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 are two motions to exclude expert testimony filed by Plaintiff Manes’
Pharmacy, Inc. (“Manes”) (Docs. 67, 69) and one motion to exclude expert testimony filed by the
Defendant AmerisourceBergen Drug Corporation (“AmerisourceBergen”) (Doc. 72). The Court
has reviewed the motions as well as the briefs and exhibits filed in support of, and in opposition
to, the motions. See Docs. 68, 70, 73, 76–77, 81, 85–86. Manes’ motions will be DENIED, and
AmerisourceBergen’s motion will be GRANTED IN PART AND DENIED IN PART, as explained
below.
I. 	Background
This dispute is between a pharmacy and the pharmacy’s wholesale distributor of, among
other products, controlled substances. 	Manes is a pharmacy that has served the Van Buren,
Arkansas community for nearly 40 years. 	(Doc. 53, p. 2). AmerisourceBergen is a wholesale
distributor of pharmaceutical products, including controlled substances. 	(Doc. 16, p. 4). 	This
dispute arises from AmerisourceBergen’s decision to restrict its sale of controlled substances to
Manes. Manes sued AmerisourceBergen for breach of contract, tortious interference with Manes’
business expectancies, defamation, and compelled self-defamation. (Doc. 53).0F
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1 Initially, Manes asserted a procedural due process claim under the United States and
Arkansas Constitutions. (Doc. 4, pp. 12–15). However, Manes dropped that claim in its amended
complaint. See Doc. 53.
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The Court has previously denied Manes’ motions for a temporary restraining order
(Doc. 17) and preliminary injunction (Doc. 38).1F
2 Those orders contain a longer recitation of the
factual background in this matter, but that background is not necessary to resolve these motions.
Now, after discovery, both parties have moved to exclude some of the other parties’ experts.
II. 	Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony. 	That rule
allows a witness “who is qualified as an expert by knowledge, skill, experience, training, or
education” to provide opinion testimony if the party offering his testimony demonstrates to the
court that it is more likely than not that:
(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’s opinion reflects a reliable application of the principles and methods
to the facts of the case.
See Fed. R. Evid. 702. 	The proponent of expert testimony bears the burden of proving its
admissibility by a preponderance of the evidence. 	See In re Bair Hugger Forced Air Warming
Devices Prods. Liability Litig., 9 F.4th 768, 776 (8th Cir. 2021). Eighth Circuit caselaw recognizes
that Rule 702 embodies a “liberal thrust” in favor of admitting expert testimony. See id. at 777.
In other words, exclusion of expert testimony is the exception rather than the rule. 	Robinson v.
GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006). However, “[t]rial judges are tasked
with a gatekeeping role to ‘ensur[e] that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.’” Shipp v. Murphy, 9 F.4th 694, 700 (8th Cir. 2021) (quoting
2 The parties consented to magistrate judge jurisdiction to resolve the motion for
preliminary injunction, Doc. 43, p. 5, so Chief United States Magistrate Judge Mark E. Ford ruled
on that motion. See Doc. 38, p. 10.
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Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). “It is within the broad discretion
of the trial court whether to allow expert testimony.” 	Koslov v. Associated Wholesale Grocers,
Inc., 818 F.3d 380, 393 (8th Cir. 2016) (internal quotations omitted).
III. 	Analysis
Both parties seek to exclude some of their opponent’s experts. Manes seeks to exclude the
testimony of James Place and Deborah Komoroski. 	AmerisourceBergen seeks to exclude the
testimony of Jack Teitelman. The Court will consider each expert in turn.
A. 	James Place
Manes first seeks to exclude James Place on the grounds that he is testifying on matters
outside of his area of expertise. Mr. Place has 27 years of experience working for the United States
Drug Enforcement Administration and nearly ten years of doing compliance work in the private
sector. (Doc. 77-2, p. 3). However, Manes argues the Court should exclude Mr. Place’s opinions
because he is not a pharmacist and his expert report contains opinions about “the practice of
pharmacy and how a pharmacist fulfills his/her corresponding responsibility.” 	(Doc. 68, p. 2).
Additionally, Manes argues Mr. Place should be excluded under Arkansas law because he cannot
judge whether a medical professional has deviated from the accepted standard of care. 	Id. at 4
(citing Ark. Code Ann. § 16-114-206(a)(1)). The Court rejects both arguments.
