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United States v. Ferris

United States District Court, W.D. Oklahoma

August 30, 2019




         Before 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 at issue.


         Dr. 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.[1] 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.

         To 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 patients.

         Dr. 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.

         On May 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.

         Dr. 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 instruction.


         “Although 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)).

         Despite 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 ruling.”).


         Under 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).[2] See, e.g., United States v. Phung, 384 Fed.Appx. 787, 792 (10th Cir. June 29, 2010) (unpublished)[3] (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)”).

         However, 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 ...

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