This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient “to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use” unless the doctor or patient asks the pharmacist about these drugs’ efficacy first. A pharmacist who violates the statute by alerting a doctor or patient that the FDA has not approved either drug to treat a particular disease may be professionally disciplined, including potentially losing her license. But a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction. Plaintiff, a pharmacist, contended that the statute violated the First Amendment.
Dennis K. McAllister is a pharmacist Defendants have retained to offer expert testimony. After reviewing McAllister’s expert report, Plaintiff filed a motion to exclude his opinions that offered legal opinion and legal analysis.
It is his opinion that the societal interests at stake include protecting the prescriberpatient relationship, guarding the public from possible harassment, ensuring appropriate professional competence from pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.
The prescriber-patient relationship requires individual assessment and personalized care after examination by a doctor or medical professional. This relationship involves a level of time, trust, and sharing of information that is critical for society and the health of individual patients. According to McAllister, the statute protects this relationship by limiting the way pharmacists may interact with patients or doctors.
Pharmacy Expert Witness
Dennis K. McAllister is the founder of McAllisteRx Consulting LLC. He has been Director of Pharmacy in three hospitals. He is consultant and expert with years of experience in the areas of pharmacy standard of care, negligence, pharmacy laws and regulations, pharmacy automation and development of innovative practice models.
McAllister served on the Arizona State Board of Pharmacy for 23 years, and as its president four times. Moreover, he served on the Executive Committee of the National Association of Boards of Pharmacy (NABP) for 6 years, and as its president in 2005-2006.
Discussion by the Court
In response, Defendants extolled McAllister’s expert qualifications as a pharmacist and noted that it is permissible for an expert to opine on industry standards and practices.
But Defendants did not dispute that Eighth Circuit law prohibits a pharmacist from interpreting statutes or offering legal opinions and analysis. Nor could they, because it is firmly established that an expert may not testify as to legal issues or express legal opinions.
Held
The Court granted Plaintiff’s motion to exclude McAllister ‘s opinions. The Court barred McAllister from testifying that : (1) the statute protects the prescriber-patient relationship by “limiting the way pharmacists may interact with patients or doctors;” (2) “the statute identifies an area where” the goal of public trust in pharmacists “may be furthered;” or (3) “the law furthers the important societal interests and interests of the profession of ensuring accurate, reliable, consistent, and authoritative information is conveyed, protecting the prescriber-patient relationship, ensuring appropriate professional competence for pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.”
Key Takeaway:
Expert testimony on legal matters is not admissible because matters of law are for the trial judge. In other words, a district court may exclude the testimony of an expert if it finds that such testimony constitutes an impermissible instruction on the law.
Case Details:
| Case Caption: | Stock V. Gray Et Al |
| Docket Number: | 2:22cv4104 |
| Court: | United States District Court, Missouri Western |
| Order Date: | May 23, 2024 |
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