     Case: 14-20697      Document: 00513203231         Page: 1    Date Filed: 09/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20697                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 22, 2015
                                                                           Lyle W. Cayce
SHAN KOVALY,                                                                    Clerk

              Plaintiff–Appellant

versus

WAL-MART STORES TEXAS, L.L.C.,

              Defendant–Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2599




Before KING, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

       The opinion issued on August 12, 2015, 2015 U.S. App. LEXIS 14346, is
WITHDRAWN, and the following opinion is substituted:



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-20697
                                        *******

       Shan Kovaly appeals a summary judgment on his tort claims against
Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”), complaining of the exclusion of
his expert witness under Federal Rule of Evidence 702. Because the expert’s
opinion on the standard of care was sufficiently reliable to pass the district
court’s gatekeeping assessment, Kovaly has offered evidence sufficient to sur-
vive summary judgment, and we reverse and remand.

                                              I.
       After entering the hospital in August 2012 complaining of chest pains,
Kovaly was discharged two days later with several prescriptions, which he
attempted to fill at a Wal-Mart pharmacy the next day. But the prescribing
physician had left blank the line on which he should have written the drug
quantities, so the pharmacist (who apparently had been on the job for only four
days) did not fill the prescriptions, thinking they were invalid without any
quantity shown. Instead, both the pharmacist and Kovaly tried unsuccessfully
(maybe because it was Labor Day weekend) to contact Kovaly’s doctors.
Finally, four days later, the prescribing physician contacted the pharmacy with
the quantities for each prescription, and the pharmacist filled them.

       The same day, Kovaly suffered a medical complication and was readmit-
ted to the hospital before he could pick up his prescriptions. He sued Wal-Mart
in state court for negligence and gross negligence, 1 alleging that its failure to
provide him with a 72-hour emergency supply of the prescriptions when his
doctor could not be reached caused him harm. Wal-Mart removed the case to



       1 As the district court observed, negligence and gross negligence are interrelated
claims. “A finding of negligence is a prerequisite to a finding of gross negligence.” Gonzalez
v. VATR Constr. LLC, 418 S.W.3d 777, 789 (Tex. App.—Dallas 2013, no pet.).
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federal court.

       To establish Wal-Mart’s negligence, Kovaly engaged an expert, Bennett
Brooke, to give opinion testimony on the standard of care for pharmacists, as
Texas law generally requires. 2 Brooke is a licensed Texas pharmacist with
significant experience as a pharmacy owner, state compliance officer, and
pharmacy-college instructor. He issued two written expert opinions on the
community standard of care for pharmacists, as well as an affidavit, concluding
that the pharmacist had a duty to provide a 72-hour emergency supply to
Kovaly and breached that duty. Wal-Mart disagreed, contending that the
72-hour duty applies only to renewal prescriptions, not new ones. Wal-Mart
challenged Brooke’s expert opinion in a motion to exclude and also moved for
summary judgment, both of which the district court granted.

                                              II.
       This case turns on whether the district court abused its discretion in
excluding Brooke as an expert witness because, without an expert, Kovaly’s
claim fails. See Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013).
Although Texas substantive law applies, the Federal Rules of Evidence govern
the admission of expert testimony in federal court. Huss v. Gayden, 571 F.3d
442, 452 (5th Cir. 2009).

       When seeking to introduce expert testimony, the offering party must
show “(1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” Id.; see
also FED. R. EVID. 702. The district court serves a gatekeeping function,


       2See Quijano v. United States, 325 F.3d 564, 567–68 (5th Cir. 2003) (“Expert testi-
mony is generally required to prove the applicable standard of care.”) (citing Hood v. Phillips,
554 S.W.2d 160, 165–66 (Tex. 1977)).
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“ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 141 (1999). The court does so by making “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is [ ] valid and
of whether that reasoning or methodology properly can be applied to the facts
in issue.” Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 592–93 (1993).
There must be “an adequate ‘fit’ between the data and the opinion proffered.” 3
And if the expert lacks “some objective, independent validation of his method-
ology,” it is not helpful to the factfinder and should be excluded. Brown,
705 F.3d at 536. 4

          Yet the district court’s gatekeeping role is no substitute for the adversar-
ial system. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002). “Vig-
orous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. A Dau-
bert hearing should not be transformed into a full merits trial.                    Pipitone,
288 F.3d at 250.

