ROBERT E. WIER, District Judge.
The Court confronts Defendant Akers's and the Government's pending motions in limine.
Akers seeks to exclude two categories of evidence on Rule 401/403 bases: (1) proof relating to the Kentucky Board of Medical Licensure (KBML) investigation of Akers, and, specifically, an Agreed Order into which Akers and the KBML entered; and (2) proof generally "about the effects of prescription drug abuse on the community." DE #34. The United States opposes exclusion of either evidentiary class. DE #40.
The KBML investigated Akers between November 2017 and May 2018, prompted by a third-party worker's compensation administrator's submitted grievance. Akers and the KBML ultimately entered an Agreed Order containing several factual and legal stipulations regarding his controlled substance prescribing conduct, patient management and oversight procedures, and record-keeping practices. See DE #40-1 (Agreed Order). Akers consented to an indefinite practice restriction, and the Agreed Order conditioned any future license reinstatement effort on strict compliance with several listed corrective conditions. See id. at 8-11.
Akers contends that the "[e]vidence relating to claims asserted by the [KBML] [is] not relevant to any issue at trial[.]" DE #34 at 3. Evidence is relevant if it tends to make any fact of consequence to the action's determination more or less probable than it otherwise would be. See Fed. R. Evid. 401. "The standard for relevancy is `extremely liberal.'" United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006) (quoting Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992)); see id. at 738-39 ("[E]ven if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth.") (quoting DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir. 1996) (citation omitted)). Relevant evidence is generally admissible. Fed. R. Evid. 402.
The KBML Agreed Order
Akers's Agreed Order admissions are exceptionally probative of his course of prescribing conduct and patient oversight/management during the relevant period and, consequently, centrally relevant to whether Akers's conduct was within usual professional scope and for legitimate medical purposes. The Agreed Order's stipulated facts further illuminate Akers's record-keeping practices during the at-issue timeframe and are similarly probative of practice legitimacy. See id. at 5-6. Further, Akers's entrance into the Agreed Order and adoption of its content—including consulting doctors' characterizations of his practice and prescribing habits, and Akers's own concession of statutory/regulatory violations—is probative of his knowledge and intent and, thus, directly relevant to the criminal charges in this case. See, e.g., id. at 3 (acknowledging consulting physician's findings that Akers's prescribing "pattern clearly was against the standards of practice, promoting opioid abuse that could lead to opioid overdose/diversion and death[]"); id. at 7 (admitting that he "engaged in conduct which violates the provisions of KRS 311.595(9)," which itself prohibits "dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public[]").
Nor does Rule 403—the "last harbor available" in Akers's exclusionary venture—carry the day. See Griffin v. Condon, 744 F. App'x 925, 931 (6th Cir. 2018). Akers argues that "even if the KBML's claims did have some minimal relevance, the probative value would clearly be outweighed by the potential for unfair prejudice, confusing, and misleading the jury." DE #34 at 4-5. He speculates that, due to the proceedings' differing legal standards and proof burdens, any KBML proof is likely "to distract from the true questions at issue and suggest a decision on an improper basis." Id. at 4. The Court disagrees. Pertinent here, Rule 403 permits the Court to exclude relevant proof only "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury[.]" Fed. R. Evid. 403 (emphasis added). The Rule thus sets a "high bar for exclusion." United States v. Guzman, 571 F. App'x 356, 361 (6th Cir. 2014) (citation omitted). Logically, where the probative value of the evidence is especially great, as here, the party challenging its admission must demonstrate correspondingly heightened risk of unfair prejudice to substantially outweigh that value.
Akers is free to highlight at trial—through cross examination and argument—the lighter, civil standard applicable in the KBML proceeding. And, he may advocate for (and the Court envisions) an appropriate limiting instruction, as necessary. See United States v. Asher, 910 F.3d 854, 862 (6th Cir. 2018) ("[W]hen determining whether evidence is unduly prejudicial, we consider whether a limiting instruction can mitigate the risk of prejudice.") (citing United States v. Ayoub, 498 F.3d 532, 548 (6th Cir. 2007)). The available mitigating measures thus fairly guard against risk of possible jury confusion or misinterpretation of the Agreed Order's . See, e.g., United States v. Sun, 673 F. App'x 729, 732 (9th Cir. 2016) (finding no Rule 403 error, among other things, in admission of medical board records, particularly where a limiting jury instruction was given); United States v. Phung, No. CR-08-131-M, 2009 WL 10672221, at *1 (W.D. Okla. Jan. 22, 2009) (noting admissibility of medical board evidence and directing the parties to propose "a limiting instruction concerning the burden of proof utilized in the" board proceeding as related to the criminal action).
