Federal Trade Commission v. Vyera Pharmaceuticals, LLC
- Denise Cote
- 1:20-cv-00706
- U.S. District Court · Southern District of New York
- 8
In Federal Trade Commission v. Vyera, Judge Cote granted the plaintiffs’ motion to strike parts of a defense expert’s trial testimony.
The ruling affected the Federal Trade Commission and the seven state plaintiffs, as well as Vyera Pharmaceuticals, LLC, Phoenixus AG, Martin Shkreli, Kevin Mulleady, and defense expert John S. Russell, by striking specified portions of Russell’s trial testimony.
What happened
In Federal Trade Commission v. Vyera Pharmaceuticals, LLC, the Federal Trade Commission and seven states asked the court to strike portions of defense expert John S. Russell’s affidavit in an antitrust case. The challenged portions concerned whether Daraprim samples and the drug ingredient pyrimethamine were available from alternative sources.
The plaintiffs argued that Russell was not qualified to testify about procuring Daraprim or sourcing the ingredient. They also argued that the challenged material merely recited facts for the factfinder to evaluate, rather than providing expert analysis. The defendants acknowledged that the report summarized facts but argued the summaries were relevant, helpful in responding to the plaintiffs’ experts, and objective.
Judge Denise Cote granted the motion. She ruled that Russell lacked sufficient experience to provide expert opinions on the disputed topics and that the challenged passages were improper factual narratives that invaded the factfinder’s role. The court struck the identified portions of his trial testimony.
The detailed version
- Federal Trade Commission v. Vyera Pharmaceuticals, LLC · No. 1:20-cv-00706
- Denise Cote
- Nov. 18, 2021
Background
The Federal Trade Commission and seven states moved to strike portions of the affidavit of defense expert John S. Russell. The motion concerned paragraphs 11.iii, 11.vi, 66–92, and 125–144. The affidavit was being used for direct testimony at an upcoming trial, and Russell was offered as a rebuttal witness to plaintiffs’ experts on Vyera’s Daraprim distribution system and agreements with active pharmaceutical ingredient suppliers.
Russell identified two opinions relevant to the motion. First, he opined that procurement companies had obtained quotes and purchased Daraprim, showing that Daraprim samples were available to generic manufacturers. Second, he opined that generic manufacturers had found alternative sources for pyrimethamine and that the ingredient was available because several companies had acquired it. The challenged paragraphs supplied factual support for those opinions but, according to the court, contained no independent expert analysis and instead presented a chronology of events.
Arguments and analysis
The plaintiffs argued that Russell was not qualified to provide expert opinions about procurement of the marketed drug or sourcing of the active ingredient. They also argued that the challenged material was a factual narrative unrelated to admissible expert analysis and improperly took over the role of the factfinder—the person responsible for deciding what the facts show.
The court accepted both arguments as independent grounds for striking the material. Russell had admitted during his deposition that he had no direct experience acquiring the marketed drug. Although he had some experience researching active-ingredient manufacturers, the court found that experience too limited and sporadic to qualify him as an expert in evaluating supplier capabilities or alternative suppliers.
The court also held that the affidavit’s factual summaries were not proper expert testimony. The defendants argued that the summaries were relevant, helpful in rebutting the plaintiffs’ experts, and based on objective facts. The court rejected those arguments, explaining that facts may be included in expert testimony when they provide context for or support an admissible expert opinion, but a bare recitation of facts improperly usurps the factfinder’s role.
Ruling
The court granted the plaintiffs’ October 20, 2021 motion to strike portions of John S. Russell’s trial testimony. The ruling addressed the admissibility and scope of the defense expert’s testimony; it did not decide the underlying antitrust claims in the portion of the opinion provided.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.