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We are on a DRI panel this September in Nashville discussing challenges to expert testimony, so we are especially vigilant when it comes to new cases on this subject. The rulings on expert admissibility in United States v. Biogen Idec., Inc., 2022 U.S. Dist. LEXIS 120549 (D. Mass. July 8, 2022), are not especially surprising. There is too much genuflecting in the direction of interpreting Rule 702 “liberally” to favor admissibility, and too much muttering about the “considerable latitude” courts have in deciding whether expert testimony would help thinking, and too much citation of older cases predating post-Daubert amendments to Rule 702, but most of the rulings in Biogen are sensible.

In Biogen, a plaintiff-relator sued the defendant for allegedly causing health care providers to file fraudulent Medicare and Medicaid reimbursement claims in violation of the False Claims Act, 31 U.S.C. Sections 3728, et seq., and various state laws, by paying kickbacks to influence them to prescribe the defendant’s multiple sclerosis products in violation of the Anti-Kickback Statute, 42 U.S.C. Section 1320a-7 [AKS].

The plaintiff proffered testimony by several experts challenging the educational value of programs offered by the defendant to health care providers. The defendant filed what the court called Daubert motions, though we now prefer calling them Rule 702 motions, in the hope of leaving some dumb Daubert precedents behind. The defendant won some arguments and lost some.

We’ll get to the loss first. The defendant argued that the experts lacked the necessary experience to opine on the educational programs, and that such opinions, in any event, lacked reliability and relevance. The court had a flexible view of the experience requirement (remember My Cousin Vinny?) and concluded that the plaintiff’s experts (two doctors and a “strategic healthcare marketing” consultant) possessed the requisite experience, read the right materials, and adequately explained their analysis. The defendant carped about cherry-picking, but the court saw insufficient detail to support that accusation. To the extent that the defendant argued that the expert opinions were arbitrary or illogical, the court suggested that “such objections are better suited for cross-examination.”

Perhaps you’ve heard that song before.

But now let’s get to the good stuff.

Statements Regarding Intent – Out

Because expert testimony can carry with it an unwarranted aura of special trustworthiness, courts must guard against letting it intrude in areas that jurors, armed with common sense, are uniquely competent to judge without the aid of experts. A party’s intent is one of those areas where the jury needs no help from expert mind readers. The testimony offered by the plaintiff-relator’s experts in Biogen “goes a step too far and leaves no room for the jury to draw its own inferences” as to the defendant’s intent. Accordingly, the court held that while the experts “may opine about standards and alleged nonconformance with such standards from which a jury might infer intent, the experts may not offer their opinions as to what inferences can be drawn. Such testimony is excluded.”

Narrative Summaries of the Evidence – Out

A narrative summary of a company’s documents should be presented directly to a fact finder through a fact witness, not an expert. In Biogen, the court granted the defendant’s motions to exclude narrative summaries of the record evidence and credibility determinations. But the court denied such motions “to the extent they seek to exclude expert testimony explaining why the expert found certain evidence meaningful for his or her conclusion.” Does that last bit leave open a hole that plaintiff experts can drive several trucks through, filled with commentary on company documents? Probably.

Opinions on Legal Issues – Out

Few things annoy us more than plaintiff experts who affect a look of forlorn concern and fret over a company’s violation of laws and regulations. If narrating document summaries usurps the jury’s function, labeling a company’s activities as illegal usurps the judge’s function. Courts mostly get this issue right and clamp down on experts who claim to be experts on the law. But, as the Biogen court acknowledged, “the line between testimony regarding what the law requires and testimony describing how an industry practice typically operates is not always clear.” In the end, the Biogen court held that the plaintiff expert testimony was “admissible to the extent she opines on industry standards used to avoid AKS violations, but she cannot opine as to what does not constitute an AKS violation.” That might be a hard line to police, but it seems like the right line.