United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE.
Newman has moved to exclude from evidence letters issued by
the Tennessee Department of Health to the “Top 50
Opioid Prescribers” in the state [Docs. 795, 806], and
defendants Clemons, Womack, and Hofstetter orally joined the
motion. The government, which seeks to introduce top-50
letters addressed to defendants Newman, Clemons, and Womack,
opposed the motion orally and filed a written motion asking
the Court to admit the letters [Doc. 807]. For the reasons
discussed herein, the Court will GRANT
defendants' motion and DENY the
make two principal arguments. First, defendant Newman
contends in the motion that the letters the government
apparently intends to introduce through witness Tracy Bacchus
are irrelevant under Federal Rule of Evidence 401, and even
if they were relevant, they are inadmissible under Rule 403
because the evidence is prejudicial, will confuse the issues,
and mislead the jury [Doc. 795 (citing Fed.R.Evid. 401,
403)]. Defendant Clemons supported this argument in
discussion of the motion in open court on December 12, 2019,
arguing that the letters are irrelevant to the ultimate issue
here: whether the nurse practitioner defendants issued
prescriptions for a legitimate medical purpose in the course
of professional practice; rather, fifty (50) people will
receive top-50 letters, regardless of their actual
prescribing practices. Trial Tr. for Dec. 12, 2019, at 256-57
[hereinafter Trial Tr.]. Moreover, defendant Clemons argued,
seeming to make a Rule 404(b) argument, that the letters
would confuse the issue by doing nothing more than casting
the prescribers in a negative light. Id. at 257-58.
Defendant Hofstetter contended that the letters would be
prejudicial, in part, because they covered a period during
which all three provider defendants worked at other clinics,
id. at 258, and defendant Newman noted that that
data could not be broken down by month or by employer, so
defendants could not elicit testimony regarding each
defendant's employment status at the time she issued the
prescriptions. Id. at 253. Defendant Clemons stated
that defendants did not receive the letters until after their
employment at the clinics in this case ended, so they could
not have used the information contained in the letters to
affect their practices during the timeframe of the alleged
conspiracy. Id. at 269.
defendant Newman argues that if the Court allows the
government to introduce records from the Tennessee Department
of Health (“DOH”), then defendants ought in
fairness to be able to offer into evidence other documents
from the DOH [Docs. 795, 806], documents for which the
magistrate judge denied a subpoena duces tecum [Doc. 531 p.
11]. Defendant asks for more time to present arguments that
these latter documents are relevant and should be produced
government argues the letters are highly relevant and not
unfairly prejudicial. Responding to defendant Clemons's
relevancy argument in open court, the government contended
that the letters are relevant because they go to whether the
prescriptions issued by the providers were for a legitimate
medical purpose and outside the scope of professional
conduct. Trial Tr. at 261. The letters provide information
regarding the quantity of prescriptions and the quantity of
specific drugs prescribed, both of which go to the issue of
patient volume. Id. at 272. According to the
government, the letters are probative of the question of
whether the providers were able to provide individualized
care, or whether they were seeing so many patients and
prescribing so many pills that they were not doing so and
were not prescribing drugs for a legitimate medical purpose.
Id. While the government agreed that the letters are
harmful and prejudicial, it contended that the letters are
highly probative, and it argued that the jury could use its
common sense to evaluate the weight to give the letters.
Id. at 262. The government also noted that
defendants have had the Tennessee Prescription Monitoring
Program data for the relevant calendar year for each provider
and could use that data to advance arguments about the weight
the jury should give the letters. Id. at 261-62.
motion to admit the letters, the government argues that the
letters are admissible as public records under Federal Rule
of Evidence 803(8)'s exception to the general bar against
hearsay [Doc. 807]. The government cites case law indicating
this Court, as well as other courts, have admitted alert
letters and public reports similar to the letters at issue in
this case under Rule 803(8) [Id.].
of whether the letters are admissible under Rule 803(8), they
are only admissible under Federal Rule of Evidence 402 if
they meet the bar for relevance under Rule 401 and if they
are not inadmissible under Rule 403 or another rule.
Fed.R.Evid. 803(8), 402, 403. Here, the letters are not
clearly relevant; admitting them carries a high risk of Rule
403 unfair prejudice and confusing the issues; and, they are
inadmissible as improper other acts evidence under Rule
The Letters' Relevance
Court finds that the letters are of questionable relevance.
Rule 402 of the Federal Rules of Evidence states that
relevant evidence is generally admissible, whereas irrelevant
evidence is inadmissible. Fed.R.Evid. 402. Rule 401 provides
a two-prong test for determining whether evidence is
relevant: “Evidence is relevant if (a) it has any
tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed.R.Evid. 401. The
relevance threshold established by Rule 401 is very low.
United States v. Lang, 717 Fed.Appx. 523, 539 (6th
Cir. 2006) (citing Dortch v. Fowler, 588 F.3d 396,
401 (6th Cir. 2009)).
case, the letters are probative of the fact that the
providers were in the “Top 50 Opioid Prescribers”
in Tennessee, but they do not speak to the issue of whether
the prescriptions issued by the providers at the clinics in
this case were issued for a legitimate medical purpose in the
course of professional practice. As defendant Clemons notes,
Trial Tr. at 256-57, fifty (50) prescribers in Tennessee will
receive a letter from the Tennessee Department of Health,
regardless of their prescribing practices. The fact of being
a “Top 50” prescriber is not a fact of
consequence in determining this action.
Unfair Prejudice and Confusing the Issues
even if the Court accepted the government's argument that
the letters are relevant, it would grant defendants'
motion because of the very high risk of unfair prejudice and
confusing the issues. Rule 403 of the Federal Rules of
Evidence permits the exclusion of relevant evidence only if
its probative value is substantially outweighed by a danger
of, among other things, unfair prejudice, confusion of the
issues, and misleading the jury. Fed.R.Evid. 403. Unfairly
prejudicial evidence is evidence that “tends to suggest
decision on an improper basis.” United States v.
Schrock, 855 F.2d 327, 335 (6th Cir. 1988) (citing
United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th
Cir. 1986). Rule 403 favors admission and establishes a high
bar for exclusion, Lang, 717 Fed.Appx. at 538, and
district courts enjoy “broad discretion” in
performing Rule 403 balancing. United States v.
Asher, 910 F.3d 854, 860 (6th Cir. 2018).
letters at issue report data from the calendar year of 2014,
thus including prescriptions issued by each of the three (3)
prescribers at clinics other than the clinics in this case.
Defendant Newman left the Lovell Road clinic in March 2014,
and she received the first letter from the Department of
Health after her departure. Trial Tr. at 7. Although
defendant Womack was employed at the Lenoir City and Lovell
Road clinics from January to late July/early August 2014,
id. at 11, defendant Womack contends that she
prescribed for about two (2) months at the clinics in this
case and six (6) months at another clinic in 2014.
Id. at 15-16. While defendant Clemons worked at the
Lenoir City and Lovell Road clinics for all of 2014,
id. at 9, she also worked at two (2) other clinics
during the latter part of that year, and she received the
top-50 letter after the Lenoir City and Lovell Road closed.
Id. at 17. Because the letters do not separate the
data based on prescriptions per month or the provider's
employer at the time the prescription was issued, they
present a substantial risk of unfair prejudice and confusing
the issues. They invite the jury to decide the legitimacy of
the providers' prescribing practices at the Lenoir City
and Lovell Road clinics on the basis of the volume of
prescriptions they issued at various clinics, some not
related to the clinics in this case, rather than the quality
(or clinic specific quantity) of the care they provided at
Lenoir City and Lovell Road. This confusion of ...