UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 17-cr-37-01-JL Opinion No. 2018 DNH 244P Christopher Clough
MEMORANDUM ORDER
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.
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”),
1 Def’s Mem. in Supp. Of Mot. in Lim. (doc. no. 35-1) at 4. 2 Id. at 2.
2 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.
3 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.
3 Def’s Mot. in Lim. (doc. no. 42).
4 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.
Testimony regarding medical board proceedings
Finally, Clough moves to preclude the admission of
testimony regarding proceedings before the New Hampshire Board
5 of Medicine (“Board”). The Board considered whether Clough
should be permitted to retain his license as a physician’s
assistant, and he took part in the proceedings. Clough’s
license was revoked, and the Board found that his testimony was
“less than forthcoming.”4 Clough argues that any evidence
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 17-cr-37-01-JL Opinion No. 2018 DNH 244P Christopher Clough
MEMORANDUM ORDER
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.
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”),
1 Def’s Mem. in Supp. Of Mot. in Lim. (doc. no. 35-1) at 4. 2 Id. at 2.
2 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.
3 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.
3 Def’s Mot. in Lim. (doc. no. 42).
4 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.
Testimony regarding medical board proceedings
Finally, Clough moves to preclude the admission of
testimony regarding proceedings before the New Hampshire Board
5 of Medicine (“Board”). The Board considered whether Clough
should be permitted to retain his license as a physician’s
assistant, and he took part in the proceedings. Clough’s
license was revoked, and the Board found that his testimony was
“less than forthcoming.”4 Clough argues that any evidence
regarding the Board proceedings is both irrelevant and likely to
introduce prejudice and confusion, in part because the Board’s
inquiry was broader than the issues in this case. See United
States v. Phung, 384 Fed. Appx. 787, 792 (10th Cir. 2010)
(unpublished) (“Whenever an administrative body makes a finding
that is closely related to the ultimate question put to the
jury, there is a danger that jurors may simply defer to the
administrative body.”). Clough moves to preclude evidence
regarding the Board proceedings under Federal Rules of Evidence
401 and 403.
In response, the prosecution contends that evidence related
to the Board proceedings is relevant in three ways. First, it
intends to introduce portions of Clough’s sworn testimony before
the board describing his “opiate prescribing philosophy.” This
testimony, the prosecution contends, is relevant to Clough’s
motive and admissible as a party opponent admission. See Fed.
R. Evid. 801(d)(2). Second, the prosecution represents that
4 Board of Medicine Order (doc. 38-1) at 2, 5.
6 evidence at trial will show that Clough stopped prescribing
Subsys to almost all of his patients in the fall of 2014, and
that he told at least some patients that this was because of the
Board’s inquiry. Third, if Clough testifies in his own defense,
the prosecution argues that both his sworn testimony before the
Board and the Board’s determination that he was “less than
forthcoming” are permissible topics for cross-examination under
Federal Rule of Evidence 608(b).
Statements by Clough to patients regarding the Board’s
inquiry and Clough’s sworn testimony before the Board, where
relevant to this case, are potentially admissible as statements
by an opposing party. See Fed. R. Evid. 801(d)(2). And, on
cross-examination, allegedly false portions of the testimony may
be probative of Clough’s character for truthfulness or
untruthfulness. See Fed. R. Evid. 608(b). As none of this
evidence would involve the Board’s rulings or introduce issues
beyond the scope of this case, there is no danger of undue
prejudice. See Fed. R. Evid. 403. Clough can, of course,
request appropriate limiting instructions. See Fed. R. Evid.
105. See Phung, 384 Fed. Appx. at 792-93 (finding potential
prejudice from deference to administrative body “substantially
mitigated” by limiting instruction.”)
There is a greater danger of undue prejudice from the
Board’s characterization of Clough’s testimony as “less than
7 forthcoming.” This credibility determination is not reputation
or opinion evidence, and so is not admissible under Federal Rule
of Evidence 608(a). And, under Rule 608(b), extrinsic evidence
proving the Board’s determination is not admissible as a
specific instance of Clough’s conduct to attach his character
for truthfulness. The government argues, also under Rule
608(b), that the determination may be raised on cross-
examination.
Whether a third-party credibility determination may be
raised via questioning on cross-examination under Rule 608(b) is
an unsettled question. See United States v. Manati, 697 Fed.
Appx. 683, 688-89 (10th Cir. 2017) (unpublished) (collecting
cases and identifying an apparent “split among those circuits
that have addressed it”); United States v. Jones, Cr. No. 07-
10339-MLW, 2014 WL 1093132, at *7 n.4 (D. Mass. Mar. 14, 2014)
(Wolf, J.) (same). Even if such questioning is permissible,
under normal circumstances the cross-examiner would be “stuck
with” the witness’s response, and could not introduce extrinsic
evidence of the actual determination to impeach the witness.
See United States v. Dawson, 434 F.3d 956, 958-59 (7th Cir.
2006). And questioning not barred by Rule 608(b) might yet be
impermissible on other grounds, such as Rule 403. See id. at
959.
8 The probative value of the Board’s evaluation of Clough as
“less than forthcoming” appears, at this time, to be outweighed
by potential prejudice. See Fed. R. Evid. 403. The Board does
not directly elaborate on why it found Clough’s testimony less
than forthcoming, turning instead to discussion of other
evidence in the proceeding.5 If, however, Clough characterizes
the truthfulness of his testimony to the Board at trial, “opens
the door,” or otherwise increases the relevance of the Board’s
credibility determination, cross-examination on the subject may
be permissible.6 Clough could request a limiting instruction
regarding any testimony elicited from such questioning. See
Fed. R. Evid. 105.
This motion is therefore granted-in-part and denied-in-
part. Admission of the Board’s credibility determination, even
on cross-examination, is precluded absent Clough putting the
truthfulness of his testimony before the board at issue. But
his testimony and any relevant statements made to patients about
the Board’s inquiry are not precluded.
Conclusion
Clough’s motions in limine are resolved as follows:
5 Board of Medicine Order (doc. 38-1) at 2. 6 Sound trial practice would suggest approaching the bench to notify the court and adverse counsel before proceeding to introduce such extrinsic evidence.
9 • The motion to preclude testimony regarding the
“opioid crisis” is GRANTED,7 but evidence regarding
Subsys is not precluded.
• The motion to preclude testimony regarding patient
opioid addiction is GRANTED-IN-PART and DENIED-IN-
PART.8
• The motion to preclude testimony regarding medical
board proceedings is GRANTED-IN-PART and DENIED-IN-
PART.9
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: December 11, 2018
cc: Charles L. Rombeau, AUSA Seth R. Aframe, AUSA Patrick J. Richard, Esq. Robin Gagne, Esq.
7 Document no. 35. 8 Document no. 42. 9 Document no. 36.