United States District Court, W.D. Virginia, Abingdon Division
M. Myatt, Special Assistant United States Attorney, Abingdon,
Virginia, for United States;
Richard D. Kennedy, Kennedy Law Office PLLC, Wise, Virginia,
and Jeremy O'Quinn, O'Quinn Law Office PLLC, Wise,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge.
defendant, a physician and psychiatrist, is charged with
unlawfully distributing, dispensing, and causing to
distribute and dispense, controlled substances without a
legitimate medical purpose and beyond the bounds of medical
practice, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(2). He is also charged with health care fraud and
wire fraud, in violation of 18 U.S.C. §§ 1343 and
1347. It is alleged in the Indictment that the defendant
unlawfully prescribed Schedule IV controlled substances to a
patient with whom he had a sexual relationship. It is also
alleged that the defendant supplied alcohol to the patient
and encouraged her to drink alcohol.
advance of trial, the defendant has filed a Motion in Limine,
seeking to exclude or limit the testimony of a disclosed
government expert witness, John H. Burton, M.D. In a report
by Dr. Burton, disclosed by the government to the defendant,
it is opined by the expert that the defendant acted
“outside the lawful course of professional practice,
” with regard to the patient. Mot. in Limine Ex. A,
Report, ECF No. 35-1. The defendant objects to the use of the
word “lawful” in that opinion on the basis that
it is impermissible for an expert to opine on applicable law.
shown in Dr. Burton's report, his reference to
“lawful” was to the provisions of a Virginia
statute that sets forth the grounds under which the Board of
Medicine may refuse to issue a medical license or suspend or
revoke such a license. Va. Code Ann. § 54.1-2915 (Supp.
2017). In particular, he referenced the grounds included in
that statute relating to sexual relationships with patients,
conduct that causes or is likely to cause harm to a patient,
and conducting the medical practice contrary to standards of
ethics and in a manner as to be a danger to the health and
welfare of a patient. Id. at § 54.1-2915(3),
(12), (13), (19).
expert also opined that the defendant's prescription of
benzodiazepines for the patient was dosed at levels
“moderate to high within the context of her psychiatric
history” and that the concurrent use of alcohol and
benzodiazepines by the patient would produce a “high
risk for excessive sedation and somnolence.” Report 2,
3, ECF No. 35-1.
order to convict a physician of unlawful prescription of
controlled substances, the government must prove beyond a
reasonable doubt that the doctor (1) knew that the drug was a
controlled substance; (2) knowingly dispensed, distributed,
or caused the dispensing or distributing of the controlled
substance; and (3) acted without a legitimate medical purpose
or beyond the bounds of medical practice. United States
v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 2006). While
violation of professional standards of care alone may not be
sufficient to convict, the jury may consider the extent to
which, if at all, any violation of professional standards
committed by the defendant interfered with his proper
treatment of his patient and contributed to an excessive
prescription of controlled substances. See United States
v. Alerre, 430 F.3d 681, 690-91 (4th Cir. 2005). A
physician's conduct may constitute a violation of
professional rules as well as the criminal laws. Thus, the
expert's reference to professional standards found in the
Virginia statute is not impermissible. In its instructions to
the jury, the court will explain the elements of the crimes
charged in the Indictment and the proper consideration of any
evidence of violation of professional standards. While Dr.
Burton's reference to “lawful” or
“unlawful” may be literally correct, since these
standards appear in a “law, ” such reference may
be confusing to the jury in the context of this case, since
this is not an action to revoke the defendant's medical
license. Thus, he should not use those words at trial
concerning the defendant's alleged violation of the
professional standards set forth in section 54.1-2915.
defendant also seeks to preclude expert testimony from Dr.
Burton because he “has never interviewed or even met
[the patient] or Dr. Cervantes or any other physician related
to her care.” Mot. in Limine 2, ECF No. 35. That is not
a proper ground for exclusion of Dr. Burton's opinion
testimony. In his report, he indicates that in arriving at
his opinions, he has reviewed grand jury testimony, audits
and logs of prescriptions for the patient by the defendant,
the Virginia Board of Medicine record of investigation of the
defendant, and clinical records relating to the patient.
Obviously, the expert will be subject to cross examination
concerning the data upon which his opinions rest, but at this
point there is no basis shown to exclude his testimony on the
the Motion in Limine, ECF No. 35, is GRANTED in ...