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United States v. Blackmon

United States District Court, N.D. Oklahoma

November 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARNELL E. BLACKMON, M.D., Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         I. Background

         Plaintiff, the United States of America, on behalf of the Drug Enforcement Agency (DEA), brought this suit against defendant, Darnell E. Blackmon, M.D., under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (the Act). Dr. Blackmon is a Board-certified orthopedic surgeon, who served as the Medical Director for the Enhanced Skin & Body Medical Spa (the Spa) beginning June 9, 2011. In its Complaint, the government alleged that, while he was the Spa's Medical Director, Dr. Blackmon committed multiple violations of the Act and related regulations. (See Complaint, Doc. 2).

         Dr. Blackmon has admitted several of the violations, as set forth in Stipulations (Doc. 47) filed with the Court. Among other stipulations, the parties agreed that the only issues remaining were the amounts of civil monetary penalties to be levied against Dr. Blackmon for the stipulated violations, and they agreed that the Court should make those determinations in a non-jury trial. (See id.). Thus, on October 26, 2017, the Court conducted a non-jury trial regarding the appropriate monetary penalties. At trial, the Court heard the testimony of four witnesses, who were called by the plaintiff: Kimberly Daniels, a Group Supervisor with the DEA; Robbin Roberts, Investigator with the Oklahoma Medical Board; Dr. Blackmon, the defendant; and Elisa Kaye Sanders, RN, who was an owner of the Spa. The Court admitted Plaintiff's Exhibits (PX) 1 through 21 and Defendant's Exhibits (DX) 1 through 3. Upon consideration of the Stipulations (Doc. 47), all testimony, exhibits, trial briefs (Doc. 53, 54), and the parties' proposed findings of fact and conclusions of law (Doc. 48, 49), the Court enters the following findings and conclusions.[1]

         II. Findings of Fact

         Dr. Blackmon has stipulated liability to Counts I, II, III, IV, VI, VII, and VIII of the Complaint, and the Court incorporates those Stipulations (Doc. 47) herein as findings of fact. Each Count is described below, along with the maximum statutory penalty, and the amounts the government requests that the Court impose.

         Count I: Dr. Blackmon failed to record at the Spa an initial inventory for phentermine and testosterone, in violation of 21 U.S.C. §§ 827(a)(1), 842(a)(5) and 21 C.F.R. § 1304.11(b), which subjects him to a maximum monetary penalty of not more than $10, 000 pursuant to 21 U.S.C. § 842(c)(1)(B). The government requests that the Court order that Dr. Blackmon pay a civil penalty of $1, 000 on this Count.

         Count II: Dr. Blackmon failed to maintain at the Spa a biennial inventory for testosterone and phentermine, in violation of 21 U.S.C. §§ 827(a)(1), 842(a)(5) and 21 C.F.R. § 1304.11(c), which subjects him to a maximum monetary penalty of not more than $10, 000 pursuant to 21 U.S.C. § 842(c)(1)(B). The government requests that the Court impose a $1, 000 penalty on this Count.

         Count III: Dr. Blackmon failed to maintain at the Spa a dispensing log for testosterone and phentermine, in violation of 21 U.S.C. §§ 827(a)(3), 842(a)(5) and 21 C.F.R. § 1304.03(b), subjecting him to a maximum monetary penalty of not more than $10, 000, pursuant to 21 U.S.C. § 842(c)(1)(B). The government requests that the Court impose a $1, 000 penalty on this Count.

         Count IV: On 55 occasions, the dates testosterone and phentermine were received at the Spa were not recorded, subjecting Dr. Blackmon to a maximum monetary penalty of not more than $10, 000 for each of the 55 occasions, pursuant to 21 U.S.C. § 842(a)(5), (c)(1)(B). The government requests that the Court order that Dr. Blackmon pay a penalty of $1, 000 for each of the 55 violations under this Count, for a total of $55, 000.

         Count V: The parties stipulate that Count V shall be dismissed with prejudice.

         Count VI: On 368 occasions, in violation of 21 U.S.C. §§ 829(b) and 842(a)(1) and 21 C.F.R. §§ 1306.04 and 1306.05, Dr. Blackmon permitted Pam Kirkendall and Elisa Kaye Sanders, both of whom were RNs, to examine patients, determine the type and course of treatment, prescribe and/or administer testosterone and/or phentermine, in Dr. Blackmon's absence and without the presence of another licensed physician, outside the course of his professional practice and without him establishing a doctor-patient relationship. He is subject to a maximum monetary penalty of not more than $25, 000 for each of the 368 violations, for a total maximum of $9, 200, 000. The government requests that the Court impose a penalty of $1, 000 for each of the 368 violations, for a total of $368, 000.

         Count VII: In violation of 21 U.S.C. §§ 829(b) and 842(a)(1) and 21 C.F.R. §§ 1306.04 and 1306.05(f), Dr. Blackmon prescribed and was administered testosterone on three occasions, without a prescription from another DEA-registered physician with whom he had established a doctor-patient relationship. Each of those violations subjects him to a maximum monetary penalty of not more than $25, 000. The government requests that the Court impose a penalty amounting to $1, 000 per violation, for a total of $3, 000, under this Count.

         Count VIII: Dr. Blackmon failed to obtain a separate DEA registration for dispensing activities at the Spa, in violation of 21 U.S.C. §§ 822(e)(1) and 842(a)(2) and 21 C.F.R. § 1301.12(a), subjecting him to a maximum monetary penalty of $25, 000. The government requests the imposition of a civil penalty of $12, 500 for Dr. ...


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