Program prices did not have to be submitted as usual and customary under the 

[Caremark] [C]ontract?”103 Mr. Wolfe responded affirmatively to that question.104 

Trial produced evidence that Rite Aid was justified when it did not report its Program 

prices as U&C under the Caremark Contract.

Price-Matching Policy ended in 2015. May 18, 2023 Trial Transcript (“May 18 Trial Tr.”) at 73 

(D.I. 370).

98 May 11 Trial Tr. at 23.

99 Id.

100 Id. at 23-24.

101 Id. at 24.

102 May 18 Trial Tr. at 8-9.

103 Id. at 48. Mr. Wolfe explained that the Federal Employee Program (“FEP”) was different than 

the Caremark Contract because the FEP demanded a change to the definition of U&C in the FEP 

contract, and such change was “very specific, and for the purposes only of FEP.” Id. at 48-49.

104 Id. at 48.
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According to Centene, trial produced “a mountain of evidence and testimony” 

showing Program prices were included in the Caremark Contract’s U&C 

definition.105 Maybe so, but when the jury is presented with conflicting testimony, 

the “jury is entitled to evaluate the testimony and to accept the portion it finds to be 

believable and to reject the balance.”106 The jury did that here—the Court doesn’t

decide whom the jury should’ve believed or not.

107

Lastly, there is a legally sufficient evidentiary basis for the jury to have found 

Centene did not prove an enrichment to Rite Aid. Michael Petron testified as 

Centene’s damages expert. Rite Aid’s counsel questioned Mr. Petron’s damages 

calculations by asking: “[I]s the amount [Centene] paid to Caremark the same as the

amount . . . that Rite Aid received?”108 To which Mr. Petron responded “[n]ot 

necessarily.”109 Mr. Petron further responded he “agree[d] with the general premise 

that Caremark had a spread which means that the amounts paid to it by [Centene] 

were different than the amounts paid ultimately to Rite Aid.”110 This is relevant to 

proving enrichment because Mr. Petron evaluated only what Centene paid to 

105 Centene Motion at 7.

106 Stimson, 2020 WL 7631659, at *3 (quoting Lee, 1987 WL 16746, at *1).

107 Id. (citing Beatty v. Smedley, 2003 WL 23353491, at *3 (Del. Super. Ct. Mar. 12, 2003)).

108 May 16, 2023 Trial Transcript (“May 16 Trial Tr.”) at 123 (D.I. 366).

109 Id.

110 Id. at 123-24.
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Caremark, not what Rite Aid ultimately received.111 Put in Mr. Petron’s own words: 

“[Mr. Petron’s] analysis is based upon how much Centene overpaid, not how much 

Rite Aid received as a result of its usual and customary practice.”112 There was 

evidence for the jury to conclude Centene did not adequately prove Rite Aid’s 

enrichment. What’s more, given the weaknesses demonstrated therein, the jury was 

free to discredit Mr. Petron’s analysis altogether.

113

 

3. No JNOV Regarding Voluntary Payment

Centene contends Rite Aid failed to prove Centene had full knowledge of Rite 

Aid’s U&C reporting practices, and, therefore, Rite Aid failed to prove its voluntary 

payment defense.114 Rite Aid maintains substantial evidence supports the jury’s 

finding that Rite Aid established Centene’s voluntary payment.115

The voluntary payment doctrine evolved from unjust enrichment law.116 The 

doctrine bars recovery for “payment voluntarily made with full knowledge of the 

111 See id.; see also id. at 122-23.

112 Id. at 131.

113 See Washington, 4 A.3d at 381 (Ridgely, J., dissenting) (“Conflicts in the evidence, the 

determination of the credibility of the witnesses and the weight to be given their testimony are 

within the peculiar province of the jury.”); see also Beatty, 2003 WL 23353491, at *3 (observing 

that even with unrebutted expert testimony, when there is a reasonable basis to conclude the 

opinions given were not reliable or credible, the jury may properly exercise its prerogative to reject 

that expert’s testimony in whole).

114 Centene Motion at 14.

115 See Rite Aid Answer at 14. Rite Aid, for its part, gave the voluntary payment issue short shrift 

in its briefing.

116 Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *15 n.140 (Del. Super. Ct. Aug. 

16, 2021) (citing Home Ins. Co. v. Honaker, 480 A.2d 652, 652-54 (Del. 1984)).
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facts.”117 The doctrine prevents the “counterparty from claiming that a 

‘misapprehension of its legal rights and obligations’ caused it to make payments by 

mistake.”118 Money “paid due to a mistake of law is not recoverable, while money 

paid under a mistake of fact may be recovered . . . under an unjust enrichment 

theory.”119 This Court has considered voluntary payment to be a defense to unjust 

enrichment claims and breach-of-contract claims.120 At bottom, the existence 

voluntary payment is a factual inquiry.121

From the jury’s perspective, based on the verdict form, the voluntary payment 

doctrine was relevant to only Centene’s unjust enrichment claim, and only from 

December 23, 2016, until the filing of this action.122 Stated differently, because the 

jury found the statute of limitations applied, the voluntary payment doctrine stood 

to bar only the unjust enrichment claim. As discussed above, the jury had a legally 

117 W. Nat. Gas Co. v. Cities Serv. Gas Co., 201 A.2d 164, 169 (Del. 1964); Intermec IP Corp., 

2021 WL 3620435, at *15 (quoting W. Nat. Gas Co., 201 A.2d at 169).

118 Intermec IP Corp., 2021 WL 3620435, at *15 (cleaned up) (quoting Winshall v. Viacom Int’l, 

Inc., 2019 WL 960213, at *15 (Del. Super. Ct. Feb. 25, 2019)).

119 Home Ins. Co., 480 A.2d at 653.

120 Intermec IP Corp., 2021 WL 3620435, at *15 n.140 (citing Winshall, 2019 WL 960213, at 

*15; Nieves v. All Star Title, Inc., 2010 WL 2977966, at *6-8 (Del. Super. Ct. July 27, 2010)).

121 See, e.g., W. Nat. Gas Co., 201 A.2d at 169 (“The question is basically one of fact[.]”); 

Intermec IP Corp., 2021 WL 3620435, at *16 (“The inquiry looks to the totality of the 

circumstances[.]”).

122 See Verdict Form at 36-37 (noting that if the jury found that no tolling exception applied to 

toll the statute of limitations, only claims from December 23, 2016, and forward remained viable, 

and also noting that part of Centene’s unjust enrichment claim was the only claim for that 

circumscribed time period).
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sufficient evidentiary basis to find Centene did not prove its unjust enrichment claim. 

