City of Huntington v. Amerisourcebergen Drug Corp.

• Decision Date: 26 April 2021
• Docket Number: CIVIL ACTION NO. 3:17-01665,CIVIL ACTION NO. 3:17-01362
• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Parties: THE CITY OF HUNTINGTON, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants. CABELL COUNTY COMMISSION, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

THE CITY OF HUNTINGTON, Plaintiff,
v.
AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

CABELL COUNTY COMMISSION, Plaintiff,
v.
AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

CIVIL ACTION NO. 3:17-01362
CIVIL ACTION NO. 3:17-01665

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

April 26, 2021

MEMORANDUM OPINION AND ORDER

Pending before the court is McKesson Corporation's Motion in Limine to Exclude Evidence Regarding a Former Employee's Plea. See ECF No. 1045. That motion is fully briefed and ripe for decision.

I.

From 2008 to 2014, David Gustin served as a Director of Regulatory Affairs ("DRA") for McKesson's North Central Region, which included portions of Ohio, West Virginia, and Kentucky.

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Gustin left his position as a DRA in 2014, and retired from McKesson in 2016.

On July 6, 2020, in the United States District Court for the Eastern District of Kentucky, Gustin pleaded guilty to a one-count information charging him with knowingly failing to file suspicious order reports, in violation of 21 U.S.C. § 842(a)(5). Under the plea agreement, in exchange for Gustin's guilty plea to the misdemeanor, the government agreed to dismiss a 2019 indictment charging him with conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846. Gustin was sentenced to two years of probation on the misdemeanor and the indictment was dismissed.

In its motion, McKesson asks the court to exclude: (1) Gustin's plea agreement and the information to which he pled guilty; and (2) Gustin's 2019 indictment. According to McKesson, the documents are inadmissible hearsay. Plaintiffs argue that Gustin's plea agreement and the criminal information are admissible under Federal Rule of Evidence 803(8). Plaintiffs stated that they did not plan to seek to introduce evidence of the indictment. See ECF No. 1129 at 4 n.9. In its reply, McKesson also asks the court to exclude the misdemeanor judgment.¹

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II.

Hearsay evidence is inadmissable unless a hearsay exception applies. See Fed. R. Evid. 802. The parties seem to agree that the plea agreement, criminal information, and judgment are hearsay. But that is where any agreement ends. McKesson contends that Federal Rule of Evidence 803(22) controls while plaintiffs argue that Federal Rule of Evidence 803(8) does.

A. Rule 803(22) and 803(8)

Federal Rule of Evidence 803(22) addresses when a judgment of a previous conviction should be admitted as an exception to the hearsay rule. The rule holds that "[e]vidence of a final judgment of conviction" is not excluded by the rule against hearsay "if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendre plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than one year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant." Fed. R. Evid. 803(22).

Plaintiffs argue that the plea agreement and the information are admissible under Federal Rule of Evidence 803(8)(A)(iii) which provides: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . A record or statement of a public office if: . . . (A) it sets

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out: . . . (iii) in a civil case . . . factual findings from a legally authorized investigation."

Rule 803(22) presumably governs the admissibility of Gustin's Judgment in a Criminal Case, his plea agreement, and the criminal information to which he pled guilty.² And, because Mr. Gustin pleaded guilty to a misdemeanor not punishable by "imprisonment for more than one year," that evidence is not admissible. Regarding the admissibility of judgments from other cases, the...