The Arkansas statute Manes relies on does not apply to this case for three independent
reasons. First, the statute is titled “Plaintiff’s burden of proof” and discusses what a plaintiff must
show “when the asserted negligence does not lie within the jury’s comprehension as a matter of
common knowledge.” Ark. Code Ann. § 16-114-206(a)(1). Manes is the plaintiff here and this is
not an action for negligence, so the statute plainly does not apply here. Second, the statute applies
to “any action for medical injury.” Id. The statute defines “any action for medical injury” as all
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actions against medical care providers. 	Id. § 16-114-201(1). And its definition of medical care
provider does not include a drug distributor like AmerisourceBergen, so the statute does not apply.
Id. § 16-114-201(2). Third, Manes has not alleged a medical injury. A “medical injury” is “any
adverse consequences arising out of or sustained in the course of the professional services being
rendered by a medical care provider to a patient or resident.” Id. § 16-114-201(3). Manes alleges
injuries arising out of AmerisourceBergen’s decision to stop selling it controlled substances. Those
are not medical injuries. The Arkansas statute therefore does not mandate excluding Mr. Place.
Manes also challenges specific opinions Mr. Place offers in his report as being beyond his
area of expertise because he has not worked or trained as a pharmacist. However, the Court finds
Mr. Place’s opinions do not discuss the exercise of pharmacological judgment, which might require
such experience. Instead, Mr. Place’s testimony discusses the steps a distributor or government
agency might take when investigating possible diversion. Mr. Place’s opinions do not question the
drugs Manes’ pharmacists dispensed; his opinions question the steps the pharmacists took to
investigate questionable prescriptions based on red flags (such as commonly diverted substances)
before filling the prescriptions. 	This opinion falls within his decades of experience with
investigations and compliance in the public and private sector.
Also, some of Manes’ objections are simply disputes over the factual basis for Mr. Place’s
opinions. 	Disputes over the factual basis for an expert’s opinion relate to the testimony’s
credibility, not admissibility. Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quoting
Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)). For example, Manes takes
issue with paragraph 39 of Mr. Place’s report. That paragraph reads, in part, “[p]roper controls
can be accomplished by following common sense, sound professional practice, and proper
dispensing procedures.” 	(Doc. 77-2, p. 7). 	This paragraph is a direct quote from the DEA’s
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Pharmacist’s Manual. 	(Doc. 77-1, p. 113). 	Manes argues that this is an example of where Mr.
Place “opines as to what pharmacies and pharmacists should or should not do.” (Doc. 68, p. 2).
In fact, that paragraph is an example of what the DEA says what a pharmacist should or should not
do. The same is true for paragraphs 38, 41, 43, and 44, which Manes also challenges. 	Manes’
argument misses the mark because it challenges the factual basis for Mr. Place’s opinions. Manes
can use cross-examination to challenge the factual basis for Mr. Place’s opinions. See Bonner, 259
F.3d at 929.
The last opinion Manes challenges is within Mr. Place’s area of expertise. Manes argues
the following opinion is impermissible: “AmerisourceBergen was justified in questioning
Plaintiff’s ability to satisfy its corresponding responsibility for the proper dispensing of controlled
substances.” (Doc. 77-2, ¶ 22). Mr. Place’s decades of experience in the DEA and private sector
compliance render him qualified to state that opinion. 	Mr. Place’s opinion is made from the
perspective of an outside investigator, not that of a pharmacist challenging Manes’ pharmacist’s
pharmacological judgment. This is within his area of expertise.
In sum, Mr. Place’s opinions all fall within his area of expertise and Arkansas’s statute
about the standard of care does not apply in this case. Manes is free to challenge the factual basis
of Mr. Place’s opinions on cross-examination, but Manes has not identified any reason Mr. Place’s
testimony is inadmissible. Manes’s motion to exclude Mr. Place will be denied.