A finding for Rite Aid on voluntary payment was, therefore, not dispositive; rather, 

the jury’s finding further buttressed against Centene’s unjust enrichment claim.

4. No JNOV Regarding the Breach-of-Contract Claims

Centene contends it should be granted JNOV on both the breach of the 2003 

Contract claim and breach of the 2013 Contract claim.123 But, counters Rite Aid, the 

jury found the statute of limitations barred both breach claims.124

The jury never reached Centene’s breach claims on the verdict form because 

the jury’s finding on the statute of limitations barred them. To grant Centene’s 

JNOV request on the breach claims would in effect upend the entire verdict, reach 

questions the jury never did, and wholly accept and substitute in Centene’s view of 

its claims. The Court finds no basis to do that. With respect to the claims and 

defenses discussed above, the Court has determined the verdict is “supported by 

palpable evidence.”125 The verdict, thus, “must be upheld.”126

Centene’s Motion for JNOV is DENIED.

123 See Centene Motion at 11-12.

124 See Rite Aid Answer at 10-11.

125 Deardoff Assocs., Inc., 2000 WL 1211130, at *2 (citing Gannett Co., Inc., 496 A.2d at 557).

126 Id. (citing Gannett Co., Inc., 496 A.2d at 557).
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B. CENTENE IS NOT ENTITLED TO A NEW TRIAL.

Apart from JNOV, Centene alternatively requests a new trial. Centene says a 

new trial is necessary because (1) the jury’s verdict is contrary to the great weight of 

the evidence, (2) Rite Aid’s counsel made several improper comments, and (3) the 

Court’s evidentiary rulings constitute plain legal errors “that resulted in an unfair 

trial and may have tainted the jury’s verdict.”127 Rite Aid responds its comments 

were supported by the trial record and the Court’s evidentiary rulings were sound.128

To reiterate, on a motion for a new trial under Civil Rule 59, “[t]he jury’s 

verdict is presumed to be correct.”129 And that verdict is entitled to “enormous 

deference.”130 Indeed, the Court cannot set aside a jury’s verdict unless, beyond 

doubt: (1) “it contradicts the great weight of the evidence”; (2) the “jury disregarded 

the applicable rules of law”; or (3) “the jury’s verdict is tainted by legal error 

committed by the trial court before or during the trial.”131

127 Centene Motion at 15.

128 Rite Aid Answer at 18.

129 Galindez v. Narragansett Hous. Assocs., L.P., 2006 WL 3457628, at *1 (Del. Super. Ct. Nov. 

28, 2006); see also Smack-Dixon v. Wal-Mart, Inc., 2023 WL 525062, at *1 (Del. Super. Ct. Jan. 

25, 2023).

130 Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997); see also Crist v. Connor, 2007 WL 2473322, 

at *1 (Del. Super. Ct. Aug. 31, 2007) (citing Young, 702 A.2d at 1236).

131 Kelly, 2002 WL 388120, at *4 (citing Camper, 401 A.2d at 465; Castner, 314 A.2d at 193; 

DuPhilly, 662 A.2d at 833-34).
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1. Centene Is Not Entitled to a New Trial Based 

on the Weight of the Evidence.

 Again, “[e]very analysis of a motion for a new trial must begin with the 

presumption that the jury verdict is correct.”132 And the Court simply will not grant 

a new trial on weight-of-the-evidence grounds unless “the evidence preponderates 

so heavily against the jury verdict that a reasonable juror could not have reached the 

result.”133 The Court has explained through the JNOV discussion, above, that is not 

so here. Centene’s first ground for a new trial fails.

2. Centene Is Not Entitled to a New Trial Based 

on Comments by Rite Aid’s Counsel.

Centene next contends Rite Aid’s counsel made insinuations that the case was 

manufactured by Centene’s trial counsel. Centene complains these insinuations 

were improper and prejudicial134 relying on Putney v. Rosin135 for its argument.

Putney was a personal injury trial.

136

 In Putney, the plaintiff asserted a claim 

for personal injury arising from an assault committed by the defendant. The jury 

returned a verdict for the plaintiff in an amount less than expected.137 The plaintiff 

132 Smith v. Lawson, 2006 WL 258310, at *6 (Del. Super. Ct. Jan. 23, 2006) (citing Mills v. 

Telenczak, 345 A.2d 424, 426 (Del. 1975)).

133 Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001) (quoting Camper, 401 A.2d at 465).

134 Centene Motion at 15.

135 791 A.2d 902 (Del. Super. Ct. 2001).

136 See id. at 903.

137 Id.
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moved for a new trial on two grounds: the verdict was against the great weight of 

the evidence; and the defense counsel made improper, prejudicial comments in his 

opening statement and closing argument.138 Centene relies on Putney for the 

improper-prejudicial- comments analysis.

This Court granted a new trial in Putney. There, the defense counsel stated in 

closing argument that the plaintiff’s attorney “manufactured” the plaintiff’s claim, 

which this Court took as an implication that the plaintiff and his attorney fabricated 

the causal connection between the assault and the plaintiff’s resulting health 

issues.139 The “manufactured” “argument [was] not supported by the record at 

all.”140 And this Court found, in context, the comments were highly improper and 

prejudicial.141

This Court explained further in Putney: (1) the case was “clearly a close one,” 

(2) the improper comments affected a central issue of causal connection between the 

assault and resulting health issues, and (3) the prejudice to the plaintiff was so strong 

that no mitigative efforts would’ve cured it.142 Resultingly, a new trial was 

138 Id.

139 Id. at 905.

140 Id.

141 Id. at 906.

142 Id.
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granted.

143

Centene contends this case is like Putney and focuses primarily on Rite Aid’s 

counsel’s closing argument that included the following:

• “The beauty of the jury system is that . . . [i]t allows you to judge what the 

parties knew in real time as compared to telling you a whopper of a story 

after being propped up by lawyers with an interest in this case.”144

• “The only person who cared are these lawyers, and the legal department at 

Centene said let’s turn it into something.”145

• “It’s really insulting isn’t it, to hear from Mr. Correia and the Rite Aid 

witnesses as to how the contract worked between Caremark and Rite Aid? 

And then to have them come in – dozens of lawyers come in and try to say 

it isn’t what those witnesses say, it isn’t what the contracts say. You should 

throw them out. And by putting no on [the verdict form], you do that.”146

• “[Centene] might have come in and said they didn’t know everything. 

