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

Filing 1269

MEMORANDUM OPINION AND ORDER granting Defendants' 1047 DAUBERT MOTION to Exclude the Opinions of James Geldhof. Signed by Senior Judge David A. Faber on 4/15/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)

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.
v.

Civil Action No. 3:17-01665

CABELL COUNTY COMMISSION,
Plaintiff,
v.

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion to exclude
the opinions of James Geldhof.

(ECF No. 1047.)

For the reasons

that follow, the motion is GRANTED.
I.

Background
James Geldhof is a retired Drug Enforcement Agency (“DEA”)

agent.

His career at the DEA spanned more than four decades and

included notable service to the agency in leadership roles.

His

expert report provides a general overview of law that applies to

prescription drug distributors and the DEA’s enforcement of that
law, including specific examples of enforcement.

Other than to

say certain laws apply to them, his report does not contain
opinions regarding defendants here.
Plaintiffs say that the value of Geldhof’s testimony will
be in educating the court on the complex legal framework within
which the pharmaceutical industry operates and how the DEA
enforces that framework.

Essentially, plaintiffs characterize

Geldhof as a legal expert who gained his expertise through
experience.

Plaintiffs suggest that allowing Geldhof to testify

will spare the court from an otherwise dry presentation of
documentary evidence.
Defendants dispute the characterization of Geldhof as an
expert at all.

They say that all he really offers is a factual

narrative regarding the law and how the DEA has enforced it.
And to the extent such narratives are helpful to summarize
voluminous documents or complex legal regimes, that is not what
the testimony here seeks to do.

Finally, as to the concern

about a lack of context, defendants point out that proper lay
testimony would eliminate it.
II.

Legal Standard
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
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(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
“Essentially, the witness must be qualified as an expert,
the testimony must be reliable, and the testimony must
assist the trier of fact.”

In re Fosamax Prod. Liab.

Litig., 645 F. Supp. 2d 164, 172 (S.D.N.Y. 2009). 1
Rule 702 requires courts to stop expert opinions at
the gate if they lack reliable foundation or relevance “to
the task at hand.”

McKiver v. Murphy-Brown, LLC, 980 F.3d

937, 959 (4th Cir. 2020).

But because “the adversary

system” awaits such opinion evidence on the other side of
the gate, the gatekeeping function is a limited one.

See

In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices
& Prod. Liab. Litig. 892 F.3d 624, 631 (4th Cir. 2018).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme
Court listed four factors that may guide the reliability
analysis. See 509 U.S. 579, 593-94. “[T]he four-factor mold
set forth by Daubert that governs scientific expert opinions
. . . is not applicable to a non-scientific regulatory expert.”
In re Mirena IUD Prod. Liab. Litig., 169 F. Supp. 3d 396, 480
(S.D.N.Y. 2016).
1

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Helpfulness to the trier of fact is the “touchstone”
of Rule 702.
1993).

Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.

When a lawyer can advance in argument what a

proffered expert intends to advance in opinion, the expert
is probably unhelpful.

See Puga v. RCX Sols., Inc., 922

F.3d 285, 293–94 (5th Cir. 2019).
The party proffering the expert’s opinion has the
burden of production on the question of admissibility.
Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783
(4th Cir. 1998).
III. Discussion
The parties appear to agree that Geldhof’s distinguished
career in public service for the DEA renders him qualified to
opine on how the DEA operates.

But they disagree on whether he

operates within the realm of his qualifications and whether he
offers expert opinions at all.

Having reviewed Geldhof’s

report, the court agrees with defendants’ characterization of
the proffered testimony.

It is unclear how Geldhof would go

beyond being a sounding board for plaintiffs to relate certain
facts and suggest the legal conclusions that flow therefrom.
Because the report falls short of assisting the trier of fact,
its author’s testimony should be excluded.
Plaintiffs suggest that Geldhof will provide expert opinion
on the history of the law, the content of the law, how the law
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applies to defendants, and how the DEA enforces the law.

Only

the last of these categories would be potentially useful.

The

others are not helpful because the court is capable of
understanding the law at issue here with the assistance of the
highly qualified attorneys who are litigating the case.
“[A]n expert generally may not opine as to what the law
requires, or whether [certain] conduct violated the law.”

In re

Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2019 WL
3934490, at *4 (N.D. Ohio Aug. 20, 2019).

Nevertheless, it is

true that courts sometimes admit legal experts, even in jury
trials.

For example, law professors may sometimes offer

opinions on matters of law in securities cases.

See, e.g.

United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011).

And

the same reasoning may apply beyond law professors in other
complex financial cases. See United States v. Duarte, 581 F.
App’x 254, 257 (4th Cir. 2014).

Without this dispensation,

presenting a complex financial case to a jury may be nearly
impossible.

See Offill, 666 F.3d at 175.

It is likewise true that a bench trial substantially allays
fears of undue influence by legal experts.

See Roger C. Park &

Aviva Orenstein, Trial Objections Handbook 2d § 8:13 (“If a
judge conducting a bench trial believes that he or she will
benefit from expert testimony about law, as opposed to having a
legal expert brief or argue the issue, then there seems to be
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little potential harm in allowing the testimony.”).

On the

other hand, there is less need for a legal expert in a bench
trial because there is no jury to educate.
Here, there are two problems with allowing Geldhof to
testify about the law (including its history and application):
(1) the legal regime is not extraordinarily complex (this case
is not Offill); and (2) Geldhof’s report is devoid of expert
legal analysis.

In other words, while the court acknowledges

that there are situations where a legal expert may be helpful,
this is neither such a situation nor such an expert.
That leaves the issue of whether Geldhof should be
permitted to testify about DEA enforcement of the law.

While it

appears that Geldhof’s experience would qualify him on this
topic, his report does not appear to draw upon that expertise in
any meaningful way.

The report belies the suggestion that the

court will get an “inside look” (ECF No. 1105, at 7) at how the
DEA operates.

Rather, it appears from the report that the court

would get a narrative of enforcement actions and communications
between the DEA and the pharmaceutical industry.

It is unclear

why Geldhof needs to be the narrator.
Plaintiffs point out that summary evidence is permissible.
See United States v. Janati, 374 F.3d 263, 274 (4th Cir. 2004).
They also argue that no “general rule prevents experts from
discussing the evidence on which their opinions are based in the
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form of a narrative.”

(ECF No. 1105, at 14.)

is the lack of opinions.
for its own sake.

The problem here

Essentially, the proffer is narrative

That someone with impressive experience in

federal law enforcement provides a narrative does not transform
that narrative into an expert opinion.
Experts must do more than offer factual narratives,
including “narrative[s] of select regulatory events.”
645 F. Supp. 2d at 192.

Fosamax,

Factual narratives are permissible only

as necessary to support expert opinions.

See In re C.R. Bard,

Inc., 948 F. Supp. 2d 589, 646 (S.D.W. Va. 2013).

Because the

expert report shows that a factual narrative would be the end in
itself, there is no need to wait for trial to exclude the
proffered evidence as unhelpful.
IV.

Conclusion
For the reasons expressed above, defendants’ motion to

exclude the opinions of James Geldhof (ECF No. 1047) is GRANTED. 2

The court, however, makes no comment as to the merits of the
“do not ship” argument or whether the documents that Gelhof
reviewed do or do not support that argument.
2

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The Clerk is directed to send a copy of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 15th day of April, 2021.
ENTER:
David A. Faber
Senior United States District Judge

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