          As the district court recognized, Brooke was well qualified to testify on
the standard of care for Texas pharmacists: He had been a pharmacist for forty
years and had significant experience running his own pharmacies, working as
a state compliance officer, and teaching at a pharmacy college. The court
excluded his testimony because it decided that his methodology—which encom-
passed, in part, reference to state pharmacy laws and regulations—was




        Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc); see also
          3

Brown, 705 F.3d at 535.
          4   See also Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005); FED. R. EVID.
702(a).
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                                       No. 14-20697
unreliable. Specifically, the court reasoned that nothing in the regulations
definitively authorizes a pharmacist to provide a 72-hour emergency supply for
an original prescription, and it concluded that doing so would actually violate
Texas law.

       But the district court’s reliance on the statutory and regulatory provi-
sions was misplaced because resolving the state-law question is unnecessary
to evaluate whether Brooke’s opinion is reliable. A dispute between experts
over the applicability and interpretation of certain regulations in the particu-
lar situation does not render an expert’s opinion unreliable if the opinion is
otherwise grounded in a proper foundation and the expert is qualified by train-
ing, education, and experience. 5

       Brooke’s opinion is based on more than specific provisions of the Texas
Health and Safety Code, and his professional experience with pharmacy prac-
tice and compliance—as well as his review of the specific records in this case—
also bears on reliability. Establishing a medical standard of care requires an
expert to opine on what decisions a reasonably prudent professional in the rele-
vant community could have made regarding the medical issue. Corp. Health
Ins., Inc. v. Tex. Dep’t of Ins., 220 F.3d 641, 645 (5th Cir. 2000). That makes
an expert opinion on the standard of care qualitatively different from, say, an
opinion on whether a tire’s design causes blowouts. See Kumho Tire, 526 U.S.
at 143–44. The Daubert factors 6 do not apply as readily to the former, so courts
must consider other factors when determining admissibility, such as whether


       5See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc) (“The
proponent need not prove to the judge that the expert’s testimony is correct, but . . . that the
testimony is reliable.”); Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 585 (5th Cir. 2003)
(“The party seeking to have the district court admit expert testimony must demonstrate that
the expert’s findings and conclusions are reliable, but need not show that the expert’s findings
and conclusions are correct.”).
       6   See Daubert, 509 U.S. at 593–94.
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                                       No. 14-20697
the expert has enough education and relevant experience to reach a reliable
opinion. 7

       Brooke’s written expert opinions show that he did have a sufficiently
reliable basis to assert that the standard of care called for Wal-Mart’s pharma-
cist to provide a 72-hour emergency supply of Kovaly’s prescriptions while
attempting to contact the doctor. Brooke based that opinion on his background
and understanding of pharmacy practice in Texas and on state regulations that
call on pharmacists to exercise professional judgment. The standard of care
for Texas pharmacists is not governed by statute but is the standard of how a
“reasonably prudent pharmacist would have acted.”                   Morgan v. Wal-Mart
Stores, Inc., 30 S.W.3d 455, 467 (Tex. App.―Austin 2000, pet. denied). 8

       Brooke specifically analyzed how the various regulations overlap and
how the history of the regulations led to the codification of particular excep-
tions but not others. He explained that his opinion was based not only on the
regulations but also on their history, accepted practice, and pharmacist train-
ing. As a result, the court should not have excluded the expert testimony as
unreliable under Rule 702.

       That dooms the summary judgment, which followed logically from the
evidentiary ruling. Brooke’s expert testimony, once admitted, creates a mate-
rial fact issue in dispute with Wal-Mart’s expert as to the relevant standard of



       7Pipitone, 288 F.3d at 247; see also Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1336 (11th
Cir. 2010); Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 (6th Cir.
2004); Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406–07 (3d Cir. 2003).
       8 See also Morgan, 30 S.W.3d at 467 (“[A]dministrative rules demonstrate that phar-
macists in Texas are trusted professionals with varied and important responsibilities [but]
they cannot be reasonably read to impose a legal duty [on pharmacists].”); CVS Pharmacy,
Inc. v. Ballard, No. 01-12-00253-CV, 2012 WL 4742652, at *4 (Tex. App.―Houston [1st Dist.]
Oct. 4, 2012, no pet.) (mem. op.) (holding that strict adherence to the relevant statues and
adherence to the proper standard of care were not synonymous).
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                                No. 14-20697
care and whether Wal-Mart had breached that standard and proximately
caused Kovaly’s injuries. The fact that Brooke’s testimony passes muster for
trial does not mean, however, that his view will necessarily prevail, but only
that it must be considered along with all other evidence to be presented by the
two sides.

      The summary judgment is REVERSED and REMANDED for further
proceedings as needed. We express no view on what rulings the district court
should issue on remand.




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