Come on. They knew plenty. And voluntary payment means you knew 

enough and you kept paying the same way. I’m not going to let you come 

back once you let – once you got lawyers and change that decision. The 

business people were perfectly happy with the deal they cut. Only the 

lawyers don’t like it. So you [write] yes on that [verdict form] when you 

get to Section D.”147

• “The record shows the Centene-Envolve business people are [ec]static 

with the deal they’ve covered and handled their claims back then. They 

had no complaints. But now after the fact here come the lawyers, not the 

business people.”148

143 Id. at 907.

144 May 22, 2023 Trial Transcript (“May 22 Trial Tr.”) at 69 (D.I. 365).

145 Id. at 92.

146 Id. at 121.

147 Id. at 121-22.

148 Id. at 124-25.
-27-

• “Tell those lawyers that before you waste a jury’s time read your contracts 

ahead of time. Tell Centene no. It’s a money grab, it’s always been a 

money grab. Now Rite Aid needs your help to tell Centene no.”149

Interestingly, while these comments are now called out individually and 

collectively as grounds for a new trial, not one contemporaneous objection was made 

about them during closing argument. The first complaint on such was made via this 

new trial motion. So, the Court’s opportunity to cure any supposed error that might 

scuttle the work of the parties, the Court, and the jury in real time was wasted. 

Instead, Centene’s counsel sat on their hands in the face of what is claimed to be 

obvious, verdict-tainting behavior during closing only to pull them out now to pen 

this motion when no possible curative action is available. That’s not only 

disappointing, it’s improper trial and motion practice.150

149 Id. at 126.

150 See Koutoufaris v. Dick, 604 A.2d 390, 400 (Del. 1992) (“[T]he failure of opposing counsel to 

make a contemporaneous objection deprived the trial judge of the opportunity to deal with the 

problem when it arose. Such inaction is deemed a waiver of any resulting error for appellate 

purposes.” (emphasis added)); Med. Ctr. of Delaware, Inc. v. Lougheed, 661 A.2d 1055, 1060 

(Del. 1995) (“A party must timely object to improper statements made during closing argument in 

order to give the trial court the opportunity to correct any error.”); Gen. Motors Corp. v. Grenier, 

981 A.2d 531, 541 n.27 (Del. 2009) (“This Court has consistently required that any objections be 

made contemporaneously.”); see also Cohen-Thomas v. Lewullis, 2016 WL 721009, at *4 (Del. 

Super. Ct. Jan. 29, 2016):

Despite their failure to object at trial, Plaintiffs now come before the Court urging 

that a legal error occurred . . . . Were the Court to grant this Motion, the practical 

effect of Plaintiffs’ conduct is that Plaintiffs could make a strategic decision not to 

object at trial with the hope of receiving a favorable verdict, but if Plaintiffs

received an unfavorable jury verdict, they would be assured of a new trial before a 

new jury with the possibility of a different outcome. The Court will not 

retroactively cure any perceived mistake created by trial counsel’s failure to object 

at trial.
-28-

Centene also takes issue with Rite Aid referring to this action in opening as a 

“recovery opportunity,”

151 and Rite Aid’s reference during trial to “a law firm based 

in Washington, D.C., a large law firm.”152

Centene’s argument that this case is like Putney is off base. In Putney, the 

defense counsel’s comment that the claim was “manufactured” was one “not 

supported by the record at all.”153 Rite Aid’s counsel’s comments while perhaps not 

all praisable were, by contrast, supported by the record. 

Regarding the “lawyer” comments, Michael Baca, Health Net’s former senior 

vice president of pharmacy networks and a Centene witness,154 testified regarding 

Centene’s legal department. Namely, Rite Aid’s counsel asked Mr. Baca how Mr. 

Broughton v. Wong, 2018 WL 1867185, at *8 (Del. Super. Ct. Feb. 15, 2018) (explaining that 

“[p]arties must make contemporaneous objections at trial” and noting that granting the relief of 

new trial citing unobjected-to evidence or events provides “a retroactive cure that could encourage 

gamesmanship”).

Centene’s resort to this Court’s recent decision in Conduent State Healthcare, LLC v. AIG 

Specialty Insurance Co., 2023 WL 2256052 (Del. Super. Ct. Feb. 14, 2023), for the proposition it 

should be excused from the contemporaneous-objection rule is unavailing. In Conduent, the Court 

noted that although plaintiff’s counsel did not object during closing argument, plaintiff’s earlier 

objections on the specific issue were preserved in that instance. 2023 WL 2256052, at *5. But 

the exceptionality of the circumstances in Conduent are thoroughly explained by the trial judge 

and probably best condensed to her simple opening sentence: “In almost 20 years on this bench, I 

have never set aside a jury verdict.” Id. at *4-12, *1. This Court’s decisions in Cohen-Thomas and 

Broughton are more instructive here. 

151 See Centene Motion at 16; May 8, 2023 Trial Transcript (“May 8 Trial Tr.”) at 129-31 (D.I. 

347).

152 See Centene Motion at 16; see, e.g., May 9, 2023 Trial Transcript (“May 9 Trial Tr.”) at 134, 

94-102 (D.I. 367).

153 Putney, 791 A.2d at 905.

154 May 8 Trial Tr. at 142.
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Baca heard Rite Aid was excluding its Program prices from its U&C reporting 

practices.

155

 Mr. Baca responded Centene’s “internal legal department came to [Mr. 

Baca] with some concerns.”156 Mr. Baca testified he had not heard of any issues and 

had no concerns regarding Rite Aid’s reporting practices before that time.157 

Additionally, regarding the “law firm” comments, Mr. Baca agreed Health Net was 

assisted by a “large Washington, D.C. law firm” in its negotiations with Caremark.158 

Finally, regarding the “recovery opportunity” comments, Tim Emert, Centene’s 

corporate representative, agreed Centene “expected a recovery” and agreed this 

lawsuit was a “recovery opportunity.”159 Rite Aid’s counsel’s statements were 

supported by the record.