Notably, the Agreed Order is not merely a bare admission of civil negligence or malpractice; nor is it an independent administrative finding in which Akers played no role. Rather, it is an Akers-adopted, fact-based characterization of Defendant's prescribing conduct and practice management during the at-issue period, thus acutely probative of the Government's case theory for the reasons discussed. The jury may consider Akers's (relevant and highly probative) admissions, contained in the Agreed Order, in this context. Critically, "damage to a defendant's case that results from the legitimate probative force of the evidence[]" does not support Rule 403 exclusion; unfair prejudice, under the Rule, refers only to "evidence which tends to suggest a decision on an improper basis." See United States v. Johnson, 581 F.3d 320, 327 (6th Cir. 2009). On balance, the potential for unfair prejudice—adequately addressable by the prophylactic measures discussed—simply does not substantially outweigh the evidentiary value of the Agreed Order. Rule 403 exclusion is here unwarranted. See United States v. LaVictor, 848 F.3d 428, 444 (6th Cir.), cert. denied, 137 S.Ct. 2231 (2017) (noting that "[u]nder Rule 403 . . ., a district court has very broad discretion in" balancing probative value against potential prejudice) (internal quotation marks and citations omitted).
Akers perfunctorily requests categorical exclusion of "any evidence introduced by the government or arguments about the effect of prescription drug abuse on individuals or the community[,]" contending that such "`scourge of the community' arguments" are more prejudicial than probative. DE #34 at 5. The United States opposes exclusion and identifies, generally, a few types of evidence related to prescription drug abuse that may be relevant and admissible in this case. DE #40 at 11-12. The Court agrees that, for example, testimony regarding addiction risks associated with certain controlled substances, or common marks of drug-seeking behavior, may potentially be probative of the Government's theory that Akers ignored obvious red flags and/or failed to manage his prescribing practice per accepted professional standards. Wholesale exclusion of evidence relating to prescription drug abuse effects is thus inappropriate.
Nevertheless, without specific testimony or other evidence before it, the Court cannot make particularized determinations as to ultimate admissibility. The Court will, in context at trial, weigh the probative value of any evidence the Government seeks to admit against the proof's potential prejudice (if any), per the Rules and applicable standards.
The United States seeks to exclude twelve general categories of evidence, largely based on the Federal Rules of Evidence and other foundational evidentiary principles. DE #42. Akers did not specifically oppose any of the DE #42 exclusion requests.
Stamper does, however, partially challenge DE #42 in two respects. First, she opposes the United States's effort to exclude any Defendant hearsay statement.
As the Government recognizes, without context or specific testimony/statements before it, the Court has insufficient information to conclusively resolve the raised hearsay questions. See DE #49 at 3 ("Ultimately, the United States understands that the Court will have to rule on some of these matters at trial with the opportunity to review this potential evidence in context."). Thus, the Court grants in part the DE #42 ¶ 2 exclusion request, to the extent it simply seeks adhesion to the hearsay Rules, but defers ruling on any non-hearsay theories or specific exceptions (such as those Stamper suggests in DE #47, inter alia) and ultimate proof admissibility until trial, where the Court can evaluate particular statements within the holistic evidentiary scheme.
Second, Stamper (briefly) opposes the United States's sought exclusion of prior good acts evidence. See DE #47 at 5; DE #42 at 6-8 (¶ 10). Stamper admits that proof of previous good acts would generally be inadmissible but asserts that "Defendants maintain the right to rebut the accusations against them with respect to the patients listed in the indictment by offering proof of legitimate medical practices for those patients." DE #47 at 5. "Rule 404(b) precludes the use of prior acts evidence to prove a person's character, but it allows such evidence for other purposes, such as proving intent." United States v. Dimora, 750 F.3d 619, 630 (6th Cir. 2014) (internal quotation marks omitted); id. ("For the same reason that prior `bad acts' may not be used to show a predisposition to commit crimes, prior `good acts' generally may not be used to show a predisposition not to commit crimes."). Before allowing prior good acts evidence for an admissible purpose, though, the Court must find that the evidence is probative when used for the purported non-character purpose. Id.
