From a doctrinal standpoint, courts depend on a well-established precept: consultants are permitted to testify to help the fact-finder, to not persuade them with rhetorical flourish. Federal Rule of Evidence 702 permits consultants to supply opinions grounded of their experience, however that doesn’t open the floodgates to courtroom TED Talks. The second an knowledgeable begins editorializing—injecting value-laden commentary, providing thinly veiled advocacy, or styling their testimony like an op-ed—they’ve crossed the road from useful interpretation to persuasive advocacy. That’s what plaintiff’s knowledgeable, Dr. Fugh-Berman, a frequent flier in pharmaceutical litigation, tried to do in in United States es rel. Siegel v. Novo Nordisk, Inc., 2025 U.S. Dist. LEXIS 135854 (W.D. Wash. Jul. 16, 2025). But the courtroom nudged her, not all that lightly, again into her lane — behind the witness stand, not on the bench, at counsel desk, or within the jury field.
Dr. Fugh-Berman was proffered to opine that defendant’s advertising and marketing and promotion of its drug used within the therapy of hemophilia brought about physicians to make use of extra of the drug and to make use of it for off-label functions. Experts are presupposed to play a job in serving to the jury perceive info past widespread information. So, calling an knowledgeable to testify that advertising and marketing is designed to extend gross sales appears slightly like calling a marine biologist to verify that fish reside in water. No one within the jury field wants that defined. But we’ll permit, as a result of the courtroom did, that maybe Dr. Fugh-Berman’s 35 years of researching pharmaceutical advertising and marketing will supply the jury one thing past widespread sense. However, there’s a line, particularly with a touch related knowledgeable — consultants might illuminate, they need to not hold forth.
That is why the courtroom allowed testimony about what can affect a doctor’s prescribing conduct usually, however precluded testimony that defendant’s “promotional strategies” brought about the plaintiff’s doctor to prescribe the drug to plaintiff. Not solely had the knowledgeable not reviewed any information particular to plaintiff or the prescribing doctor, the final word causation query is a authorized conclusion for the jury. Id. at *5-6.
While not the entire plaintiff’s knowledgeable’s opinions are spelled out within the choice, the courtroom repeatedly made clear that she might “summarize” the promotional advantages provided to plaintiff and his doctor and supply her opinion that they’re the kind of advantages that will affect doctor prescribing conduct, however she couldn’t supply opinions that crossed the road into argument or authorized conclusions – corresponding to these items/providers influenced the prescriptions written or such promotion elevated off-label use. Id. at *6. Those are authorized conclusions cloaked in a lab coat.
Nor might plaintiff’s knowledgeable supply her “speculative editorial” factual narrative relating to defendant’s advertising and marketing practices:
[N]o knowledgeable shall testify in a type of an advocate editorializing, or current a conclusory narrative akin to legal professional argument, somewhat than as an knowledgeable witness.”
Id. Otherwise, the courtroom division of labor will get slightly blurry. Lawyers argue. Judges instruct. Juries determine. Experts inform. Once consultants begin slipping into the function of advocates, not solely can juries turn out to be confused about who’s doing what, authorized conclusions dressed up as “skilled opinions,” step on the toes of each the decide and the jury.
The courtroom additionally excluded the knowledgeable’s opinions primarily based on “discourse evaluation” as a result of it was not talked about in any respect in her report. Id. at *4-5. And discovered she was not certified to opine on whether or not a excessive dosage use of the product was “unproven.” Id. at *6.
We nonetheless take concern with whether or not her “knowledgeable” testimony will help the jury in understanding proof that’s past their lay information, however a minimum of the courtroom is making her pull up wanting editorializing or providing authorized conclusions. Afterall, editorializing is about serving to the jury perceive “why” sure proof issues, and that’s our job. Let the legal professionals argue, let the consultants inform, and let the jury determine—with out the working commentary.