Make no mistake, the Court is not holding up each of Rite Aid’s closer’s 

statements (or the delivery thereof) as exemplary or laudable. But even if Rite Aid’s 

counsel’s comments were found improper, a new trial is not per se warranted. To 

“determine whether a new trial is called for in connection with improper comments, 

the trial court must determine whether the improper comments prejudicially affected 

155 May 9 Trial Tr. at 88.

156 Id.

157 Id. at 89, 139.

158 Id. at 134-35, 137-38.

159 May 10 Trial Tr. at 55-56.
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[Centene’s] substantial rights.”

160

 The Court must now consider: “(1) the closeness 

of the case, (2) the centrality of the issue affected by the improper comments, and 

(3) steps taken in mitigation.”161

It seems in the jury’s collective mind, this case was not close—the verdict 

form reflects that. The jury found for Rite Aid in every possible way. Specifically, 

the jury found: Centene did not prove an exception tolled the statute of limitations; 

Centene did not prove its unjust enrichment claim; and Rite Aid proved Centene’s 

claims were barred by the voluntary payment doctrine.162 While Centene posits the 

jury’s findings can’t be trusted in light of the complained-of closing statements, there 

was real and credible record evidence supporting each facet of those verdicts. 

Centene suggests the Court’s denial of both parties’ motions for directed 

verdict at the close of the evidence alone demonstrates this was a close case.163 Not 

so. The Court denied those motions because “[s]o much of this [case] relie[d] on the 

credibility of the witnesses.”164 The first factor does not weigh in favor of a new 

trial.

The centrality-of-the-issue factor also does not weigh in favor of a new trial. 

160 Putney, 791 A.2d at 905 (citing Hughes v. State, 437 A.2d 559, 571 (Del. 1981)).

161 Id. (citing Hughes, 437 A.2d at 571).

162 See generally Verdict Form.

163 Centene Motion at 20.

164 May 19 Trial Tr. at 32.
-31-

For its part, Centene’s argument on this factor is unclear. Centene argues Rite Aid’s 

defense strategy was to claim this case was “manufactured” by lawyers.165 Rite Aid 

never used the term “manufactured”; Centene pulled that word from Putney, which 

the Court has stated is distinguishable from this case. Centene says Rite Aid’s 

comments were aimed at deflecting from the claims and defenses at issue.166 

Centene, again, analogizes Putney and says Rite Aid was playing on the public’s 

bias against the legal profession.167 The Court disagrees. At bottom, this was a case 

about contracts, breaches, unjust enrichment, and defenses. The comments of which 

Centene now complains were not central to the issues before the jury.

The final factor—steps taken in mitigation—does not weigh in favor of a new 

trial. Even though Centene prevented more targeted mitigation (if needed), the jury 

was still instructed immediately after the comments now challenged:

What the attorneys say is not evidence. Instead, whatever they say 

is intended to help you review the evidence presented. If you remember 

the evidence differently from the attorneys, you should rely on your 

own recollection.

The role of attorneys is to zealously and effectively advance the 

claims of the parties they represent within the bounds of the law. An 

attorney may argue all reasonable conclusions from evidence in the 

record. It is not proper, however, for an attorney to state an opinion as 

to the truth or falsity of any testimony or evidence. What an attorney 

personally thinks or believes about the testimony or evidence in a case 

165 Centene Motion at 20.

166 See id. at 20-21.

167 Id. at 21 (citing Putney, 791 A.2d at 906).
-32-

is not relevant, and you are instructed to disregard any personal opinion 

or belief offered by any attorney concerning testimony or evidence.168

For this factor, Centene again compare this case to Putney, where this Court 

stated “[a]n accusation in the presence of the jury that the plaintiff’s attorney has 

manufactured the plaintiff’s claim so taints the fairness of the proceeding that no 

instruction can dispel the prejudice.”169 But again, this case is unlike Putney. Rite

Aid’s counsel’s comments were tied to trial evidence and were not, from the Court’s 

perspective, merely some unmoored attempt to play on any negative public

sentiment against the legal profession. This final factor does not favor a new trial.

Centene is not entitled to a new trial based on Rite Aid’s counsel’s comments.

3. Centene Is Not Entitled to a New Trial Based on Its Suggestion 

of Legal Error—i.e., an Improperly Curtailed Cross-Examination.

a. Brian Correia’s Testimony

Centene contends it was prevented from fairly cross-examining Mr. Correia. 

During trial, Mr. Correia was asked by Centene’s counsel: “And you’re providing 

this voluntary testimony for Rite Aid because you and your employer [i.e., Caremark 

and its parent, CVS] have decided it’s in your interest to do so; right?”170 Mr. Correia 

responded: “I was asked to do so, and I willingly came.”171 It appears Centene was 

168 Jury Instructions at 28 (D.I. 352).

169 Putney, 791 A.2d at 906.

170 May 11 Trial Tr. at 69.

171 Id.
-33-

attempting to elicit an answer to show Mr. Correia, in Centene’s estimation, was 

biased for Rite Aid.172 After Mr. Correia responded with the above, Centene sought 

to impeach Mr. Correia with a purported prior inconsistent statement from a 

deposition in a different case.173 The deposition transcript from the other case

contained the following question and answer: “Q[:] . . . . You and your company 

decided that it was in your interest to provide that declaration supporting Rite Aid’s 

position in this [i.e., the other] case. Right? A: Yes.”174

Rite Aid objected, arguing there was no basis to impeach Mr. Correia.175 The 

Court sustained the objection, noting the deposition did not demonstrate the bias or 

prejudice Centene claimed, and further noting its concern that the deposition was 

from a different case with different claims.176

Delaware Rule of Evidence (“DRE”) 607 states that “[a]ny party . . . may 

attack the witness’s credibility.”177 DRE 616 states that “[a] witness’s credibility 

may be attacked with evidence of the witness’s bias, prejudice or interest for or 

against any party to the case.”178 It’s within the trial judge’s discretion to permit or 

172 See Centene Motion at 23.

173 May 11 Trial Tr. at 69.

174 Centene Motion, Ex. 1 at 16.

175 May 11 Trial Tr. at 69.

176 Id. at 72-73.

177 DRE 607 (2023).

178 DRE 616 (2023).
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deny certain types of cross-examination.

179

 But, a judge may not “exercise this 

discretion so as to defeat a party’s right to effective cross-examination.”180 “To 

properly evaluate a witness, a jury must have sufficient information to make a 

discriminating appraisal of a witness’s motives and bias. It is an abuse of discretion 

for a judge to cut off cross-examination if the opportunity to present this information 

is not afforded.”181 As highlighted in Garden v. Sutton,

182 the Delaware Supreme 

Court “has established criteria to guide judicial discretion in this area.”183 The trial 

court must consider:

(1) whether the testimony of the witness being impeached is crucial; 

(2) the logical relevance of the specific impeachment evidence to the 

question of bias; (3) the danger of unfair prejudice, confusion of issues, 

and undue delay; and (4) whether the evidence of bias is cumulative.184

Mr. Correia’s testimony was, without doubt, important. Rite Aid argued to 

the jury that Rite Aid and Caremark both understood Program prices were not 

included as U&C under the Caremark Contract. Mr. Correia was the only Caremark 

representative to testify in this case. Rite Aid says Mr. Correia’s testimony was less

179 See Garden v. Sutton, 683 A.2d 1041, 1043 (Del. 1996); Milton v. State, 2013 WL 2721883, 

at *5 (Del. June 11, 2013).

