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United States v. Hofstetter

United States District Court, E.D. Tennessee

December 9, 2019




         The Court has before it the government's motion [Doc. 774] to introduce an email between defendant Sylvia Hofstetter and co-defendant Chris Tipton and evidence of uncharged deaths of patients of the Tennessee clinics. Defendants Hofstetter, Newman, and Clemons responded [Doc. 788], and the parties have otherwise addressed these and related issues in several other briefs [Docs. 577, 587, 615, 625, 632, 646, 648]. The Court likewise has previously addressed the issue of the admissibility of uncharged deaths in its October 11, 2019 order [Doc. 672].[1] The Court will first address the admissibility of the email before turning to the admissibility of evidence of uncharged deaths of patients of the Tennessee clinics. For the reasons discussed herein, the government's motion [Doc. 774] is DENIED in part and GRANTED in part.

         I. Email Between Defendants Sylvia Hofstetter and Chris Tipton

         The government seeks to introduce an email between defendant Hofstetter and Chris Tipton, a government witness and co-defendant in this case [Doc. 774 p. 9-12]. The email, which is marked Government's Exhibit 2044, is a chain of communications between defendants Hofstetter and Tipton regarding particularly heinous crimes that were committed by an active patient of defendants' clinic on Gallaher View Road and the decision to subsequently discharge that patient.

         The government argues that the email is admissible under Rule 403, analogizing this situation to United States v. Lang, 717 Fed.Appx. 523, 539 (6th Cir. 2017) (admitting news articles found in defendant Lang's desk that discussed the federal indictment against a pain clinic involving several patients of Lang's and a co-defendant's clinic because the evidence was not unfairly prejudicial and suggested-on a wholly proper basis-that the defendant “knew her clinic was a pill mill, but that she continued operating it anyway”), and United States v. Schwartz, 702 Fed.Appx. 748, 756 (10th Cir. 2017) (admitting evidence of patient deaths to show that the defendant “knew that the clinic's patients were misusing their prescriptions, yet the practice continued to prescribe opioids in irresponsible ways.”). The government argues that the email demonstrates defendant Hofstetter's “awareness of criminality on the part of patients at the clinic” and the fact that she had “power over whether or not patients were able to stay in the clinic.”

         Defendants counter that the email is inadmissible under Rule 403 of the Federal Rules of Evidence as unfairly prejudicial and contend that Lang and Schwartz are distinguishable [Doc. 788 p. 4-5].

         As an initial matter, the Court recalls that on October 30, 2019, before bringing the jury in for continued direct examination of Tipton, the government sought to introduce this email into evidence. The government presented the same or similar arguments as it presents in it written motion. Specifically, the government argued that the evidence is highly probative of defendant Hofstetter's mens rea, namely her knowledge that patients were drug-seeking and not legitimate pain patients. Defendants also presented the same or similar arguments as they present in their written response to the government's motion. After hearing argument from the parties, the Court found that the evidence cleared the low bar for relevance but was inadmissible under Rule 403.

         Now, in the instant motion, the government again seeks to introduce this email into evidence. Having already ruled on this request, the Court interprets this portion of the government's motion as a motion to reconsider its prior ruling. The Rules of Federal Criminal Procedure do not provide for such motions. Thus, courts adjudicating motions to reconsider in criminal cases typically evaluate such motions under the same standards applicable to a civil motion to reconsider. United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010) (citing United States v. Healy, 376 U.S. 75 (1964)).

         Motions to reconsider an interlocutory ruling are governed by Rule 54(b) of the Federal Rules of Civil Procedure. The Sixth Circuit has held that district courts have the authority to afford relief pursuant to Rule 54(b) “as justice requires.” Rodriguez v. Tenn. Laborers Health & Welfare Fund., 89 Fed.Appx. 949, 959 (6th Cir. 2004); see also McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018) (“Rule 54(b) . . . permits the district court to reconsider and reverse its decision for any reason it deems sufficient.” (citation omitted)). Traditionally, relief from an interlocutory ruling is appropriate “when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Rodriguez, 89 Fed.Appx. at 959 (citation omitted). A motion to reconsider under Rule 54(b) “may not ‘serve as a vehicle to identify facts or raise legal arguments which could have been, but were not, raised or adduced during the pendency of the motion of which reconsideration was sought.'” Madden v. City of Chattanooga, No. 1:08-cv-160, 2010 WL 670107, at * 2 (E.D. Tenn. Feb. 19, 2010) (quoting Grozdanich v. Leisure Hills Health Ctr., Inc., 48 F.Supp.2d 885, 888 (D. Minn. 1999)).

