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barring evidence or argument about the collateral consequences of conviction of a hospital, including exclusion from the Medicare program and potential closure of the hospital, because those "grave" potential consequences were "so unfairly prejudicial, i.e., it is likely to evoke sympathy, invite prejudice, and encourage jury nullification."
Summary of this case from United States v. Al AsaiOpinion
Case No. 1:01-CR-238
August 21, 2002
ORDER
In accordance with the Court's Opinion of this date;
IT IS HEREBY ORDERED that Plaintiff's First Motion in Limine (Dkt. No. 113) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Second Motion in Limine (Dkt. No. 114) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Third Motion in Limine (Dkt. No. 115) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Fourth Motion in Limine (Dkt. No. 116) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Fifth Motion in Limine (Dkt. No. 117) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Sixth Motion in Limine (Dkt. No. 137) is GRANTED as follows: Counsel for Defendant United Memorial Hospital shall immediately advise the Court in writing of the identity of its backup counsel and shall immediately serve the advise the Court in writing of the identity of its backup counsel and shall immediately serve the Court's Opinion and Order on backup counsel; and backup counsel shall immediately certify in writing that he or she is exercising his or her best possible efforts to prepare for trial and to be ready to take over the defense in the event of disqualification of primary counsel.
IT IS FURTHER ORDERED that Plaintiff's Seventh Motion in Limine (Dkt. No. 138) is GRANTED IN PART AND DENIED IN PART as follows: Counsel for Defendant DeWys shall immediately serve the Court's Opinion and Order upon Glen A. Kampman; and Glen A. Kampman shall immediately file his appearance and shall certify in writing that he is exercising his best possible efforts to prepare for trial and to be ready to take over the defense in the event of disqualification of primary counsel; to the extent that the Motion requests identification of counsel, it is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff's Eighth Motion in Limine (Dkt. No. 139) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Ninth Motion in Limine (Dkt. No. 142) is DENIED. IT IS FURTHER ORDERED that Defendant United Memorial Hospital's Motion in Limine Regarding Prior Conviction of Jeffrey Askanazi (Dkt. No. 150) is GRANTED. IT IS FURTHER ORDERED that Defendant United Memorial Hospital's Motion in Limine Regarding Death of Patient D.W. (Dkt. No. 151) is GRANTED IN PART AND DENIED IN PART inasmuch as the testimony will be permitted, but will be subject to a proper limiting instruction.
IT IS FURTHER ORDERED that Defendant United Memorial Hospital's Motion in Limine Regarding Prior State Civil/Workers Compensation Proceedings (Dkt. No. 152) is GRANTED IN PART AND DENIED IN PART inasmuch as the testimony will be permitted, but will be subject to a proper limiting instruction.
IT IS FURTHER ORDERED that Defendant United Memorial Hospital's Motion in Limine to Exclude Testimony and Evidence Concerning Credentialing and Peer Review Materials of Dr. Anthony Kam and Dr. Thomas Lorance (Dkt. No. 153) is DENIED. IT IS FURTHER ORDERED that Defendant Seward's Motion in Limine to Exclude Testimony and Evidence Concerning United Memorial Hospital's Credentialing and Peer Review Processes (Dkt. No. 126) is GRANTED IN PART AND DENIED IN PART inasmuch as the evidence will be permitted, but evidence concerning Defendant United Memorial Hospital's reliance on other hospitals' credentialing will also be permitted.
OPINION
This matter is before the Court on 14 motions in limine filed by the parties, nine by Plaintiff United States of America, four by Defendant United Memorial Hospital ("UMH"), and one by Defendant Daniel Seward, M.D. Defendant Matthew DeWys, D.O. has not filed any motions in limine, but has filed a "Concurrence and Joinder in Motions and Objections," which states that he concurs in Defendants UMH and Seward's motions and responses.
This case is a prosecution for mail fraud, wire fraud and conspiracy to commit mail and/or wire fraud. The charges relate to medical procedures performed by Dr. Jeffrey Askanazi which are alleged to have been medically unnecessary. Dr. Askanazi was earlier convicted of mail and wire fraud in separate proceedings. Oral argument is unnecessary since the legal issues involved have been adequately briefed.
