City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 1262

MEMORANDUM OPINION AND ORDER granting Defendants' 1043 MOTION to Exclude Expert Testimony Regarding Defendants' Corporate Conduct, insofar as Defendants' motion seeks a ruling confirming the ground rules that will govern the admission of expert testimony at trial. Signed by Senior Judge David A. Faber on 4/8/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)

Case 3:17-cv-01362 Document 1262 Filed 04/08/21 Page 1 of 11 PageID #: 42854

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01362

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
CABELL COUNTY COMMISSION,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01665

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion to exclude
expert testimony regarding defendants’ corporate conduct.
ECF No. 1043.

See

That motion is fully briefed.
I.

Defendants move to exclude any expert opinion testimony
regarding their alleged “bad acts” or failures to act; their
knowledge, intent, or state of mind; and their corporate ethics
and corporate responsibility.

Defendants argue that such

testimony is not proper expert testimony and they identify six

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experts who, according to them, have offered this type of
improper opinion testimony:

Dr. Andrew Kolodny; Dr. Anna Lembke;

Dr. Jakki Mohr; Dr. Michael Siegel; Gordon Smith, CH.B.; and Dr.
David Courtwright.
exclude:

Specifically, defendants’ motion seeks to

1) testimony that restates factual information found in

documents; 2) testimony regarding defendants’ knowledge, intent,
or state of mind; and 3) testimony regarding defendants’
corporate ethics, responsibilities, or duties.
In opposing defendants’ motion, plaintiffs argue that their
experts should be permitted to summarize the facts and evidence
relied upon in forming their expert opinions and that they should
be allowed to do so in narrative form.

They also contend that

their experts may offer testimony relevant to defendants’
knowledge, intent, or state of mind.

Plaintiffs also contend

that, contrary to defendants’ assertions, their experts have not
offered personal opinions regarding corporate ethics or
responsibilities.

Furthermore, plaintiffs argue that defendants’

motion should be denied because it seeks a broad, general ruling
without identifying specific opinions that should be excluded.
Finally, plaintiffs are correct that defendants’ motion is based
upon expert reports and those reports are not necessarily
reflective of what the experts’ trial testimony will be.

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II.
Only relevant evidence is admissible.
402.

See Fed. R. Evid.

“Relevant evidence, of course, is evidence that helps ‘the

trier of fact to understand the evidence or to determine a fact
in issue.’”

Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.

2017) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 591 (1993) (internal question marks omitted)).

“Expert

testimony which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.”

Daubert, 509 U.S. at 591

(internal citation and quotation omitted).

“The touchstone of

whether a witness may testify as an expert under Fed. R. Evid.
702 is . . . whether he would be ‘helpful,’ but it is helpfulness
to the trier of fact, not to a party's case, that counts.”
Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1296 (4th Cir. 1995)
(emphasis in original).

The categories of expert testimony

discussed in defendants’ motion are neither helpful nor relevant.
As Judge Goodwin succinctly put it:
[T]he defendant’s knowledge, state of mind, alleged bad
acts, failures to act, or other matters related to
corporate conduct and ethics are not appropriate
subjects of expert testimony because opinions on these
matters will not assist the jury. . . . The
reasonableness of conduct and a party’s then-existing
state of mind are the sort of questions that lay jurors
have been answering without expert assistance from time
immemorial. . . .
While internal corporate documents
and executives’ testimony are certainly relevant in
this case, such evidence should be presented directly
to the jury, not through an expert.

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Tyree v. Boston Sci. Corp., 54 F. Supp.3d 501, 564 (S.D.W. Va.
2014) (internal citations and quotations omitted).
A.
Expert testimony which “merely regurgitates factual
information that is better presented directly to the jury rather
than through the testimony of an expert witness” is properly
excluded.

Hines v. Wyeth, No. 2:04–0690, 2011 WL 2680842, at *5

(S.D.W. Va. July 8, 2011); see also Robroy Industries-Texas, LLC
v. Thomas & Betts Corp., Case No. 2:15-CV-512-WCB, 2017 WL
1319553, at *9 (E.D. Tex. Apr. 10, 2017) (“[D]enominating a
witness as an expert does not give that witness leave to simply
read materials such as exhibits and depositions in the case and
then testify as to their contents.