As with the hearsay challenge, on this limited record and without surrounding context, the Court cannot conclusively decide whether the evidence Stamper (or Akers) may seek to introduce is probative of a non-404(b)-barred purpose. Of course, Defendants could not introduce evidence of interactions with patients unrelated to the charged conspiracy, or evidence of patient interactions outside of the alleged conspiracy timeframe, simply to suggest a general lack of criminality. See Dimora, 750 F.3d at 630-31 (precluding as irrelevant "evidence about acts with no connection to" the charged bribery conspiracy); United States v. Qaoud, 777 F.2d 1105, 1111 (6th Cir. 1985) (finding prior good acts evidence irrelevant where it "involved a totally different incident[]" and "demonstrate[d] little or nothing about [the defendant]'s intent on the charges made in this indictment"); id. ("Evidence of non-criminal conduct to negate inference of criminal condition is generally irrelevant.") (quoting United States v. Grimm, 568 F.2d 1136, 1138 (5th Cir. 1978)). However, as the Government concedes, evidence of patient management and prescribing conduct—with respect to the patients underlying the Government's theory of the conspiracy, during the charged timeframe, and in the at-issue non-medical settings—could, potentially, be probative of Defendants' overall course of practice and prescribing intent.
Without precise knowledge of the potential evidence's nature (or its role related to the Government's broader trial theory), the Court cannot adequately assess whether such evidence is probative of a non-character purpose and definitively rule on admissibility. Insofar as the Government argues that Defendants "should generally be precluded from introducing prior good acts evidence unless [they] can articulate an admissible purpose for which the evidence is offered" under the Rules, though, the Court (given the tautological nature of the observation) agrees and grants the DE #42 ¶ 10 exclusion request to that extent. The Court will evaluate whether particular evidence in this category is probative of an admissible purpose in the full evidentiary context at trial.
Lastly, the Government seeks to exclude the testimony of four defense witness groupings. DE #43; see also DE #43-1 (letter disclosing defense witnesses and vaguely summarizing anticipated testimony). Akers opposed exclusion, see DE #46, and the United States replied, see DE #48. The Court discusses each challenged witness set in turn.
Per Akers's disclosure, Drs. Reed and King will testify (in a non-expert capacity) regarding: (1) "the difficulty of Medicaid and or self insured patients getting referred to pain management and long lasting narcotic medicines as opposed to patients with private insurance";
(2) "their patient load as compared to Dr. Akers and . . . the number of referrals they have sent to Dr. Akers and the reasons for the referrals"; (3) recordkeeping requirements at Pikeville Medical Center; and (4) the doctors' purported later review of prescriptions Akers wrote to some patients. DE #43-1 at 1. The United States argues that each category of proposed testimony is improper and inadmissible.
The Government maintains that these matters have no bearing on whether Akers's prescribing conduct (during the indicted window and under the specific circumstances at issue) was within the scope of professional practice and for legitimate medical purpose. Akers's response does not individually address these challenges or explain the relevance of the anticipated Reed/King testimony. The Government's theory of the charged conspiracy is that Akers (with Stamper's assistance) issued narcotics prescriptions to certain patients from his home/other nonmedical locations, without physical or in-person examinations, often in exchange for cash. Even given the low Rule 401 bar, it is difficult to see how the availability of doctors accepting Medicaid in the area would be relevant to these charges, the Government's case theory, or the anticipated trial evidence.
Overall, given Akers's relatively vague description of the expected testimonial subject matter (and the lack of witness-specific clarification in his response brief), it is difficult to discern the precise substance of the proposed Reed/King evidence. Accordingly, to the extent that Reed and/or King ultimately seeks to testify along the Government-described lines regarding the first three noticed testimony categories, and provided that the Government's trial theory is just as it represents here, the Court anticipates excluding these matters as irrelevant. However, the Court declines to entirely preclude Drs. Reed and King from testifying on topics that are, in fact, relevant (and otherwise admissible), depending on the full scope of the Government's evidentiary presentation and developed case theory at trial.