180 Garden, 683 A.2d at 1043.

181 Id. (cleaned up) (quoting Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995)).

182 683 A.2d 1041 (Del. 1996).

183 Id. (citing Snowden v. State, 672 A.2d 1017, 1025 (Del. 1996); Weber v. State, 457 A.2d 674, 

681 (Del. 1983)).

184 Snowden, 672 A.2d at 1025 (quoting Weber, 457 A.2d at 681).
-35-

crucial because other witnesses testified in step with Mr. Correia on this point.185 

But those witnesses were Rite Aid employees, not Caremark employees.186 

Although Mr. Correia’s testimony was not inconsistent with Rite Aid’s witnesses’ 

testimony, the Court still finds his testimony was, in Garden terms, “crucial”

because he was the only Caremark representative to testify regarding Caremark’s 

understanding of the Caremark Contract.187

The purported impeachment evidence’s logical relevance to the question of 

bias, though, favors Rite Aid. The Court observed when ruling on Rite Aid’s 

objection that there might be an argument of “some, quote, positional or subject 

matter bias” but naturally then there was grave concern because the excerpt on which 

Centene wanted to inquire related to “different claims in a different case.”188 

All agree, Mr. Correia’s transcript from the other case involved different 

parties and different claims. And the only potential “bias” that Centene suggests is 

that Mr. Correia might—because the parent company (CVS) of his own employer

(Caremark) faces U&C allegations like Centene’s against Rite Aid—take a position 

185 Rite Aid Answer at 29.

186 Rite Aid cites testimony of William Wolfe, Ruth Lightner, and Luke Barnes. See Rite Aid 

Answer at 29.

187 See, e.g., Adams v. Aidoo, 2012 WL 1408878, at *17 (Del. Super. Ct. Mar. 29, 2012) (“Where 

a witness was the only eyewitness to a cause of action, besides the opposing party, and the parties’ 

version of events at issue at odds, a case turns on a credibility assessment. In such a case, that 

witness’s testimony is crucial to the disposition of the case.” (internal citations omitted)).

188 May 11 Trial Tr. at 72.
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favorable to Rite Aid on how U&C is interpreted. First, the jury had already heard 

the question-and-answer Centene posed. Mr. Correia’s trial answer here was 

consistent with the deposition in the other litigation. Centene wanted to delve 

deeper. But in the Court’s view, then and now, the logical relevance of the foreign 

deposition in proving either bias or inconsistency was minimal. 

Third, and most important for the circumstances here, the deposition 

testimony’s probative value for bias was substantially outweighed by the danger of 

confusing the issues. The Court made clear, based on a concern of confusing the 

issues, that even though the parties “may have tons of history with these various 

cases . . . we’re going to talk about this case.”189 And unlike garden-variety bias 

evidence, a limiting instruction would have been inadequate to guide the jury 

through the morass that would have been created by entry of this prior deposition

excerpt.190 That’s because any such instruction would have done little to ease the 

confusion and possible prejudice that could occur by opening the issue of other U&C 

lawsuits against Rite Aid and other pharmacies.

189 Id. at 72-73.

190 Cf. Garden, 283 A.2d at 1044 (“Confusion of the issues does not present a problem as long as 

a proper limiting instruction is given confining the jury’s consideration of the evidence to the 

question of credibility.”). Garden concerned a motor vehicle accident. This case, by contrast, 

involved dozens of parties and numerous contractual terms that made the case, on the whole, a 

complicated one. For this reason, the Court required the parties to focus on this case, not the 

various other cases involving the parties.
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Fourth, Mr. Correia had already stated he was testifying in this trial voluntarily 

because he “was asked to do so [by his employer], and [] willingly came,” so

questioning him on his answer in the earlier unrelated deposition was cumulative. 

That said, if, as it has always appeared, Centene again wanted to get aspects of that 

other litigation before this jury then that presentation was not strictly speaking

cumulative.

Giving each factor its appropriate weight, the Court at trial and now finds the 

danger of confusing the issues was paramount in excluding Mr. Correia’s deposition 

testimony from the other case. Additionally, the Court finds there was little 

relevance to the deposition. Excluding the deposition transcript, therefore, was 

proper.191

b. William Wolfe’s Testimony

Mr. Wolfe testified for Rite Aid in this case.192 To reiterate, Mr. Wolfe was a 

Rite Aid employee from 1998 until 2011 and worked as Rite Aid’s senior vice 

191 Centene also argues that the Court erred in excluding Mr. Correia’s deposition from the other 

case for another reason—the deposition somehow demonstrated Mr. Correia’s purported lack of 

candor. Centene Motion at 26. Here, Centene charges Mr. Correia essentially lied to the jury. 

Mr. Correia was asked why he flew across the country to testify at trial. See May 11 Trial Tr. at 

62. Mr. Correia responded: “Well, the document that I believe is relevant to the case, I was the 

author of. You know, Centene is one of [Caremark’s] largest clients; Rite Aid is a provider in our 

network; I felt I should be here.” Id. at 63. In Centene’s singular view, Mr. Correia came to testify 

in a self-serving capacity. Centene Motion at 26-27. But Centene’s own-held conjecture adds 

nothing of substance to determining the admissibility of the evidence it claims was wrongly 

excluded. 

192 May 18 Trial Tr. at 7.
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president of managed care and government affairs.193 Rite Aid’s counsel asked 

Mr. Wolfe if he was aware, when the Program was conceptualized, of possible 

challenges to U&C pricing by payors.194 Mr. Wolfe responded: 

I was aware that there was a risk that payors would use any angle they 

could to reduce generic reimbursement, and one of those vehicles 

would be to change the definition of usual and customary, which, 

unfortunately, FEP did, but no other PBMs or payors during my time at 

Rite Aid, before or after or since had suggested that [the Program] was 

U&C.195

Centene took issue with Mr. Wolfe’s response and sought to question 

Mr. Wolfe about a document that purported to show Rite Aid was submitting 

Program prices as U&C to State Medicaid agencies, which allegedly contradicted 

Mr. Wolfe’s testimony.196 During sidebar, the Court asked Centene’s counsel if the 

document related to PBM and/or payor contracts, or if it related to only State 

Medicaid agencies’ contracts; in context, the Court’s real-time interpretation was 

that Mr. Wolfe was testifying about only PBM contracts.

