Shan Kovaly v. Wal-Mart Stores Texas, L.L.C.Shan Kovaly v. Wal-Mart Stores Texas, L.L.C.
DTND engaged in a scheme to delay foreclosures by petitioning for temporary restraining orders in state court and dismissing those claims upon removal. DTND was also party to four materially identical actions that were dismissed on the merits. This shows that DTND had knowledge its claims were meritless but nevertheless filed to delay foreclosure. The district court‘s findings that DTND‘s claims were meritless and intended to harass or delay were reasonable and proper.
Having found that DTND was noncompliant with Texas sanction rules, the district court properly assessed a $20,000 penalty that it determined to be sufficient to prevent repetition of the misconduct. The court also properly ordered, as allowed by Rule 215 and
For these reasons, we AFFIRM the decision of the district court.
Iain Gordon Simpson, Simpson, P.C., John A. Davis, Jr., Davis & Davis, Houston, TX, for Plaintiff-Appellant.
John Andrew Ramirez, George T. Jackson, Esq., Bush & Ramirez, P.L.L.C., Houston, TX, for Defendant-Appellee.
Before KING, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The opinion issued on August 12, 2015, 2015 U.S.App. LEXIS 14346, is WITHDRAWN, and the following opinion is substituted:
Shan Kovaly appeals a summary judgment on his tort claims against Wal-Mart Stores Texas, L.L.C. (“Wal-Mart“), complaining of the exclusion of his expert witness under
After entering the hospital in August 2012 complaining of chest pains, Kovaly was discharged two days later with several prescriptions, which he attempted to fill at a Wal-Mart pharmacy the next day. But the prescribing physician had left blank the line on which he should have written the drug quantities, so the pharmacist (who apparently had been on the job for only four days) did not fill the prescriptions, thinking they were invalid without any quantity shown. Instead, both the pharmacist and Kovaly tried unsuccessfully (maybe because it was Labor Day weekend) to contact Kovaly‘s doctors. Finally, four days later, the prescribing physician contacted the pharmacy with the quantities for each prescription, and the pharmacist filled them.
The same day, Kovaly suffered a medical complication and was readmitted to the hospital before he could pick up his prescriptions. He sued Wal-Mart in state court for negligence and gross negligence,1 alleging that its failure to provide him with a 72-hour emergency supply of the prescriptions when his doctor could not be reached caused him harm. Wal-Mart removed the case to federal court.
To establish Wal-Mart‘s negligence, Kovaly engaged an expert, Bennett Brooke, to give opinion testimony on the standard of care for pharmacists, as Texas law generally requires.2 Brooke is a licensed Texas pharmacist with significant experience
II.
This case turns on whether the district court abused its discretion in excluding Brooke as an expert witness because, without an expert, Kovaly‘s claim fails. See Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013). Although Texas substantive law applies, the Federal Rules of Evidence govern the admission of expert testimony in federal court. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
When seeking to introduce expert testimony, the offering party must show “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Id.; see also
Yet the district court‘s gatekeeping role is no substitute for the adversarial system. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. A Daubert hearing should not be transformed into a full merits trial. Pipitone, 288 F.3d at 250.
As the district court recognized, Brooke was well qualified to testify on the standard of care for Texas pharmacists: He had been a pharmacist for forty years and had significant experience running his own pharmacies, working as a state compliance officer, and teaching at a pharmacy college. The court excluded his testimony because it decided that his methodology—which encompassed, in part, reference to state pharmacy laws and regulations—was unreliable. Specifically, the court reasoned that nothing in the regulations definitively authorizes a pharmacist to provide a 72-hour emergency supply for an original prescription, and it concluded that doing so would actually violate Texas law.
Brooke‘s opinion is based on more than specific provisions of the Texas Health and Safety Code, and his professional experience with pharmacy practice and compliance—as well as his review of the specific records in this case—also bears on reliability. Establishing a medical standard of care requires an expert to opine on what decisions a reasonably prudent professional in the relevant community could have made regarding the medical issue. Corp. Health Ins., Inc. v. Tex. Dep‘t of Ins., 220 F.3d 641, 645 (5th Cir. 2000). That makes an expert opinion on the standard of care qualitatively different from, say, an opinion on whether a tire‘s design causes blowouts. See Kumho Tire, 526 U.S. at 143-44, 119 S.Ct. 1167. The Daubert factors6 do not apply as readily to the former, so courts must consider other factors when determining admissibility, such as whether the expert has enough education and relevant experience to reach a reliable opinion.7
Brooke‘s written expert opinions show that he did have a sufficiently reliable basis to assert that the standard of care called for Wal-Mart‘s pharmacist to provide a 72-hour emergency supply of Kovaly‘s prescriptions while attempting to contact the doctor. Brooke based that opinion on his background and understanding of pharmacy practice in Texas and on state regulations that call on pharmacists to exercise professional judgment. The standard of care for Texas pharmacists is not governed by statute but is the standard of how a “reasonably prudent pharmacist would have acted.” Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 467 (Tex.App.-Austin 2000, pet. denied).8
Brooke specifically analyzed how the various regulations overlap and how the history of the regulations led to the codification of particular exceptions but not others. He explained that his opinion was based not only on the regulations but also on their history, accepted practice, and pharmacist training. As a result, the court should not have excluded the expert testimony as unreliable under Rule 702.
The summary judgment is REVERSED and REMANDED for further proceedings as needed. We express no view on what rulings the district court should issue on remand.
JERRY E. SMITH
CIRCUIT JUDGE