         Here, the Court is not persuaded that its prior ruling on the admissibility of this email was in error, and the government has not presented new evidence or otherwise established that circumstances exist mandating relief under Rule 54(b). The Court continues to be of the opinion that this evidence is relevant but presents a significant risk of unfair prejudice and confusing the issues, particularly as it relates to the provider defendants, who the government acknowledges neither prescribed this patient or worked at the clinic where he was a patient. While the government did not argue some of the specific analogies it makes in its written motion when the Court first heard argument on this issue on October 30, 2019, the thrust of the government's argument remains the same: the evidence demonstrates defendant Hofstetter's mens rea. In particular, the government again argues that the evidence indicates knowledge of and, given that “her only response was [to] just discharge him, ” her indifference to patients' drug-seeking behavior.[2] In its motion, therefore, the government does not present new evidence or identify a change in the law necessitating reconsideration. It also raises no arguments that were not already addressed or could not have been raised previously, and the Court again concludes that Rule 403 considerations should preclude admission of the evidence in question. The government's motion will therefore be DENIED in part: the government may not, pursuant to the Court's original, oral ruling, introduce this email (Government's Exhibit 2044) into evidence.

         II. Uncharged Deaths of Patients of the Tennessee Clinics

         The government next seeks to introduce evidence of uncharged deaths of patients of the Tennessee clinics, [3] which it defines as “[a]ny death that occurred during the conspiracy (in or about 2010 to on or about March 10, 2015)” [Doc. 774 p. 1]. The government provides examples of what forms this evidence takes. The government states that the evidence includes various notations on patient files indicating that a patient was deceased, as well as evidence, presumably from those patient files, that “some of these deceased patients were previously seen by the provider defendants” [Doc. 774 p. 9]. The government states that the evidence also includes: (1) specific patients' responses to drug abuse screening tools (“DAST”) that suggested potential addiction issues or that indicated the patient may be drug-seeking; (2) patient charts indicating that those same patients were seen by a specific provider defendant, who, in some cases, apparently reviewed the patient's DAST and still prescribed the patient high-dose opioids; and (3) evidence that the patient died shortly thereafter. And lastly, the evidence includes patient forms which the government argues must have been “pre-filled out, ” meaning forms for specific patients' appointments that are filled out even though the patient never went to the appointment for which the form is filled out as evidenced by the fact that the patient died before the appointment.

         The government cites its overarching intended purpose in introducing this evidence: to rebut defendants' defense of good faith (i.e., that the defendants did not know that the patients were drug-seeking and thought they were legitimate pain patients). In particular, the government argues that notations on patient charts indicating a particular patient was deceased suggest that the defendants “knew or should have known that their patients were dying” [Doc. 774 p. 9]. Notice that clinic patients were abusing their prescriptions, overdosing, and dying, the government argues, contradicts defendants' assertions that they were unaware the patients were drug-seeking or that the clinics were pill mills, which rebuts their defense of good faith [Id. at 8 (analogizing this use of uncharged-deaths evidence to that offered in Schwartz)]. Evidence suggesting defendants knew patients were dying in combination with evidence that the practices of the clinic-and more specifically, the prescribing practices of the defendants-did not change, the government argues, shows that the providers were not actually treating patients. The government asserts that this too contradict defendants' assertions that they were not overprescribing opioids to drug-seeking patients but were treating legitimate pain patients. The “pre-filled out” patient forms, the government argues, also undermines the defendants' defense of good faith. The government also notes another intended purpose in introducing this evidence: to explain why various patients have not been presented as witnesses.

         Defendants assert that by virtue of questioning the government's witnesses they have not raised a defense of good faith and argue that the government's intended use of evidence of uncharged deaths of patients of the Tennessee clinics is distinct from that affirmed in United States v. Lang, 717 Fed.Appx. 523 (6th Cir. 2006) [Doc. 788 p. 2-3]. Defendants also argue, for reasons set forth in their response to the instant motion and other related briefs, that evidence of uncharged deaths of patients of the Tennessee clinics is inadmissible under Rule 403 of the Federal Rules of Evidence. The probative value of such evidence, they argue, is substantially outweighed by the danger of ...

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