LEGAL STANDARDS
Although the Federal Rules of Evidence do not specifically contemplate use of motions in limine, this practice has evolved as part of the federal courts' inherent authority to manage trials. See United States v Luce, 469 U.S. 38, 41 n. 4 (1984). The practice is a useful tool in order to try cases more efficiently as well as to prevent jury prejudice by excluding evidence which is clearly irrelevant or unfairly prejudicial. See Jonasson v. Lutheran Child Family Serv., 115 F.3d 436, 440 (7th Cir. 1997).
Under the Federal Rules of Evidence, evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Evidence is inadmissible due to prejudice if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
LEGAL ANALYSIS
This Court will address the nine government motions, followed by the four UMH motions, and then followed by Defendant Seward's motion.
1. Motion Regarding Good Faith Reliance on Butterworth Health Corporation
Plaintiff argues that Defendants should be precluded from submitting any evidence that they relied on the advice of Butterworth Health Corporation ("Butterworth") in making the statements relating to the necessity of medical services which are the basis for the federal charges herein. Plaintiff argues that the necessary pre-condition for a reliance on this defense (full disclosure of the pertinent facts to Butterworth) is not met. See United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994). In response, Defendants argue that they are not relying upon an advice of counsel defense.
On consideration of the argument, the Motion will be denied. Defendants are not asserting an advice of counsel defense such that the pre-condition for the defense does not apply. Furthermore, the information is relevant and would aid the jury in understanding the manner in which Defendants shared responsibility with Butterworth for billing for medical services and the extent to which Defendants acted with criminal intent.
2. Motion in Limine Regarding Other Hospitals Granting Privileges to Dr. Askanazi
Plaintiff has moved to exclude evidence that other hospitals granted privileges to Dr. Askanazi. Plaintiff maintains that this evidence is irrelevant and misleading. Defendants urge that this evidence is simply part of understanding UMH's credentialing process as to Dr. Askanazi since it relied upon the credentialing of other hospitals and since such reliance is a common practice of hospitals. See Siddiqi v. United States, 98 F.3d 1427, 1440 (2nd Cir. 1996) (holding that common physician practices regarding billings are relevant to Medicare wire fraud prosecution). Plaintiff does not view this common practice as relevant since it does not relate to billings for "unnecessary medical procedures" and, if it did, the evidence would only prove others' wrongdoing, not absence of wrongdoing by Defendants. Plaintiff also regards the information as helpful to its own case because the comparison is unfavorable to Defendants.
Plaintiff's last argument is most pertinent. If the testimony tends to prove the charges, then it is relevant regardless of who introduces it. Furthermore, Plaintiff's characterization of the evidence assumes Defendants' guilt and the purpose of the trial is for the jury to assess both Plaintiff's theory and Defendants' theories of the case. Overall, the Court finds that the evidence is relevant and not misleading. Therefore, Plaintiff's Second Motion in Limine will be denied.
3. Motion in Limine Regarding Consequences of Conviction
Plaintiff requests that the jury not be allowed to hear testimony or argument from Defendants disclosing the statutory consequences of a conviction of a hospital — namely, exclusion from the Medicare program and further likely consequence of closure of the hospital. Plaintiff argues that this information is irrelevant because, under Sixth Circuit Court of Appeals Pattern Criminal Jury Instruction 8.05 and case law, a jury is not to consider facts pertinent to punishment in deciding guilt.
Defendants, in opposition, argue that an exclusion from the Medicare program is a civil, as opposed to criminal, consequence of conviction. They also argue that they have a valid theory for presenting the testimony — to indicate why it would have been completely irrational for UMH to have engaged in the charged conspiracy, which reflects an absence of criminal intent.
