District court excluded pharmacist expert witness testimony based on unreliable methodology. The Circuit court reversed.
Facts: In this case (Shan Kovaly v. Wal-Mart Stores Texas, L.L.C. – United States Court of Appeals for the Fifth Circuit – August 12th, 2015), the plaintiff (Kovaly) was discharged from the hospital two days after being admitted for chest pains. He was given prescriptions which he brought to the defendant (Wal-Mart) to fill. The pharmacist refused to fill the prescription because the quantities were not written down. After four days of trying to get in touch with the prescribing doctor, the prescription was finally filled, but, on the same day, Kovaly suffered a medical condition and was readmitted to the hospital. The defendant sued Wal-Malt for negligence in Texas state court and the case was removed to federal court. In order to prove his case, Kovaly hired Bennett Brooke, a pharmacology expert witness, to testify on the standard of care for pharmacists.
Brooke submitted two opinions; one involving the community standard of case for pharmacists and the other discussing the the duty that the pharmacist at Wal-Mart had to provide Kovaly with a 72-hour emergency supply of medication. The defendants did not agree, stating that the 72-hour duty applies to prescription renewals, not new ones. Wal-Mart filed a motion to challenge the testimony of the expert witness and the district court granted the motion as well as summary judgment in favor of the defendant. The plaintiff appealed.
Discussion: The plaintiff appeals the opinion of the district court that the methodology applied by Brooke was unreliable. The court does concede that Brooke is well qualified to testify on the standard of care for pharmacists, but noted that there was nothing in the Texas state pharmacy regulations stating that a pharmacist must provide a 72-hour emergency supply for an original prescription. In fact, it stated, providing such an emergency supply would violate state laws.
The appeals court disagrees with the latter statement as it applies to the reliability of Brooke’s opinion. Even if it were illegal to provide an emergency supply of medication, this fact does not go to the core of a Daubert motion, which looks at reliability as one factor. Brooke’s expert opinions do show that, based on his background of pharmacy practice in Texas and his knowledge of state regulations that discuss professional judgment, he did have a reliable basis on which to promote his thoughts on providing a 72-hour emergency supply of medication.
Brooke analyzed the various regulations, how they overlap, and how their history led to the legislature to codify particular exceptions in the law. He based his opinions on this historical analyzation, as well as their accepted practice and his pharmaceutical training. Thus, the district court should not have excluded Brooke’s testimony.
The court did warn the parties that, even though the testimony has passed the Daubert test, this does not mean that it will prevail at trial.
Held: The district court’s opinion excluding the testimony of Bennett Brooke is reversed. In addition, the summary judgment is thrown out.