B. 	Deborah Komoroski
Manes next asks the Court the exclude Deborah Komorski because she is testifying on
matters outside of her experience. AmerisourceBergen offers Ms. Komorski as a rebuttal expert
to Manes’ expert witnesses. (Doc. 76-2, p. 3). Ms. Komorski works for Cencora, Inc., which is
AmerisourceBergen’s parent company. 	Id. 	She has eight years’ experience as a pharmacist,
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twenty-five years’ experience as a Drug Control Agent for the State of Connecticut, and thirteen
years’ experience doing compliance and diversion control work for private companies. (Doc. 76-
2, pp. 19–22). 	Manes argues that Ms. Komoroski’s opinions fall outside her area of expertise.
(Doc. 70, pp. 3–4). Manes makes the same argument as above about Arkansas’s standard of care
for pharmacists, citing Ark. Code Ann. § 16-114-206(a)(1). The Court rejects that argument for
the same reasons stated above: the statute does not apply to this case.
The Court also rejects Manes’ argument that Ms. Komoroski’s opinions should be excluded
because she would testify outside her area of expertise. 	Manes objects to Ms. Komoroski’s
opinions which discuss AmerisourceBergen’s processes when investigating whether a pharmacist
carries out their corresponding responsibility. (Doc. 70, p. 2 (citing Doc. 76-2, pp. 3–5, 11)). These
opinions all fall within her decades-long experience as both a pharmacist and diversion control
agent.
Manes offers two additional brief arguments which are not convincing. Manes argues that
“Ms. Komorski failed to consider all the facts.” (Doc. 70, p. 4). This is a point Manes can press
on cross-examination, but it is not a reason to exclude Ms. Komoroski. See Bonner, 259 F.3d at
929. Finally, Manes argues that because Ms. Komoroski never practiced pharmacy in Arkansas,
she cannot testify as to the applicable standard of care. This argument misses the mark because
Ms. Komoroski’s opinions do not discuss the standard of care.
Based on the above, Manes’ motion to exclude Ms. Komoroski will be denied.
C. 	Jack Teitelman
AmerisourceBergen seeks to exclude Jack Teitelman, arguing his testimony is (1) factually
unsupported, (2) factually flawed, and (3) purely speculative. (Doc. 85, p. 2). Manes retained Mr.
Teitelman as a rebuttal witness to Mr. Place. Id. at 1. Mr. Teitelmean worked for the DEA as a
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special agent for 13 years, and he has worked in other law enforcement capacities for an additional
13 years. (Doc. 72-12, pp. 29–33). For the last seven years, he has worked for a private company
which he describes as “a leading Veterinary Industry provider of DEA-compliance and controlled-
substance anti-diversion solutions.” Id. at 17.
To start, the Court will not exclude Mr. Teitelman’s testimony as so fundamentally
unsupported that it cannot offer the jury assistance. AmerisourceBergen argues that because Mr.
Teitelman failed to review a multitude of key sources of information, his testimony should be
excluded because it is “so fundamentally unsupported that it can offer no assistance to the jury.”
(Doc. 85, p. 4) (citing Cole v. Homier Distrib. Co., 599 F.3d 856, 865 (8th Cir. 2010)). The parties
primarily 	dispute 	what 	documents 	Mr. 	Teitelman 	reviewed 	to 	prepare 	his 	report.
AmerisourceBergen lists in its brief crucial documents that it claims Mr. Teitelman should have
reviewed. Id. at 5. Additionally, AmerisourceBergen faults Mr. Teitelman for listing in his report
that he reviewed Mr. Place’s expert report but failing to specifically list that he reviewed the
documents cited in Mr. Place’s report. Id. While Mr. Teitelman’s report may have more thoroughly
listed the documents he relied on, that he might base his opinion on different facts than Mr. Place
does not render his opinion inadmissible. See Hopman v. Union Pac. R.R., 2020 WL 12654460,
at *6 (E.D. Ark. Sept. 9, 2020). 	The Court cannot conclude that Mr. Teitelman’s report is so
fundamentally 	unsupported 	that 	it 	should 	be 	excluded. 	AmerisourceBergen 	can, 	as 	it
acknowledges, challenge the factual basis and credibility of Mr. Teitelman’s testimony at trial.
Next, the Court will not exclude Mr. Teitelman’s opinions based on AmerisourceBergen’s
arguments that his opinions are factually flawed. 	AmerisourceBergen argues Mr. Teitelman is
unaware of the steps in its investigation. 	(Doc. 85, p. 8). 	It points to instances where Mr.