197

 Centene’s counsel stated 

the document related to State Medicaid agencies’ contracts.

198

 The Court excluded

the evidence because Mr. Wolfe was referring to contracts with PBMs, not contracts 

193 Id. at 8-9.

194 Id. at 139-40.

195 Id. at 140.

196 See id. at 234-35.

197 Id. at 236.

198 Id.
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with State Medicaid agencies that are affected by state regulations.199 In other 

words, the contracts with PBMs and the contracts with State Medicaid agencies were 

“wholly different.”200

Centene now argues that it was prevented from “fairly addressing a 

misleading inaccuracy” in Mr. Wolfe’s testimony highlighted above.201

Mr. Wolfe’s testimony was not misleading or inaccurate. Mr. Wolfe testified 

about PBMs,202 not State Medicaid agencies. Mr. Wolfe’s testimony, thus, was not 

inconsistent, and Centene had no basis to impeach him.

c. Evidence of Centene’s Business and Client Base

Centene’s next proffered basis for a new trial is a charge that Rite Aid’s 

counsel repeatedly made “inflammatory comments” regarding Centene’s business 

and financial position while the Court prohibited Centene from fairly responding.203 

Centene complains Rite Aid’s counsel was permitted to call Centene “a large public 

corporation” “seeking a huge amount of money,” a “gargantuan insurance company” 

199 Id. at 236-37.

200 Id. at 237.

201 Centene Motion at 27.

202 See, e.g., May 18 Trial Tr. at 61-62; see also id. at 80 (“Well, I [i.e., Mr. Wolfe] think we’ve 

already established that there was one program and one program only, FEP, where there was a 

specific conversation around U&C including [Program] price, and in all other instances, during 

my entire tenure and throughout the PBMs and so forth since I left Rite Aid, in no instance has a 

retail discount card that includes enrollment and adjudication been passed as U&C on any PBM 

contract that I’m aware of.”).

203 Centene Motion at 28.
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seeking “a huge windfall,” and a “greedy” company “trying to cash in.”204 Centene 

then argues it suffered prejudice because it wasn’t permitted to respond with 

evidence that many of its members are Medicaid, Medicare, and Affordable Care 

Act members; and Centene provides healthcare services to the elderly and 

underprivileged.205

There are two issues with Centene’s argument. First, as it relates to Rite Aid’s 

counsel’s remarks during his opening statement and closing argument, again, 

Centene didn’t object once. Because Centene did not object, its argument on these 

comments is waived.206 Second, the Court clarified its rulings on this issue the first 

day of trial (and before)—Centene could not present generalized argument or 

evidence of Centene’s ties to Medicare and Medicaid if the evidence was not relevant

to the issues in this case because doing so implicated the “golden rule.”207 

204 See id. at 30

205 Id. at 28-29.

206 See Grenier, 981 A.2d at 541 n.27 (“[The Supreme] Court has consistently required that any 

objections be made contemporaneously. Failure to do so waives any claim of error.”); see also 

Permint v. Kia Motors Am., Inc., 2022 WL 2444755, at *3 (Del. Super. Ct. July 1, 2022) (citing 

Wolhar v. Gen. Motors Corp., 1998 WL 472785, at *3 (Del. Super. Ct. July 1, 1998)); Plant v. 

Rosado, 2012 WL 2107114, at *3 (Del. Super. Ct. June 4, 2012) (“[T]he Court notes that plaintiffs’ 

counsel did not object to defense counsel’s closing argument. He has, therefore, waived the 

[objection].” (citing Grenier, 981 A.2d at 541)).

207 See Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del. 1976) (“[A] ‘golden rule argument’ 

is where counsel asks the jury to place themselves in the shoes of a party to the suit in arriving at 

a verdict, and to render such verdict as they would want rendered in case they were similarly 

situated.” (cleaned up) (citation omitted)).
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Allowing Centene to present untethered argument or evidence of its customer 

base and ties to Medicare and Medicaid, in these circumstances, risked violating now 

well-known and accepted proscriptions. On that, our Supreme Court has instructed 

“it is universally held that [a golden rule] argument is improper and will constitute 

reversible error.”

208

 In the Court’s view, allowing such argument and evidence—

absent direct tie to the specifics of this case—would also run afoul of DRE 403

because the probative value of Centene’s motives for highlighting its customer base 

The Court explained its particular concern on this issue thusly:

Well, if there’s a direct contract reason why [Centene’s connection to Medicare and 

Medicaid] is relevant then that will be discussed with the witness at the time. As 

I’ve said before, I think it’s pretty clear what I don’t want to have happen is that all 

of a sudden there is the [suggestion], [“H]ey, folks, you in the box, we’re 

representing you.[”] You’re [Centene] not. You’re representing insurance carriers 

who, or health care plans now, seeking to recoup money. No, there is no individual 

client of those companies that is a party in this case, so I want to be very clear about, 

as I said, backdoor violating [of] the golden rule.

* * *

Nobody is saying that Medicaid and Medicare are dirty words in this trial. . . . 

[W]hat I want to ensure is I do not want plaintiffs basically up there saying[,

“W]e’re doing this for you and for all Medicaid and Medicare customers or 

patients[.” B]ecause that’s not true, that’s not happening. You’re not—there is not

one thing in this complaint about returning money to anyone other than these 

corporations [the PBMs], that’s what this case is about. So, to the extent that things 

have to be mentioned because they are part of the contract, they do. What I don’t 

want is, again . . . somehow trying to place jurors in the place or their loved ones in 

the places [of Centene or its clients] because we never asked them about any of 

that[. W]e never asked them[, “D]o you rely on Medicaid or Medicare or do your 

loved ones do that.[”] This is [] about a contract dispute and it’s about whether or 

not this corporation [Rite Aid] pays . . . those corporations [Centene entities] money 

and that’s it, okay? 

May 8 Trial Tr. at 136-37.