Per Akers, Dr. Arnold and Nurse Foley plan to testify that Akers "would prescribe consistent with sound medical judgment and appropriate emergency room protocol as to controlled substance prescriptions[]" at the Paul B. Hall Medical Center. DE #43-1 at 1-2. At the outset, the Court agrees with the Government that Foley—a nurse, and thus herself unable to prescribe—has insufficient medical qualifications to opine regarding prescription legitimacy. Additionally, with respect to Akers's exercise of sound judgment in the emergency room context, a similar relevance analysis to the one discussed above would likely apply; if, as expected, the Government's case presentation and theory of the conspiracy solely comprise evidence of patient interactions and prescribing conduct in certain specific, non-medical settings during the relevant period, it is difficult to see the relevance of other medical professionals' general impressions of Akers's emergency room practice. Nevertheless, given the lack of specifics regarding the anticipated testimony, the Court defers a definite relevance determination; it will evaluate the potential relevance of any proposed Arnold/Foley testimony in the trial context, should Akers offer such.
That said, to the extent Arnold or Foley seeks to testify regarding Akers's prior prescribing conduct or general reputation as a doctor, they must do so within and obey the confines of Rules 404 and 405. Even if relevant, Rule 404 bars introduction of character evidence (whether in the form of general testimony, testimony regarding a specific trait, or testimony recounting prior conduct) to demonstrate that a person acted in accordance with that character on a specific occasion. See Fed. R. Evid. 404(a)(1) & (b)(1). An exception arises for a criminal defendant, however, when a character trait is pertinent to the offense charged. See Fed. R. Evid. 404(a)(2)(A) & 405. Akers could, thus—if he identifies a character issue pertinent to the case—offer opinion testimony regarding the pertinent character-related matter. See Fed. R. Evid. 405(a) ("When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion.").
It appears that Akers's primary admission theory for such evidence angles for Rule 404(b)'s limited-purpose allowance of prior acts proof. See, e.g., DE #46 at 2 (maintaining that "the evidence at issue is not being used as evidence that [Akers] was of `good[] character,' but to show a pattern of what Dr. Akers['s] medical practice was[]" per Rule 404(b)). Rule 404(b), as discussed, permits prior acts evidence for several non-character purposes, including "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident[,]" among other things. Fed. R. Evid. 404(b)(2).
Here, prior acts evidence could, in some contexts, serve purposes other than demonstration of Akers's character or propensity for legality. Evidence of Akers's interactions and prescribing conduct related to the at-issue patient class (i.e., the group of patients that received prescriptions from Akers under the circumstances alleged in relation to the charged offenses), and within or germane to the indicted window, may be probative of his overall course of care of these patients and his prescribing intent with respect to them—non-character topics. That is, to the extent the Government's theory of the conspiracy rests on a common pattern of illicit prescribing (without meaningful patient exams, for medically unnecessary purposes, absent critical recordkeeping, etc.), Akers may present evidence regarding his care of the relevant patient class in order to present a full picture of the care he provided to this class of patients.
Akers anticipates that Hamilton, a physical therapist, will testify to Akers's patients' abilities to participate in physical therapy as a part of their treatment course, without obvious drug addiction issues, and to the appropriateness of Akers's treatment plans, generally. The Court agrees with the United States that, to the extent Hamilton's proposed testimony (as that of a nonphysician) would offer a medical opinion of Akers's prescribing and treatment conduct, his qualifications are insufficient. Similarly, to the extent that Hamilton would testify (even factually) regarding signs and symptoms of drug abuse, his personal knowledge of such matters is unapparent on the current record.
Per Akers, Jason Milkes worked for him for a time, and would testify to his experience doing so. Again, the Court notes that Milkes's qualifications (as provided) render him unable to opine on medical legitimacy of prescriptions or treatment. Beyond this observation, though, it is entirely unclear what Milkes's anticipated evidentiary role would be. The Court, thus—giving his proposed (ambiguous) testimony little attention, at this point, commensurate with the parties' treatment—defers particularized admissibility ruling until trial, when the Court can concretely evaluate the substance of any Milkes testimony.
The Court mentions, briefly, one final issue. The United States asserts, in multiple instances, that Akers's witnesses—if intended as experts per Evidence Rules 702 and 703 and Criminal Rule 16(b)(1)(C)—were not properly and timely disclosed to the Government. Akers does not address the disclosure issue in his response, nor does he characterize the identified witnesses as experts, for Rules purposes.
For all of the stated reasons, the Court
