United States v. Blair
| Decision Date | 29 October 2021 |
| Docket Number | CRIMINAL ELH-19-00410 |
| Parties | UNITED STATES OF AMERICA, v. MATTHEW EDWARD BLAIR |
| Court | U.S. District Court — District of Maryland |
This Memorandum Opinion addresses multiple challenges to numerous proposed expert witnesses in a criminal fraud case. The motions were filed pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), and its progeny, as well as Rule 702 of the Federal Rules of Evidence (“F.R.E.”).
Defendant Matthew Blair founded the now defunct Blair Pharmacy Incorporated (the “Pharmacy”), which dispensed compounded drugs and creams. The Pharmacy was not a retail store, nor is Blair a pharmacist. He was initially indicted on August 27, 2019 (ECF 1) and later charged in a thirty-six-count Superseding Indictment, filed on March 3 2020. ECF 20. The Superseding Indictment alleges, inter alia, that from 2014 to 2016 Blair devised a scheme to defraud federal health care programs and insurance companies and laundered the funds that he derived from his fraud scheme.
In particular, Counts One through Twenty-One charge wire fraud in violation of 18 U.S.C. § 1343; Counts Twenty-Two through Twenty-Eight charge aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(1) and (b); Counts Twenty-Nine through Thirty-Three charge payments of remuneration, in violation of the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b); and Counts Thirty-Four through Thirty-Six allege money laundering, in violation of 18 U.S.C. § 1957.[1]
The parties have designated multiple experts. And, each witness proposes a multitude of opinions, many of which are contested. To be sure, “the line between proper and improper questions [to an expert] is not always clear. . . .” United States v. Offill, 666 F.3d 168, 174 (4th Cir. 2011). Thus, the rulings here are necessarily tentative, as they are dependent on a proper foundation, verification of qualifications, and the flow of evidence.
In a challenge to the government's experts, Blair has filed “Defendant's Amended Motion to Exclude Purported Expert Opinions” (ECF 106), supported by a memorandum (ECF 106-1) and multiple exhibits. In his submission, Blair seeks to exclude all of the opinions of Stephen Thomas, M.D., and to limit the opinions of Eric Tracy; Shauna Vistad; Steven McCall; and Melissa Parks.[2] The government's opposition is docketed at ECF 115, and includes several exhibits. Defendant's reply is at ECF 125.
In view of objections lodged by defendant as to Parks's qualifications, the government notified the defense on July 29, 2021, of its intent to substitute Kathy McNamara, CPA, C.F.E., for portions of Ms. Parks's proposed testimony. ECF 143; ECF 143-1; see also ECF 106-1 at 13, 36.[3] The defendant has objected. ECF 143-2.
I shall refer to ECF 106, ECF 106-1, and ECF 143-2 collectively as “Defendant's Motion.”
The government has filed “Government's Supplemental Omnibus Motion to Exclude Proposed Testimony of Defendant's Expert Witnesses” (“Government's Motion”). ECF 107.[4]It is supported by multiple exhibits. The Government's Motion seeks to exclude some of the opinions of Kevin G. McAnaney, Esq.; A. Greg Kelly, Jr., CPA; Donnie Calhoun, B. Pharm., R.Ph.; David S. Joseph, R.Ph., FIACP; and Ellen Bonner, Esq. ECF 107. The defendant's opposition to the Government's Motion is docketed at ECF 116, supported by exhibits. The government's reply is at ECF 126.
The government made its initial expert disclosures on November 3, 2020. These disclosures pertained, inter alia, to Dr. Thomas, Tracy, Vistad, and McCall. ECF 106-2; ECF 115-1 (same).[5] And, the government made its disclosure as to Parks on February 26, 2021. ECF 106-3, ECF 116-10 (same). In response to requests and inquiries from defendant, on February 4, 2021, the government provided additional information concerning the proposed testimony of Dr. Thomas (ECF 115-2), and on April 9, 2021, as to the testimony of Dr. Thomas, Lewis, Vistad, McCall, and Parks. ECF 115-4; ECF 116-4 (same).
Defendant made his initial disclosures as to Calhoun, Joseph, Kelly, and McAnaney on January 29, 2021. ECF 107-1. On February 12, 2021, the government requested additional information. ECF 107-2. By letters of February 18, 2021 and March 11, 2021, the defense responded to the government's inquiries. ECF 107-3; ECF 107-4.
Then, on March 12, 2021, defendant submitted disclosures as to rebuttal witnesses, including Bonner, as well as additional information as to Calhoun and Joseph. ECF 107-5. Thereafter, by letter of March 29, 2021, the government made another request for additional information (ECF 107-6), to which defendant responded on April 7, 2021. See ECF 107-7.[6]
Defendant provided supplemental information as to Mr. Kelly on May 5, 2021. ECF 116-11. And, he provided a supplemental disclosure as to Mr. Joseph on May 14, 2021. ECF 116-9. Then, on July 30, 2021, the defense advised of four “supplemental experiments” conducted by Mr. Joseph. ECF 142.
The first Daubert hearing was held on July 12, 2021, at which the testimony of Dr. Thomas and Mr. Joseph was presented. ECF 133. The transcript of the hearing is docketed at ECF 138. The Daubert hearing resumed on September 28, 2021. ECF 159. The transcript is at ECF 163.
The parties have lodged focused attacks on the opposing side's experts, sometimes in regard to qualifications and often as to the proposed opinions. In addition, the parties argue generally that the testimony does not meet the relevance requirements of Rules 401 and 402 of the Federal Rules of Evidence. See, e.g., ECF 106-1 at 38. And, they sometimes rely on F.R.E. 403.
For its part, the government asserts that it “plans to elicit testimony concerning - more generally - those practices and indicia of fraudulent billing practices that are common in complex fraud schemes such as this.” ECF 115 at 42. But, the government has clarified, id. at 40-45:
Initially, despite the numerous disputed opinions, counsel for both sides failed to identify them by number, which made it difficult to reference them. In response to the Court's concerns, on August 4, 2021, the defense submitted a 29-page summary of the parties' proposed expert opinions, including those in dispute. ECF 147. At the Daubert hearing on September 28, 2021, both sides referred to ECF 147 as a useful guidepost. I shall do the same during the course of this Memorandum Opinion.
A.
Pursuant to Rule 104(a) of the Federal Rules of Evidence, the court is responsible for determining “preliminary questions concerning the qualification of a person to be a witness” and “the admissibility of evidence.” This includes the admissibility of expert testimony.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court established that expert scientific testimony is admissible if “it rests on a reliable foundation and is relevant, ” and if it will assist the trier of fact to understand or determine a fact in issue. Id. at 597. Thereafter, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court extended the Daubert principles to all expert testimony requiring technical or specialized knowledge.
F.R.E. Rule 702 codifies those decisions and governs the admission of expert testimony. It provides:
Rule 702 “was intended to liberalize the introduction of relevant expert evidence.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). Pursuant to F.R.E. 702, a properly qualified expert witness may testify regarding technical, scientific, or other specialized knowledge in a given field if the testimony would assist the trier of fact in understanding the evidence or to determine a fact in issue, and the testimony is both reliable and relevant. See Sardis v. Overhead Door Corp., 10 F. 4th 268, 281 (4th Cir. 2021); United States v. Smith, 919 F.3d 825, 835 (4th Cir. 2019); United States v. Young, 916 F.3d 368, 379 (4th Cir. 2019).
The party seeking to present expert testimony has the burden to establish its admissibility by a preponderance of the evidence. See Bourjailu v. United States, 483 U.S 171, 175-76 (1987); Cady v. Ride-Away Handicap Equipment Corp., ...
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