Manes' Pharmacy, Inc. v. AmerisourceBergen Drug Corporation

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MANES’ PHARMACY, INC. 	PLAINTIFF
v. 	No. 2:22-cv-2186
AMERISOURCEBERGEN DRUG CORPORATION 	DEFENDANT
OPINION AND ORDER
Before the Court is Plaintiff Manes’ Pharmacy, Inc.’s (“Manes”) motion (Doc. 64) to strike
the 	Report 	of 	Deborah 	Komoroski. 	Defendant 	AmerisourceBergen 	Drug 	Corporation
(“AmerisourceBergen”) responded in opposition (Doc. 75). For the reasons given below, Manes’s
motion will be DENIED.
AmerisourceBergen designated Ms. Komoroski as a rebuttal expert. (Doc. 64, p. 1). Ms.
Komoroski prepared a report as part of her role as an expert. See Doc. 64-2. Manes now moves
to strike her report on the grounds that she failed to disclose previous expert testimony. (Doc. 64,
p. 1). 	Specifically, Manes argues Ms. Komoroski should have disclosed her testimony in two
cases: Suntree Pharmacy, Inc. v. AmerisourceBergen Drug Corp., No. 6:19-cv-1523 (M.D. Fla.)
and Miller Pharmacy Servs. LLC d/b/a Prescription Shoppe Pharmacy v. AmerisourceBergen
Drug Corp., No. 3:21-cv-207 (W.D. La.). 	AmerisourceBergen responds that Ms. Komoroski
testified as a fact witness in the Suntree case and that she never testified in Miller. (Doc. 75, p. 2).
A party’s expert witness must prepare a written report that contains, among other
information, “a list of all other cases in which, during the previous 4 years, the witness testified as
an expert at trial or by deposition. . . .” 	Fed. R. Civ. P. 26(a)(2)(B)(v). 	Manes contends Ms.
Komoroski violated this rule by not disclosing her involvement in the Suntree and Miller cases.
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Based on that alleged violation, Manes seeks to strike her report because of her failure to disclose
that required information. See Fed. R. Civ. P. 37(c)(1).
Manes’s argument fails because Ms. Komoroski did not act as an expert in either case. In
the Suntree case, Ms. Komoroski testified as a fact witness. She said so in her deposition. See
Doc. 64-3, p. 12 (internally numbered 45:1–46:1). Manes has offered no evidence otherwise. In
the Miller case, Ms. Komoroski never testified. AmerisourceBergen explains that Ms. Komoroski
had been scheduled to testify as an expert in an evidentiary hearing related to a motion for a
preliminary injunction. (Doc. 75, p. 3). However, before the hearing occurred, the Miller court
denied the motion and cancelled the hearing. Id. This Court’s independent review of the Miller
docket confirms the same.
Ms. Komoroski did not testify as an expert in either the Suntree or Miller cases. Therefore,
she had no expert witness testimony to disclose from the four years before her report. The Court
will not strike her expert report.0F
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IT IS THEREFORE ORDERED that Plaintiff Manes’s motion (Doc. 64) to strike the report
of Deborah Komoroski is DENIED.
IT IS SO ORDERED this 22nd day of May, 2024.
/s/P. K. Holmes , III
P.K. HOLMES, III
U.S. DISTRICT JUDGE
1 At this time, the Court expresses no opinion on Manes’s pending motion to exclude Ms.
Komoroski under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993). See Doc. 69.
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