Even if collateral civil consequences of a criminal conviction are not criminal punishment, they are so related to criminal punishment that the usual jury instructions relating to punishment (which bar consideration of it) should apply. This is so, if for no other reason, by pure dint of logic. Likely punishment is excluded from jury consideration for reasons other than relevance. Likely punishment is often relevant for the same reasons that Defendants urge, i.e., it tends to undermine the notion that a criminal defendant intended to engage in the crime. However, it is excluded because the information is so unfairly prejudicial, i.e., it is likely to evoke sympathy, invite prejudice, and encourage jury nullification. This is especially so in this case where the possible consequences of conviction are so grave — i.e., closure of an isolated rural hospital with the attendant effects on its patients, workers and the local economy. Accordingly, the Third Motion in Limine will be granted.
4. Motion in Limine Regarding Statements of Richard Bouma
Plaintiff requests that the Court permit the testimony of Butterworth/UMH Attorney Richard Bouma concerning particular conversations with UMH CEO Michael Mihora and Dr. Askanazi. The conversation between Mihora and Bouma allegedly occurred in 1995 when Bouma approached Mihora to confirm whether he was negotiating with Dr. Askanazi for employment. According to the government, Mihora confirmed the negotiations and was told by Bouma to inform the Board of Directors of the negotiations. This was a sensitive subject at the time because UMH was deciding on a new anesthesiology contract and Dr. Askanazi was competing for the contract against another medical group which had made a bid for the contract which somehow Dr. Askanazi knew to match. Mihora did not inform the Board as instructed by Mihora, but rather resigned and went to work for a company owned by Dr. Askanazi. Defendants oppose the testimony on the grounds of privilege, lack of relevance and unfair prejudice.
On consideration of the argument as to the Mihora conversation, the Court determines that Bouma's conversations with Mihora are relevant because they tend to show that Defendant UMH joined the charged conspiracy. The Court also determines that the evidence would not be unfairly prejudicial and that it is not protected by privilege. It is true that Defendant UMH has asserted a somewhat compelling attorney-client privilege argument under the case of Upjohn v. United States, 449 U.S. 383, 394-96 (1981), i.e., UMH's attorney's conversations with employees should be deemed privileged when conducted for the purpose of investigation and advice to the client. Even so, the privilege has now been waived by counsel for UMH, who disclosed documents to Plaintiff ( see Plaintiff's Exhibits D-L) which clearly disclosed the subject matter and much of the content of the conversations. See United States v. Collis, 128 F.3d 313, 320 (6th Cir. 1997); Nguyen v Excel Corp, 197 F.3d 200, 206 (5th Cir. 1999).
Plaintiff also wants to offer the testimony of Bouma regarding a conversation between himself and Dr. Askanazi, in which Bouma asked Dr. Askanazi to resign. This testimony would contradict Dr. Askanazi's letter of August 21, 1996, which states that he resigned to pursue other business opportunities. Plaintiff further asserts that it might contradict UMH's suggestion that it asked for the resignation because of its concerns about Dr. Askanazi's medical practices.
Defendants have opposed the admission of the evidence on the grounds of attorney-client privilege, speculation, lack of relevance and unfair prejudice.
On consideration of the argument regarding the Askanazi conversation, the Court determines that the evidence of the conversation is relevant to UMH's possible defense (that it discharged Askanazi upon its first notice of problems) particularly since the conversation occurred on the eve of Askanazi's resignation. There is also no proper basis for asserting attorney-client privilege regarding the conversation nor is there any other proper basis for objection to the testimony. As such, Plaintiff's Fourth Motion in Limine will be granted.
5. Motion to Exclude Reference to Jack Kevorkian
Plaintiff's Fifth Motion in Limine asks that the Court exclude all reference to Jack Kevorkian as irrelevant and prejudicial. Defendant UMH opposes the Motion on the ground that the Jack Kevorkian public debate underscores the need for effective pain management. Plaintiff in reply observes that it is willing to stipulate to the need for effective and acceptable techniques of pain management, but that this discussion may be had without reference to Jack Kevorkian.