Such evidence is not helpful

to the jury where the jury can easily reach reliable conclusions
based on common sense, common experience, and the jury’s own
percceptions. . . .”) (internal quotation and citation omitted);
In re:

Ethicon, Inc., MDL No. 2327, 2016 WL 4536875, at *5

(S.D.W. Va. Aug. 30, 2016) (“I caution the parties against
introducing corporate evidence through expert witnesses.
Although an expert may testify about his review of internal
corporate documents solely for the purpose of explaining the
basis for his or her expert opinions—assuming the expert opinions
are otherwise admissible—he or she may not offer testimony that
is solely a conduit for corporate information.”); In re Prempro

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Prods. Liab. Litig., 554 F. Supp.2d 871, 887 (E.D. Ark. 2008)
(“Having an expert witness simply summarize a document (which is
just as easily summarized by a jury) with a tilt favoring a
litigant, without more, does not amount to expert testimony.”).
Therefore, while an expert may identify the documents that he or
she has relied on in forming his or her expert opinion, an expert
may not read those documents into the record.
Upon reviewing the excerpts of the expert reports provided,
it does not appear that the corporate documents upon which the
experts rely are overly technical or scientific such that a
narrative summary would assist the trier of fact.

See In re

DePuy Orthopaedics, Inc. Pinnacle Hip Implant Prods. Liab.
Litig., MDL Docket No. 3:11-MD-2244-K, 2014 WL 3557345, at *7
(N.D. Tex. July 18, 2014) (“Expert narrative testimony is
entirely permissible where the documents and other information
the expert is reviewing are complicated, voluminous, or involve
scientific or technical data and such narrative summary would
assist the trier of fact in understanding the documents.”).
Therefore, there appears to be no need for long narrative expert
testimony regarding those documents.
B.
Likewise, expert testimony regarding a corporation’s motive,
intent, or state of mind is likewise inadmissible.

See In re:

E.I. du Pont de Nemours and Co. C-8 Pers. Inj. Litig., 345 F.

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Supp.3d 897, 902-03 (S.D. Ohio 2015) (“Courts have typically
barred expert opinions or testimony concerning a corporation’s
state of mind, subjective motivation, or intent. . . .

In

general, courts have found that this type of testimony is
improper . . . because it describes lay matters which a jury is
capable of understanding and deciding without the expert’s help.
. . .

Although witnesses may discuss certain subjects about

which they possess specialized knowledge, this does not mean they
are allowed to speculate regarding corporate intent, state of
mind, and/or motivations.”) (internal quotations and citations
omitted); see also Young v. Mentor Worldwide LLC, 312 F. Supp.3d
765, 770 (E.D. Ark. 2018) (“The Court finds that a jury is
capable of making its own determination as to Mentor’s [a medical
device manufacturer] intent, motive, or state of mind and that
Dr. Hyman’s opinion on those subjects does not meet the
helpfulness criterion of Rule 702.”); Knight v. Boehringer
Ingelheim Pharms., Inc., 323 F. Supp.3d 837, 852 (S.D.W. Va.
2018) (“The Court . . . will not permit [the expert doctors] to
make, and opine about, the inferences of motive and intent.

The

jury, not an expert should make those inferential leaps.”)
(Chambers, J.) Clinton v. Mentor Worldwide LLC, No. 4:16-CV-00319
(CEJ), 2016 WL 7491861, at *11 (E.D. Mo. Dec. 30, 2016) (“The
question of corporate motive, intent, knowledge or state of mind
is one for the jury, not for an expert.”); Smith v. Pfizer, Inc.,

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714 F. Supp.2d 845, 857 (M.D. Tenn. 2010) (not allowing expert to
testify regarding intent or motive of the corporate defendant);
In re: Ethicon, Inc., MDL No. 2327, 2016 WL 4536875, at *5
(S.D.W. Va. Aug. 30, 2016) (“[M]any of the motions seek to
exclude state-of-mind and legal-conclusion expert testimony.
Throughout these MDLs, the court has prohibited thr parties from
using experts to usurp the jury’s fact-finding function by
allowing testimony of this type, and I do the same here.”)
(Goodwin, J.).
Some of the expert opinions cited by defendants contain this
type of improper testimony.

By way of example, in his expert

report Dr. Kolodny makes the following assertion:

“In fact,

numerous internal documents evidence how Defendants made
conscious decisions to ignore the law.”
(Exhibit 2 to Defendants’ Motion).

Kolodny Report at 83.

