JOSEPH N. LAPLANTE, District Judge.
Defendant Christopher Clough has filed three evidentiary motions in limine in advance of his jury trial on one count of conspiring to pay and receive kickbacks in violation of 18 U.S.C. § 371, and seven counts of receiving kickbacks in violation of 42 U.S.C. § 1320a-7b(b). The indictment against Clough alleges that he accepted kickbacks from Insys, a pharmaceutical company, in exchange for prescribing Subsys, a fentanyl spray, to new patients and increasing dosages to existing patients. Clough asks the court to preclude three types of evidence from the upcoming trial. The court addresses each motion in turn.
The court reminds the parties that these rulings are made without prejudice to revisiting particular issues in response to circumstances that might arise during trial. Furthermore, these rulings are limited to grounds argued in the parties' filings and raised at the final pretrial conference. The court reserves the right to assess other factors at trial, such as hearsay, authenticity, and best evidence,
Clough first moves to preclude any evidence or arguments referring to the "opioid crisis." He argues that because of extensive media coverage of opioid addiction and related social issues, jurors are likely to have "strong biases against an individual like Mr. Clough who was in the business of promoting and prescribing addictive opioids."
In response, the prosecution agrees that the "opioid crisis" is not relevant to the trial, but contends that the dangerousness of Subsys, an opioid medication, is directly relevant. It represents that the FDA required prescribers of Subsys to participate in the Transmucosal Immediate Release Fentanyl Risk Evaluation and Mitigation Strategy ("TIRF REMS"), an FDA program setting out certain safety standards in the prescription of covered drugs. The prosecution represents that it will argue that Clough did not fully comply with the TIRF REMS requirements because doing so would have jeopardized some prescriptions of Subsys and the associated kickbacks. Similarly, the prosecution intends to present evidence that Clough ignored evidence of addiction and dangerous side effects in patients, to avoid reducing his number of prescriptions. The prosecution therefore contends that evidence regarding the dangers of Subsys are directly relevant and necessary to explain the drug's inclusion in the TIRF REMS program and the relevance of patient testimony.
As the parties agree, discussion of the "opioid crisis" is not relevant to the issues in the case, and so is not admissible.
In a similar vein, Clough also moves to preclude any testimony by his former patients that they became addicted to their prescribed medication and faced difficulties recovering from addiction. He argues that this testimony "has no probative value to the matter at hand and would only tend to inflame the jury and be overly prejudicial," and so should be precluded under Federal Rules of Evidence 401 and 403.
The court grants this motion in part and denies it in part. The prosecution alleges that Clough's prescriptions and prescribed dosages of Subsys were at least in part motivated by kickbacks rather than medical need. Evidence of addiction to Subsys or fentanyl among Clough's patients is, therefore, relevant to demonstrating whether Clough in fact overprescribed Subsys and whether something other than medical need motivated his prescriptions of Subsys. Assuming a sufficient basis is provided for such evidence, it will be admissible.
Evidence that goes beyond the fact of addiction, such as the personal and social consequences of addiction, is both insufficiently relevant and unduly prejudicial. Generally, testimony regarding the difficulties patients may have faced because of their addiction would not be probative of any issues in the case.
This motion is, accordingly, denied as to the fact that a patient became addicted to Subsys or fentanyl, and as to any related consequences which were communicated to Clough while he was treating them. The motion is granted as to any other consequences of addiction.
Finally, Clough moves to preclude the admission of testimony regarding proceedings before the New Hampshire Board of Medicine ("Board"). The Board considered whether Clough should be permitted to retain his license as a physician's assistant, and he took part in the proceedings. Clough's license was revoked, and the Board found that his testimony was "less than forthcoming."
In response, the prosecution contends that evidence related to the Board proceedings is relevant in three ways. First, it intends to introduce portions of Clough's sworn testimony before the board describing his "opiate prescribing philosophy." This testimony, the prosecution contends, is relevant to Clough's motive and admissible as a party opponent admission.
Statements by Clough to patients regarding the Board's inquiry and Clough's sworn testimony before the Board, where relevant to this case, are potentially admissible as statements by an opposing party.
There is a greater danger of undue prejudice from the Board's characterization of Clough's testimony as "less than forthcoming." This credibility determination is not reputation or opinion evidence, and so is not admissible under Federal Rule of Evidence 608(a). And, under Rule 608(b), extrinsic evidence proving the Board's determination is not admissible as a specific instance of Clough's conduct to attach his character for truthfulness. The government argues, also under Rule 608(b), that the determination may be raised on cross-examination.
Whether a third-party credibility determination may be raised via questioning on cross-examination under Rule 608(b) is an unsettled question.
The probative value of the Board's evaluation of Clough as "less than forthcoming" appears, at this time, to be outweighed by potential prejudice.
This motion is therefore granted-in-part and denied-inpart. Admission of the Board's credibility determination, even on cross-examination, is precluded absent Clough putting the truthfulness of his testimony before the board at issue. But his testimony and any relevant statements made to patients about the Board's inquiry are not precluded.
Clough's motions in limine are resolved as follows: