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Petri v. Virginia Board of Medicine

United States District Court, E.D. Virginia, Alexandria Division

October 23, 2014



CLAUDE M. HILTON, District Judge.

THIS MATTER comes before the Court on Defendants' Randolph Clements, Kamlesh Dave, Siohan Dunnavant, William Harp, Jane Piness, Wayne Reynolds, and Virginia Board of Medicine (collectively "Defendants") Motion in Limine to Exclude the Expert Testimony of David Edelberg, MD and Stephanie J. Chaney, DC. Defendants are members of the Board, sued in their individual capacity as competitors with chiropractors in Virginia and in their capacity as members of the Board, as well as the Board itself. Plaintiff Yvoune Petri ("Petri" or "Plaintiff"), is a Doctor of Chiropractic. Plaintiff's Complaint alleges the Defendants entered an agreement to allocate the relevant service markets and exclude chiropractors in violation of the Sherman Antitrust Act, 15 U.S.C. § 1, as well as intentional interference with existing contracts, prospective contracts, and prospective economic advantage in violation of Virginia state law.

Plaintiff has been a licensed chiropractor in Virginia since 2006, practicing in Vienna, Virginia. In her practice, she incorporates complementary and alternative medicine, functional neurology, and functional medicine in order to address underlying health issues such as neuropathy, autoimmune conditions, Type 2 diabetes, and thyroid conditions. Defendant Virginia Board of Medicine was established by the Commonwealth of Virginia to regulate all forms of medicine, including chiropractic.

In February 2013, the Board conducted a formal hearing and determined that Petrie was in violation of various sections of the Virginia Code regulating the practice of medicine. Specifically, Defendants found that Plaintiff advertised and promoted her services in a manner that was false and misleading by holding herself out as a nutritionist able to "reverse" Type 2 diabetes and treat thyroid and metabolic disorders; holding herself out as a registered dietician and nutritionist without meeting the criteria set forth in Virginia law; and acting outside of the scope of chiropractic by offering diet and nutrition counseling, ordering blood, saliva, and urine testing, and performing procedures with a laser, all beyond the scope of chiropractic under Virginia law. The Board voted to sanction Petrie by suspending her license to practice chiropractic for six months and imposing a $25, 000 fine. Plaintiff has appealed this decision to the Virginia Court of Appeals.

In addition to her appeal of the sanction, Plaintiff has brought suit in this Court alleging the Board's actions violated federal antitrust law as well as Virginia law. Count I alleges that the Defendants entered an agreement to allocate the relevant service markets to medical doctors and excluded chiropractors, including Plaintiff, from competing in those markets in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. Additionally, Counts II, III, and IV allege intentional interference with existing contracts, prospective contracts, and prospective economic advantage, respectively, in violation of Virginia state law. These claims are based on Defendants alleged conduct that interfered in numerous ways, like anticompetitive conduct, improper communication with third parties that contract with Plaintiff, and improper publication of the sanction. Plaintiff requests that this Court set aside the Board's Order against her as an unlawful restraint on interstate trade and commerce and enjoin Defendants from limiting the scope of chiropractic practice beyond the limitations under Virginia law. Plaintiff further seeks damages to be determined for the interference claims and treble damages for the anticompetitive conduct.

In support of her claims, Plaintiff has submitted expert reports for Dr. David Edelberg and Dr. Stephanie Chaney. Required under Federal Rule of Civil Procedure 26(a)(2), an expert report is a complete statement of all opinions a witness will express at trial. Defendants filed a motion in limine to exclude the testimony of these two expert witnesses.

A motion in limine allows the trial court to rule in advance of trial on the admissibility and relevance of anticipated evidence, including expert testimony. Luce v. United States , 469 U.S. 38, 40 n. 2 (1984). The court's ruling on the motion is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Id. at 41. The party offering the expert witness, in this case Plaintiff, has the burden of showing, by a preponderance of the evidence, that the expert's testimony is admissible. Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 (4th Cir. 2001).

"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if... the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue...." Fed.R.Evid. 702. In order to be admissible, the Court must determine whether the expert's testimony "rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 580 (1993); see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147 (1999) (holding that the Daubert "gatekeeping" obligation to determine relevance and reliability applies to all forms of expert testimony). The purpose of this inquiry is to ensure that an expert's testimony is not speculative. Daubert , 509 U.S. at 590. Further, all irrelevant evidence is simply inadmissible. Fed.R.Evid. 403.

Evidence is relevant if it has any tendency to make any fact consequential to the outcome more or less probable. Fed.R.Evid. 401. "The threshold for relevancy is relatively low." United States v. Powers , 59 F.3d 1460, 1465 (4th Cir. 1995). To satisfy the relevance standard, "evidence need only be worth consideration by the jury, ' or have a plus value.'" United States v. Leftenant , 341 F.3d 338, 346 (4th Cir. 2003) (quoting United States v. Queen , 132 F.3d 991, 998 (4th Cir. 1997)). Expert testimony, however, "which does not relate to any issue in the case is not relevant and, ergo, nonhelpful." Daubert , 509 U.S. at 591. There must be a "valid... connection between the expert's testimony and the pertinent inquiry before the court as a precondition to admissibility." Garlinger v. Hardee's Food Sys., Inc., 16 F.App'x 232, 235 (4th Cir. 2001).

The expert reports submitted on behalf of Dr. Edelberg and Dr. Chaney show that their testimonies are not relevant for determining any issues at hand or material facts. The second prong of the Daubert inquiry, the reliability of the testimony, need not be addressed.

The expert report of Dr. Edelberg, entitled "Highlights in the Restraint of Trade History of U.S. Medicine, " focuses on the historical relationship between conventional medicine and nonconventional alternatives, such as chiropractic. For the most part, this relationship has been marked by conventional medicine's attempt to "exercise its dominance by suppressing practitioners who are, for want of a better term, unconventional." The report details the efforts of medical boards and the American Medical Association (AMA) to "contain and eliminate" chiropractic. Conventional medicine, the report explains, feels threatened because "chiropractors were and are now considered serious financial competition." In regards to Dr. Petri's sanction, Dr. Edelberg states that the members of the Board have "absolutely no training in chiropractic medicine" and "[n]o chiropractor can expect fair judgment in atmosphere (sic) where she's being reviewed not by peers but by her competition."

The expert report of Dr. Chaney focuses on the generally broad scope of chiropractic. First, the report describes the basic nature of chiropractic, as well as the training and accreditation necessary to become a Doctor of Chiropractic (DC). Next, the report explains the connection between chiropractic and pharmacology and the necessity for DCs to have training in this area. In addition to pharmacology, DCs are trained to take and read radiographic studies as well as "blood, urine, saliva and stool tests." These skills are necessary so that the DC knows when to refer a patient to a specialist. The report goes on to describe the treatments generally within the scope of chiropractic in most states, including spinal adjustments, electric stimulation, non-ablative laser and light therapy, and dietary and hygienic interventions. The report states that diet and lifestyle interventions can effectively reverse diseases such as Type 2 Diabetes and "[t]he general public has the right to access to alternatives that work." Finally, the report states that "[m]ost boards regulating chiropractic in the U.S. are independently run by Governor-appointed Doctors of Chiropractic." The report does not discuss the scope of chiropractic specifically in Virginia nor how chiropractic is regulated in Virginia.

The testimonies of Dr. Edelberg and Dr. Chaney have no connection to Plaintiff's state law claims contained in Counts II, III, and IV. These claims allege that Defendants' actions intentionally interfered with Dr. Petri's existing contracts, prospective contracts, and prospective business. The prima facie case of intentional inference with existing contracts requires

(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant ...

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