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United States v. Nasher-Alneam

United States District Court, S.D. West Virginia, Charleston

March 25, 2019



          David A. Faber Senior United States District Judge.

         The defendant filed a Motion to Exclude the Testimony of Dr. Gene Kennedy (ECF No. 66) and a motion to Exclude the Testimony of Dr. Robert Kaniecki as to Muhammed Samer Nasher-Alneam (ECF No. 72). On January 30, 2019, the court held a pretrial motions hearing to discuss, in part, the defendant's motions to exclude the government's proposed expert witnesses. On February 5, 2019, the court Ordered a Daubert hearing for the government's offered expert witnesses, Dr. Gene Kennedy and Dr. Robert Kaniecki, as well as the defendant's offered expert witnesses, James Murphy, M.D. and Richard Stripp, Ph.D. (See ECF No. 88). Due to health issues, Richard Stripp will no longer be used as an expert witness by the defendant. In light of this circumstance, the court has allowed the defendant time to secure an additional expert witness.

         On March 5, 2019, the court held a Daubert hearing to consider whether to allow the testimony of the proffered witnesses. At the conclusion of the Daubert hearing, the court DENIED the defendant's motions to exclude the testimony of Dr. Gene Kennedy and Dr. Robert Kaniecki. (ECF Nos. 66, 72). The court also concluded that the testimony of Dr. James Murphy was allowed.[1] The court found that Dr. Gene Kennedy, Dr. Robert Kaniecki, and James Murphy, M.D. are all qualified to testify as expert witnesses in the matter.

         I. The Legal Framework

         For the parties' expert witnesses' testimony to be admissible, they must be qualified as experts pursuant to Rule 702 of the Federal Rules of Evidence. Rule 702 provides that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on 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.

Fed. R. Evid. 702. Helpfulness to the trier of fact is the touchstone of Rule 702. Kopf v. Skyrm, 933 F.3d 374, 377 (4th Cir. 1993. Expert testimony "is presumed to be helpful unless it concerns matters within the everyday knowledge and experience of a lay juror." Id.

         Under the Federal Rules of Evidence, trial judges must ensure that expert testimony is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The Supreme Court has emphasized that "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular testimony is reliable." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). In Daubert, the Supreme Court established several factors trial courts may consider in admitting expert testimony, including (1) whether the expert's theory or technique has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the theory is generally accepted. Daubert, 509 U.S. at 593-94; United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003).

         Although the Supreme Court provided a general framework for the analysis of expert testimony, no established procedure is required for a Daubert analysis. See United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007) (stating "the test of reliability is flexible and the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination"); see also Cooper, 259 F.3d at 199-200 ("[T]he factors discussed in Daubert [for analyzing expert testimony] were neither definitive nor exhaustive .... [P]articular factors may or may not be pertinent in addressing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony."). Even though Federal Rule 702 "liberalize[d] the introduction of relevant expert evidence," the district court must balance that freedom with the persuasiveness of potentially misleading expert evidence. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). The court notes that the burden of showing the reliability of the opinion rests on the proponent of the opinion, who must show admissibility by a preponderance of the evidence. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).

         II. Underlying Charges Against Defendant

         The defendant was a medical doctor licensed to practice medicine in the State of West Virginia. The defendant had an active Drug Enforcement Administration (DEA) registration number that allowed him to prescribe controlled substances, including Schedule II, III, IV, and V controlled substances for legitimate medical purposes in the usual course of his professional medical practice and within the bounds of medical practice. The defendant previously operated his medical practice, "Neurology & Pain Center, PLLC" in South Charleston, Kanawha County, West Virginia. The defendant was the only practicing physician at Neurology & Pain Center.

         In a Second Superseding Indictment, the defendant is charged with fourteen counts of illegal drug distribution, two counts of distribution causing death, two counts of maintaining a drug involved premises, and four counts of international money laundering. (ECF No. 54) .

         III. Government's Expert Witness, Dr. Gene Kennedy

         Dr. Gene Kennedy received his medical degree from New York Medical College. Dr. Kennedy completed a family medical residency at Wheeling Hospital in West Virginia. Dr. Kennedy has operated a pain management clinic in Saint Simons Island, Georgia for approximately fourteen years. He holds a pain management license, issued by the State of Georgia. Dr. Kennedy treats patients on a referral basis. ...

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