Teitelman’s opinion stated that AmerisourceBergen drew conclusions “solely on one telephone
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interaction” and relied “solely on algorithmic indicators” to identify red flags for diversion. Id.
(citing Doc. 72-12, pp. 12, 17). However, reviewing Mr. Teitelman’s report in its entirety reveals
that he is aware of various steps AmerisourceBergen took as part of its investigation. 	If
AmerisourceBergen contends that Mr. Teitelman misunderstands or should have placed more
emphasis on certain facts, those matters can be addressed through cross-examination.
However, the Court will exclude Mr. Teitelman’s testimony as it relates to his interpretation
of Ruan v. United States, 497 U.S. 450 (2022). 	Mr. Teitelman’s report attempts to explain how
Ruan applies to the way that AmerisourceBergen and the DEA should evaluate a pharmacist’s
corresponding responsibility. 	Several reasons counsel against allowing Mr. Teitelman to testify
about this topic, but the most critical is that experts cannot testify about legal matters.2F
3 S. Pine
Helicopters, Inc. v. Phx. Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). 	It is the
judge’s role to instruct the jury on legal matters. Id.
Mr. Teitelman’s testimony about Ruan impermissibly ventures into testimony about legal
matters because he applies the Ruan case out of its criminal context. See Doc. 72-12, pp. 9–10.
Mr. Teitelman’s report discusses how Ruan should change the DEA’s historical interpretation of
regulations. Id. at 10. Courts can allow experts to testify about regulations, but not in the way that
Mr. Teitelman discusses Ruan’s effect on regulations. See, e.g., Langenbau v. Med-trans Corp.,
167 F. Supp. 3d 983, 1004 (N.D. Iowa 2016) (discussing expert testimony on regulations). 	For
example, “‘experts may refer to regulations in addition to their industry experience,’ but they
cannot ‘properly testify as to whether a regulation was violated.’” Id. (quoting Cowden v. BNSF
3 Another reason is that Ruan concerned the government’s burden to prove a criminal
defendant’s state of mind in prosecutions of doctors for unauthorized prescribing of controlled
substances such as opioids. 597 U.S. at 454. The facts and reasoning in Ruan are of little utility
in this civil context.
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Ry. Co., 2013 WL 5442926, *6 (E.D. Mo. Sept. 30, 2013)) (emphasis in original). Mr. Teitelman
uses Ruan to discuss what AmerisourceBergen or the DEA must show before determining Manes
has violated a regulation. 	This is the Court’s role, not Mr. Teitleman’s, so his testimony about
Ruan is not admissible. 	If Manes believes Ruan changes the way the Court should instruct the
jury on the law, Manes can address that when proposing jury instructions.
Finally, the Court does not agree with AmerisourceBergen that Mr. Teitelman’s opinions
about AmerisourceBergen’s 	policies 	are 	unreliable 	because 	they 	are 	purely 	speculative.
AmerisourceBergen primarily argues that because Mr. Teitelman does not have personal
knowledge of how AmerisourceBergen’s policies have changed over time, his opinions on the
topic should be excluded. However, Mr. Teitelman bases his opinion in part on his previous work
with pharmacies that had a relationship with AmerisourceBergen. 	See Doc. 72-1, internally
numbered 213:12–215:17. Additionally, Mr. Teitelman can base his opinion on facts or data he
has been made aware of or personally observed. Fed. R. Evid. 703. Personal knowledge is not a
prerequisite to his testimony. As with the above, AmerisourceBergen’s criticism is of the factual
basis of Mr. Teitelman’s opinions. Those concerns can be addressed through cross-examination,
with the jury determining Mr. Teitelman’s credibility. See Bonner, 259 F.3d at 929.
IV. 	Conclusion
IT IS THEREFORE ORDERED that Manes’ motions (Docs. 67, 69) are DENIED.
IT IS FURTHER ORDERED that AmerisourceBergen’s motion (Doc. 72) is GRANTED
IN PART AND DENIED IN PART, as explained above.
IT IS SO ORDERED this 23rd day of July, 2024.
/s/P. K. Holmes , III
P.K. HOLMES, III
U.S. DISTRICT JUDGE
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