While that certainly may be

one inference to be made from reviewing defendants’ internal
documents, it is an inference that should be made by the finder
of fact, not Dr. Kolodny.
C.
Finally, expert testimony regarding defendants’ corporate
ethics, duties, or responsibilities should be excluded.
“Personal views on corporate ethics and morality are not expert
opinions.”

In re Baycol Prod. Litig., 532 F. Supp.2d 1029, 1053

(D. Minn. 2007) (“Personal views on corporate ethics and morality

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are not expert opinions.”); see also In re Welding Fume Prods.
Liab. Litig., No. 1:03–CV–17000, MDL 1535, 2006 WL 4507859, at
*20 (N.D. Ohio Aug. 8, 2006) (relevant question was “whether the
defendant corporations did what the law required them to do, not
whether, from a societal perspective, they did what an ‘ethical
corporation’ should have done”) (emphasis in original).

As one

court explained in excluding expert testimony about that is
similar to certain testimony from plaintiffs’ experts in this
case:
In portions of his report, Dr. Abramson opines
about Pfizer’s “obligations,” “duties,” and the acts of
“responsible drug manufacturers.” For example, Dr.
Abramson opines that “[w]ith [regulators] able to
monitor only a small fraction of drug marketing and
promotional activities, the responsibility of drug
makers to stay within the boundaries of permissible
marketing and promotion is heightened”. . . . Such
testimony is not based on any particular legal
standard, . . . and Dr. Abramson has not articulated
any standard or guidelines for stating what a
corporation’s “obligations” or “duties” are. . . .
Thus, there is no apparent basis for these statements
other than Dr. Abramson’s personal opinion.
Such opinions could confuse the jury and usurp its
role. To the extent that Dr. Abramson intends to opine
about the corporation’s legal duties and obligations,
it would usurp the role of the Court to instruct on the
law and the jury’s role to apply the facts to the law.
In re: Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. and
Prods. Liab. Litig., MDL No. 2:14-mn-02502-RMG, 2016 WL 2940784,
at *5-6 (D.S.C. May 6, 2016).
Plaintiffs’ response in opposition to defendants’ motion
only highlights the problems with this kind of evidence.
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For

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example, Dr. Mohr opines that “[a] company that sells potentially
harmful products to a vulnerable population (e.g., the elderly or
those with lower socio-economic status due to poverty, lower
educational attainment, etc.) has an even higher duty in
marketing these products.”
at 15.

See Exhibit 4 to Defendants’ Motion

In arguing that opinion is “not based solely on Dr.

Mohr’s personal standards of ethics or morality[,]” plaintiffs
contend that Dr. Mohr relies on the American Marketing
Association’s Code of Ethics, The Code of Ethics for the Public
Relations Society of America, the Federal Trade Commission’s
Endorsement Guidelines, and the World Health Organization.
ECF No. 1103 at 22.

See

However, Dr. Mohr herself cites an article

in the Journal of Marketing as support for that opinion.
Exhibit 4 at 15 n.37.

See

Dr. Mohr does cite to the World Health

Organization on the previous page of her report and repeats a WHO
guideline that states:

“All parties involved in the distribution

of pharmaceutical products have a responsibility to ensure that
the quality of pharmaceutical products and the integrity of the
distribution chain is maintained throughout the distribution
process from the site of the manufacturer to the entity
responsible for dispensing or providing the product to the
patient or his or her agent.”

Id. at 14.

While this guideline

(and the other sources mentioned by plaintiffs) might have played
a role in how Dr. Mohr came to her opinion, it is still Dr.

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Mohr’s personal opinion about how defendants should act and,
therefore, irrelevant.
III.
To summarize:
A.

Lengthy expert testimony that merely restates factual
information found in documents is generally prohibited.
Expert witnesses are permitted to testify about those
documents relied upon in forming their opinion.

B.

Expert testimony regarding defendants’ motive, intent,
and/or state of mind is prohibited.

C.

Expert testimony regarding defendants’ corporate
ethics, responsibilities, and/or duties is prohibited.

These ground rules will govern the admission of expert
testimony at trial.

Therefore, insofar as defendants’ motion

seeks a ruling confirming as much, their motion is GRANTED.

Even

were the court inclined to do so (and it is not), it would be
impossible to address every example cited by defendants because
they have not provided the full expert reports so that the
opinions may be evaluated in context.

However, the court has

seen enough to determine that there are times when certain
experts veer into the realm of impermissible expert testimony.
Counsel should take care to see that they do not do so at trial.

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The Clerk is directed to send copies of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 8th day of April, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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