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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Notices
Following the testimony of Ms.
Mincys background, Respondents counsel moved on to the facts of this matter. Throughout her testimony, Ms.
Mincy appeared to encounter great difficulty in remembering details of the June 6, 2017 on-site inspection. While Ms. Mincy appeared to remember some details, her presentation and delivery of those details appeared sometimes confused and disoriented. Throughout the direct examination, I noticed that Respondents counsel had trouble eliciting answers from Ms. Mincy about the June 6, 2017 on-site inspection.49
Further, Respondents counsel made a number of statements on the record that demonstrated his difficulty in eliciting testimony from Ms. Mincy, leading to a number of objections by Government counsel for leading the witness.50 While understandable that a lay witness may have some difficulties due to being nervous or anxious about her time on the witness stand, Ms. Mincys inability to answer questions posed by her own attorney suggest issues with Ms.
Mincys ability to reliably recall events one would expect to be otherwise fairly memorable. Her presentation in Orlando clearly diminishes her reliability as a witness, especially as relates to her Orlando testimony.
During the second portion of the hearing in Arlington, Virginia, Ms.
Mincy appeared to be more relaxed on the stand, which appeared to increase her ability to recall and to reliably convey her perception of the relevant events.
Overall, I find that the reliability of her testimony was significantly diminished by her inability to recall details about both her own personal history and those surrounding the events of the on-site inspections at Pharmacy 4 Less.51
49 ADMIN. LAW JUDGE DOWD: And I know youre having some difficulty with Ms. Mincy, but try not to lead, Mr. Indest. Tr. 588.
50 MR. MANN: She needs to answer his questions and not listen to him repeat the answers to her.
MR. INDEST: Your Honor, shes having a very difficult time answering these questions.
ADMIN. LAW JUDGE DOWD: It is what it is. But Im going to sustain the objection as to leading.
MR. INDEST: And, Your Honor, with that understanding, a witness that is hard to answer the questions should be given some, the counsel should be given some leeway to at least get the basic information.
ADMIN. LAW JUDGE DOWD: I think Ive given you leeway, Mr. Indest.
MR. INDEST: Okay, thank you.
ADMIN. LAW JUDGE DOWD: We have to have the testimony come from the witness.
MR. INDEST: Okay, well try. Tr. 59596.
51 In its Posthearing Brief, the Government argues that Ms. Mincys false testimony should not be credited. Govt Posthearing Brief at 3336. The
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The parties only presented one fact witness each as to the events surrounding the on-site inspections at Pharmacy 4 Less. It will therefore be necessary for me to compare and weigh the testimony of DI1 and Ms. Mincy regarding the factual circumstances surrounding the on-site inspections of Pharmacy 4 Less and the subsequent investigation.52 Physical evidence is more corroborative of DI1s testimony than that of Ms. Mincys. When their testimony is in conflict, I find that it is proper to give greater weight to the testimony of DI1 over that of Ms. Mincy.
Motivation to Color Testimony DI1, as a public servant, typically has no personal stake in the outcome of the instant inspection or in the revocation of the Respondents Registration. The instant investigation was initiated at random. I noted no animus on his part as to the Respondent, its owner, or employees. Although he may be viewed as being part of the prosecution team, I
saw no indication from his testimony that any partiality interfered with his reliable testimony.
On the other hand, Ms. Mincy appeared to be very defensive of Pharmacy 4 Less and the pharmacys practices. As one of the two pharmacists on staff at the pharmacy, the investigation directly implicates her practices and her employment at the pharmacy. I suspect that she would be more likely to color her testimony than would DI1.
Ms. Mincy made statements during her testimony that make her motivation to color her testimony more likely.
When confronted about the testimony of DI1, recalling statements made by Ms.
Mincy during the June 6, 2017 on-site inspection, Ms. Mincy seemed to Government argues that she lied about checking EFORCSE every time before she filled a prescription. I will not go to the extreme the Government suggests, especially in light of Ms.
Mincys demonstrated memory deficits. However, I do find that when comparing the testimony to GX
38, Ms. Mincy overstated her use of EFORCSE and that her credibility on the subject is diminished.
Remainder of footnote omitted for brevity.
52 As to the lack of corroboration of portions of Ms. Mincys testimony, the owner of Pharmacy 4
Less and the only other pharmacist at the pharmacy, Mr. Richard Sprys, had the ability to corroborate crucial details about the pharmacy Ms.
Mincys testimony about the pharmacys operations, details regarding the June 6, 2017 phone call, and the June 21, 2017 on-site inspection. However, neither the Government nor the Respondent decided to call Mr. Sprys as a witness during the hearing. This Tribunal will not question either parties trial strategy or determination of which witnesses to call, and notes that neither party has suggested any inference should be drawn regarding the failure to present evidence through Mr. Sprys.
As such, we are without the benefit of Mr. Sprys testimony and are left only with the testimony evidence of DI1 and Ms. Mincy.

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personalize the conflict. Ms. Mincy claimed that DI1 would have been lying, or that he was confused. Tr.
82325. Ms. Mincy said that DI1 was like a kid in a candy store. Id. at 824
25. She said that the longer he was there and the more he got access to, the wilder and crazier he got. Id. at 825.
Ms. Mincy described her interactions with DI1 as tormenting and almost, like, harassment of the Respondent. Id.
at 82526. While Ms. Mincy may have been testifying as to how she felt during the surprise on-site inspection with DI1, this colorful language, along with her description and characterization of the inspection, makes her testimony suspect as a possible attempt to improperly discredit DI1s testimony and his characterization of the on-site inspection.53 In combination with the previous discussion of Ms. Mincys ability to recall events, I find that Ms.
Mincy has more motivation to color her testimony than DI1.
Credibility Analysis of Expert Witnesses and Opinions The relevant standard of care may be established by an expert witness through his experience in the field, and through his reliance upon and application of state and federal professional standards. Omitted for brevity.
Dr. Thomas Hamilton, Pharm.D.
Dr. Hamilton testified as the Governments expert witness in this matter. Dr. Hamilton was offered and was qualified as an expert in the practice of pharmacy in Florida. Tr. 174.
Dr. Hamilton has worked as a pharmacist for 18 years. Id. at 16769.
His experience includes time at a small pharmacy before moving to work fulltime as a pharmacist for Publix, where he has served in a variety of roles, including as a Pharmacist, the Assistant Manager of the Pharmacy, and as the Pharmacy Supervisor. He has served as a fixer or temporary Pharmacy Manager in order to clean up pharmacies. Id. at 169. In his role as Pharmacy Supervisor, he was in charge of overseeing up to 60 pharmacies, and his duties included the hiring and firing of employees, and overseeing daily operations. Id. at 170. Additionally, Dr.
Hamilton evaluated stand-alone, independent pharmacies for purchase 53 In its Posthearing Brief, the Government asserts that Ms. Mincys testimony should be discredited when it is contradicted by DI1. Govt Posthearing Brief at 37. While I cannot reach the Governments assertion that Ms. Mincy is lying, I have already found that greater weight will be given to DI1s testimony whenever there is conflict between DI1
and Ms. Mincys testimony.

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