United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
the Court is Defendant James Ferris' Motion in Limine Re:
Administrative Proceedings [Doc. No. 72]. The United States
has responded [Doc. No. 74]. The matter is fully briefed and
Ferris is charged in a 103-count Indictment with distributing
controlled substances outside the usual course of
professional medical practice, in violation of 21 U.S.C.
§ 841(a)(1), and Medicare fraud, in violation of 18
U.S.C. § 1347. [Doc. No. 1]. Dr. Ferris, a licensed
physician, was a salaried employee of Physicians at Home
(“PAH”), a home health care company located in
Wellston, Oklahoma. PAH was owned and operated by Sherry
Isbell. Dr. Ferris also practiced medicine at
Mid-Oklahoma Medical Access Clinic (“MOMAC”) in
Wellston. MOMAC was also owned and operated by Isbell.
Defendant Katherine Dossey, a licensed pharmacist, owned and
operated Wellston Clinic Pharmacy, which was in the same
building as MOMAC. Dossey owned the building that housed the
Wellston Clinic Pharmacy and MOMAC.
summarize, the Indictment alleges that in early 2015, Isbell
and Dossey agreed that Wellston Clinic Pharmacy would fill
prescriptions for Schedule II controlled substances and
deliver them to the homes of PAH patients. By September 1,
2015, and continuing through December 9, 2015, Isbell,
Dossey, and Dr. Ferris agreed that Isbell would give Dossey
access to the electronic medical records of PAH patients.
Dossey would then use the records to determine what Schedule
II drugs Dr. Ferris had previously prescribed to the
Ferris allegedly signed stacks of blank prescription pads and
gave them to Dossey. A few days before a prescription was due
to run out, Dossey would write in the prescription on the
blank prescription page that Dr. Ferris had pre-signed.
Dossey would then fill the prescription and have it delivered
to the patient's home. Dossey, in turn, submitted the
claims to Medicare for reimbursement.
4, 2017, the Oklahoma Medical Board (“Medical
Board”) conducted a disciplinary hearing of Dr. Ferris
based on the same allegations set forth in the Indictment.
Dr. Ferris testified under oath at the hearing. The Medical
Board suspended Dr. Ferris' medical license for 30 days,
ordered him to pay a $5, 000 fine, and required him to attend
two continuing education classes.
Ferris seeks to exclude at trial evidence of the Medical
Board proceedings, including the outcome, and his testimony
at the Medical Board hearing. Dr. Ferris contends that such
evidence is irrelevant, confusing, and is substantially more
prejudicial than probative. The United States contends that
such evidence is relevant, that its probative value
substantially outweighs any risk of misleading the jury, and
that any confusion could be cured with a limiting
the Federal Rules of Evidence do not explicitly authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to
mange the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n. 4 (1984). As such,
“[t]he purpose of a motion in limine is to aid the
trial process by enabling the Court ‘to rule in advance
of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.'”
Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d
1201, 1208 (D. Kan. 2008) (quoting Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996)).
these streamlining benefits, “a court is almost always
better situated during the actual trial to assess the value
and utility of evidence.” Wilkins v. Kmart
Corp., 487 F.Supp.2d 1216, 1218 (D. Kan. 2007).
“Consequently, a court should reserve its rulings for
those instances when the evidence plainly is
‘inadmissible on all potential grounds' …
and it should typically defer rulings on relevancy and unfair
prejudice objections until trial when the factual context is
developed[.]” Id. (citations omitted); see
also Hawthorne Partners v. AT&T Tech., Inc., 831
F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence
meets this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper
context.”). Further, “the district court may
change its ruling at any time for whatever reason it deems
appropriate.” Jones v. Stotts, 59 F.3d 143,
146 (10th Cir. 1995); see also Luce, 469
U.S. at 41 (“The ruling is subject to change when the
case unfolds …. Indeed even if nothing unexpected
happens at trial, the district judge is free, in the exercise
of sound judicial discretion, to alter a previous in limine
Fed.R.Evid. 401, evidence is relevant if “it has any
tendency to make a fact more or less probable than it would
be without the evidence and the fact is of consequence in
determining the action.” “Irrelevant evidence is
not admissible.” Fed.R.Evid. 402. A matter of
consequence in this case is whether Dr. Ferris prescribed
Schedule II controlled substances outside the usual course of
medical practice or without a legitimate medical purpose.
See United States v. Nelson, 383 F.3d 1227,
1231-1232 (10th Cir. 2004) (“A practitioner
has unlawfully distributed a controlled substance if she
prescribes the substance either outside the usual course of
medical practice or without a legitimate medical
purpose.”); see also 21 C.F.R. §
1306.04(a); United States v. Moore, 423 U.S. 122,
124 (1975) (“[R]egistered physicians can be prosecuted
under § 841 when their activities fall outside the usual
course of professional practice.”). Thus, a finding by
the Medical Board, assuming such a finding was made, that Dr.
Ferris prescribed scheduled drugs outside the usual course of
professional practice would be relevant to the charges under
21 U.S.C. § 841(a)(1). See, e.g., United States v.
Phung, 384 Fed.Appx. 787, 792 (10th Cir. June
29, 2010) (unpublished) (the medical review board's finding
that the defendant “dispensed narcotic drugs without
medical need is obviously relevant to the charges under 21
U.S.C. § 841(a)(1)”).
relevant evidence is not necessarily admissible. Under
Fed.R.Evid. 403, relevant evidence may be excluded “if
its probative value is substantially outweighed by a danger
of” unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. “Evidence is not unfairly
prejudicial simply because it is damaging to an
opponent's case.” United States v. Curtis,
344 F.3d 1057, 1067 (10th Cir. 2003). To be
unfairly prejudicial, the evidence must have “an undue