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United States v. Clough

United States District Court, D. New Hampshire

December 11, 2018

United States of America
v.
Christopher Clough

          Charles L. Rombeau, AUSA, Seth R. Aframe, AUSA, Patrick J. Richard, Esq. Robin Gagne, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante, United States 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, see Fed.R.Evid. 800 et seq., 900 et seq., and 1000 et seq., and where appropriate, arguments and grounds not raised by counsel.

         I. Testimony regarding the “opioid crisis”

         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.”[1] Evidence that refers “to an ‘opioid crisis' or the dangers inherent in prescribing opioids” would, he argues, have no relevance and be extremely prejudicial, amplifying jurors' likely prejudices.[2] Thus, he moves to preclude any such evidence or arguments under Federal Rules of Evidence 401 and 403.

         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. See Fed.R.Evid. 401, 402. But the specific risks and dangers of Subsys are relevant for assessing Clough's motive in prescribing the medication, his compliance with the TIRF REMS requirements, and his responses to patient feedback. This motion is thus granted to the extent that it seeks to preclude reference to the “opioid crisis” and discussion of the dangers of opioids unmoored from the specific characteristics of Subsys.

         II. Testimony regarding patient opioid addiction

         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.[3]

         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. See Fed.R.Evid. 104(b)(reliance dependent upon sufficient factual showing), 602, 701, 702. Clough may, if he so wishes, request a limiting instruction to the jury to cure any residual prejudice. See Fed.R.Evid. 105.

         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. See Fed.R.Evid. 401, 402. And such evidence would create a high danger of unfair prejudice. See Fed.R.Evid. 403. Evidence regarding the effects of addiction will therefore generally be precluded. If, however, the evidence shows that Clough was made aware of the effects on a particular patient while still prescribing Subsys to them, by the patient themselves or otherwise, this evidence would be relevant of Clough's motive in continuing to prescribe Subsys. Clough could request a limiting instruction for any such evidence. See Fed.R.Evid. 105.

         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.

         III. Testimony regarding ...


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