208 Delaware Olds, Inc., 367 A.2d at 179 (citation omitted).
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was substantially outweighed by the danger of, at least, unfair prejudice and 

misleading the jury.209

Centene’s last legal-error argument takes aim at Rite Aid’s counsel’s 

comments during closing relating to the fact that Centene was seeking pre-judgment 

interest.210 Centene objected. The Court sustained the objection, struck the 

comments from the record, and instructed the jury to disregard those comments.211 

Even so, Centene now argues “the damage was done, the fairness of the trial was 

undermined, and no instruction could rectify the prejudice.”212 Not so. “[T]o cure 

the prejudicial effect of [] improper comments. . . . [g]enerally, a curative instruction 

adequately mitigates any prejudice.”213 That’s what happened here.

4. Centene Is Not Entitled to a New Trial Based 

on Rite Aid’s Counsel’s Other Comments.

Centene advances two final grounds for a new trial: (1) Rite Aid’s counsel 

used the Court’s March 2023 summary judgment Memorandum Opinion and Order

“as substantive evidence”; and (2) Rite Aid’s counsel, during closing argument, 

209 See DRE 403 (2023).

210 Centene Motion at 30.

211 May 22 Trial Tr. at 145.

212 Centene Motion at 30.

213 Estate of Swan v. Balan, 956 A.2d 1222, 1226 (Del. 2008) (citing Dunn v. Riley, 864 A.2d 905, 

909 (Del. 2004)); Revel v. State, 956 A.2d 23, 30 (Del. 2008) (“We have held that an error can 

normally be cured by the use of a curative instruction to the jury, and that jurors are presumed to 

follow those instructions.” (cleaned up)); Pena v. State, 856 A.2d 548, 551 (Del. 2004) (holding 

that “[p]rompt jury instructions are presumed to cure error and adequately direct the jury to 

disregard improper statements”).
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“seized upon” a comment made by the Court during the prayer conference regarding 

prescription drug co-pays.214 Either taken alone, or both taken together, “unfairly 

prejudiced” Centene, so it says.215 Rite Aid says neither merits relief. On the first 

complaint, Rite Aid recounts that: before trial, the Court approved the use of the 

phrase “the law applicable to this case” to refer to earlier rulings as necessary; the 

Court explained then that it would take up objections on its specific use as presented 

during trial; and Centene did not object when Rite Aid used it.216 On the second 

point, Rite Aid says the record itself supports its co-pay statement, as does the jury’s 

common sense.217

Centene provides not a single citation to law—in either its opening or reply 

brief—in support of this claimed error.

Regarding Centene’s first argument, Centene fails to identify where it ever 

objected when Rite Aid employed the term “the law applicable to this case” at trial. 

Centene points out the Court rejected a Centene-proposed limiting instruction 

regarding the March 2023 summary judgment Opinion on the first day of trial.218 

214 Centene Motion at 32-34.

215 Id.; Centene’s Reply Brief for Judgment Notwithstanding the Verdict Or, Alternatively, for a 

New Trial at 17-19 (D.I. 378).

216 Rite Aid Answer at 37.

217 Id. at 38-39.

218 Centene Motion at 32.
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True, the Court proposed, instead, the parties create a stipulation for the jury.219 

They never did so. But that is neither here nor there. Because what again is 

dispositive is Centene never objected to Rite Aid’s use of the phrase “the law 

applicable to this case” during trial, despite pretrial instructions to do so if counsel 

believed at any specific point in trial it’s use was improper.

220

 Failure to object then 

is fatal to Centene’s argument now.

221

Regarding Centene’s second argument, the trial record and common sense 

supported Rite Aid’s counsel’s statement during closing argument that “I’ll bet you 

[i.e., the jury] know from your experience $10 is a pretty common co-pay, isn’t 

it?”222 Rite Aid’s counsel made that statement in reference to Michael Petron

(Centene’s damages expert)’s testimony.223 Mr. Petron testified his calculation 

219 May 8 Trial Tr. at 19-20.

220 May 5, 2023 Pretrial Conference at 57, 60-62 (noting that the parties were to use “under the 

law applicable in this case” to refer to earlier rulings as necessary, and instructing the parties to 

object as necessary during trial so the Court could “make a ruling in the context of what is going 

on at the time” because the Court needed to evaluate “an objection made in the context of that 

specific witness” and that specific testimony) (D.I. 381).

221 See supra note 150; see also Tilson v. Lutheran Senior Servs., Inc., 2013 WL 6596959, at *4 

(Del. Super. Ct. Dec. 12, 2013) (observing on a motion for new trial: “The waiver rule is intended 

to afford a trial court the immediate opportunity to correct any trial error. The rule fosters the 

efficient trial of cases by ensuring that the Court may contemporaneously address any 

objectionable statement or conduct, either with a curative instruction or otherwise.” (internal 

citations omitted)).

222 May 22 Trial Tr. at 103.

223 See id. at 102-03.
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relied on “the amount paid by the patient at the time of sale,” which was either “the 

retail value for cash customers [or] . . . the copay or patient pay amount.”224

Mr. Petron also testified:

I examined the cash transactions and identified those instances in which 

the amount paid by the individual at the point of sale matched one of 

the known Wal-Mart advertised prices of $4 or $10. . . . There was lots 

and lots of transactions at four and ten dollars, and so those are the 

transactions I considered to be price matching.225

Additionally, the jury was instructed: “You [i.e., the jury] are allowed to draw 

reasonable conclusions from the testimony and exhibits, if you think those 

conclusions are justified. In other words, use your common sense to reach 

conclusions based on the evidence.”226 

As this Court has previously explained when resolving an “improper 

comments” issue:

While jurors may generally not substitute their own judgment in areas 

where expert testimony is required, they clearly are allowed to assess 

the credibility of that witness and are free to decide to what extent they 

will accept the testimony. In performing this function, the jury is 

expected to use their common sense and counsel was asking nothing 

more of them. . . . the arguments made by counsel were not improper.227

224 May 16 Trial Tr. at 86.

225 Id. at 139.

226 Jury Instructions at 1-2; see also Smith v. State, 317 A.2d 20, 23 (Del. 1974) (“Jurors are 

expected to use all the experience, common sense and common knowledge they possess.”).

227 Thomas v. Lagola, 2003 WL 22496355, at *2 (Del. Super. Ct. Oct. 31, 2003).
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Just the same here. The jury was urged to employ its common knowledge and 

common sense when assessing whether Mr. Petron’s analysis might rely on some 

faulty assumptions—that every $10 transaction was a price-matched sale. Centene 

suffered no unfair prejudice as a result.

In sum, no legal-error claim Centene forwards in its quest for a new trial 

merits one. That is, Centene has not shouldered its heavy burden of demonstrating 

that the jury’s verdict is tainted by legal error committed before or during the trial.228

Centene elected to pursue a jury trial. Centene had just that. “When the 

parties activate the jury trial system, they activate the risk inherent in the system. 

And, of course, trials by jury implicate the most risky element of dispute 

resolution—uncertainty.”229 The Court cannot now rescue Centene from the snares 

found along the risky venture it set upon. And “the judicial system cannot and 

should not make litigation risk-free.”230

Centene’s Motion for a new trial is DENIED.

C. RITE AID IS ENTITLED TO COSTS.

Rite Aid requests the Court award costs against Centene.231 Rite Aid seeks: 

228 O’Riley, 69 A.3d at 1010 (stating that to grant a new trial on these grounds the Court must first 

find legal error and “must then determine whether the mistakes constituted significant prejudice 

so as to have denied the [complaining party] a fair trial”).

229 Dunkle v. Prettyman, 2002 WL 833375, at *3 (Del. Super. Ct. May 1, 2002); Galindez, 2006 

WL 3457628, at *2 (“That is the nature of the beast.”).

230 Dunkle, 2002 WL 833375, at *3 (cleaned up) (citation omitted).

231 See Motion for Costs.
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(1) Court, filing, and electronic service fees; (2) service of process; and (3) trial 

technology fees.232 Centene, generally, does not oppose Rite Aid’s Motion.233 

Instead, Centene argues Rite Aid’s Motion is premature because Centene believes 

it’s entitled to JNOV or a new trial.234 Because the Court has found Centene is 

entitled neither to JNOV nor a new trial, it will now address Rite Aid’s request for 

costs.

To reiterate, Superior Court Civil Rule 54(d) provides “costs shall be allowed 

as of course to the prevailing party upon application to the Court within ten (10) days 

of entry of final judgment unless the Court otherwise directs.”235 Awarding costs is 

a matter of judicial discretion,236 but the prevailing party is generally entitled to 

costs.237 There are few circumstances where the Court will deny an award of costs 

to the prevailing party; for instance, if the jury finds both parties equally or nearly 

equally liable.238 Otherwise, the prevailing party is typically entitled to costs as a 

232 See id. at 2-3.

233 See Centene’s Answering Brief in Opposition to Rite Aid’s Motion for Costs (“Centene 

Answer”) at 1 (D.I. 376).

234 Id.

235 Del. Super. Ct. Civ. R. 54(d).

236 Phelps, 2018 WL 1341704, at *1 (citing Olson, 2014 WL 1325909, at *1).

237 Id. (citing Bodley, 65 A.2d at 487).

238 See, e.g., Nelson v. Feldman, 2011 WL 531946, at *1 (Del. Super. Ct. Jan 26, 2011) (finding 

the defendant 49% liable and the plaintiff 51% liable). Although Nelson is an automobile collision 

case, it is illustrative of when this Court may deny costs. See id. at *2. 
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matter of right.239

In this case, Rite Aid ran the table. So, now the Court must consider what 

costs to award to Rite Aid.

Regarding Rite Aid’s Court, filing, and electronic services fees, Rite Aid 

requests $2,089.75.240 Court fees, filing fees, and electronic service fees are 

generally recoverable.241 Centene does not dispute Rite Aid’s calculations of these 

costs, so the Court awards Rite Aid $2,089.75 for these fees.242

Regarding Rite Aid’s service of process costs, Rite Aid requests $563.17.243 

Service of process fees are also generally recoverable.244 Centene does not dispute 

Rite Aid’s calculations of these costs.245 The Court, therefore, awards $563.17 for 

these fees.246

Regarding trial technology fees, Rite Aid requests $12,528.75.247 This Court 

239 Phelps, 2018 WL 1341704, at *1 (citing Bodley, 65 A.2d at 487).

240 Motion for Costs at 3; see also id., Ex. 1.

241 In re Bracket Hldg. Corp. Litig., 2020 WL 764148, at *11 (Del. Super. Ct. Feb. 7, 2020) (citing 

Dewey Beach Lions Club v. Longacre, 2006 WL 2987052, at *2 (Del. Ch. Oct. 11, 2006)).

242 See id. (“As Defendants do not dispute [Plaintiff’s] calculations of [court fee, filing fee, and 

electronic service fee] costs, the Court will allow them in the [total] amount [requested].”).

243 Motion for Costs at 3; see also id., Ex. 2.

244 In re Bracket Hldg. Corp. Litig., 2020 WL 764148, at *12 (citing Moyer v. Saunders, 2013 

WL 4138116, at *1 (Del. Super. Ct. July 24, 2013)).

245 See Centene Answer at 1.

246 In re Bracket Hldg. Corp. Litig., 2020 WL 764148, at *12 (awarding fees for service of process 

costs that the other party did not dispute).

247 Motion for Costs at 3; see also id., Ex. 3.
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permits recovery of reasonable trial technology fees.248 Rite Aid’s trial technology 

support staff significantly aided Rite Aid throughout the presentation of the evidence 

at trial. And Centene does not dispute Rite Aid’s calculations of these costs.249 As 

such, the Court awards Rite Aid $12,528.75 for these fees.

Rite Aid’s Motion for costs is GRANTED. In total, the Court awards Rite 

Aid $15,181.67 in costs.

V. CONCLUSION

For the foregoing reasons, Centene’s Motion for JNOV is DENIED in full; 

Centene’s Motion for alternative relief in the form of a new trial is DENIED; and 

Rite Aid’s Motion for costs is GRANTED.

IT IS SO ORDERED.

 _______________________

Paul R. Wallace, Judge

248 See, e.g., In re Bracket Hldg. Corp. Litig., 2020 WL 764148, at *13 (“This Court will allow 

recovery only to the extent of the cost of technology support services that were provided during 

trial.”); TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, 2012 WL 1415466, at *5 (Del. Super. 

Ct. Mar. 29, 2012) (awarding $14,801 as “technical support staff” costs because plaintiff’s “trial 

technology support person was critical to the trial presentation and the viewing of the numerous 

exhibits introduced in this case”), superseded on other grounds, Noranda Aluminum Hldg. Corp. 

v. XL Ins. Am., Inc., 269 A.3d 974 (Del. 2021); Salt Meadows Homeowners Assoc., Inc. v. Zonko 

Builders, Inc., 2023 WL 1370997, at *7 (Del. Super. Ct. Jan. 31, 2023) (awarding $16,258.45 as 

“computer exhibit operator” fees because the “operator helped to keep the multitude of documents 

organized and readily available for witnesses”).

249 Centene Answer at 1.