On consideration of the argument, the Court concurs with Plaintiff. Jack Kevorkian has no real relevance to this case and the subject of effective pain management can be broached without inviting the parade of emotional and political baggage that follows in the wake of Jack Kevorkian's name. Therefore, the Motion will be granted on the grounds of lack of relevance and unfair prejudice.
6. Motion to Require Disclosure of Backup Counsel for Defendant UMH
Plaintiff's Sixth Motion in Limine asks that UMH be ordered to disclose the identity of its backup counsel and certify counsel's readiness. "Backup counsel" refers to the fact that Defendants UMH and DeWys were ordered by this Court's Order of March 15, 2002 to employ additional counsel to conduct certain witness examinations and to have the additional counsel ready to take over representation if a conflict of interest arose during trial which required the disqualification of attorney Albert Addis. Defendant UMH has failed to respond.
In the absence of a response to the Motion, the Court must assume that Defendant UMH needs the encouragement of a judicial order to comply with the March 15, 2002 Order. Therefore, Plaintiff's Sixth Motion in Limine will be granted and Defendant UMH will be ordered to disclose its backup counsel immediately, and said backup counsel will be ordered, on notice of the Court's Opinion and Order, to immediately file his or her appearance and certify in writing that he or she is exercising his or her best possible efforts to prepare for trial and to be ready to take over the defense in the event of disqualification of primary counsel.
7. Motion to Require Disclosure of Backup Counsel for Defendant DeWys
Plaintiff's Seventh Motion in Limine requests that Defendant DeWys be required to disclose its backup counsel and certify counsel's readiness.
Defendant DeWys has responded by identifying its backup counsel as Glen A. Kampman, 2998 Fenner Street, Marlette, MI 48553. However, Defendant DeWys will not certify counsel's readiness because he believes that even his primary counsel is not ready to proceed.
Therefore, the request to require disclosure will be denied as moot, but the request to order certification will be granted to the extent that said backup counsel will be ordered, on notice of this Opinion and Order, to immediately file his appearance and to certify in writing that he is exercising his best possible efforts to prepare for trial and to be ready to take over the defense in the event of a disqualification of primary counsel.
8. Motion to Permit Reference to Dr. Jeffrey Askanazi's Conviction
Plaintiff's Eighth Motion in Limine asks that it be permitted to offer evidence referring to Dr. Jeffrey Askanazi's conviction. Plaintiff asserts that this should be allowed because the alleged date of this conspiracy extended beyond the date of Dr. Askanazi's conviction such that a jury could make a proper inference that Defendants, who continued billing and collection as to Askanazi's unnecessary medical services after the date of his conviction, were doing so intentionally and with notice that the services billed were unnecessary. Defendants have responded in opposition to the Motion.
This argument highlights one of the real and terrible dangers of any conspiracy prosecution — that a jury will make an inference that "guilty `birds of a feather are flocked together.'" United States v. Griffin, 778 F.2d 707, 711 (11th Cir. 1985) (quoting Krulewitch v. United States, 336 U.S. 410, 454 (1949) (Jackson, J., concurring)); see also cases cited therein. Furthermore, Plaintiff's argument that the prejudice to Defendants is "fair" prejudice because the conviction is proof of notice distorts the record both in this case and the Askanazi case. The great majority of the criminal charges do not relate to the post-conviction conduct of the Defendants. The greatest extent of the conspiracy charged herein does not relate to the post-conviction conduct. Likewise, the jury's finding of guilt as to Dr. Askanazi was only pertinent to the medical services charged in that case, which are different medical services from many, if not most, of the medical services charged in this case. Thus, in the Court's judgment, the evidence should be excluded to prevent danger of unfair prejudice. As such, Plaintiff's Eighth Motion in Limine will be denied.
Also, the government theory in the Askanazi case was different in that many of the criminal charges related to bills for services which were not performed as opposed to unnecessary medical services. Defense counsel further notes that the charged conduct of Defendant UMH in this case — which included the collection referral of the account of a Brenda Shaw in September 2000 — does not relate to a patient account as to which there was a jury finding in the Askanazi case that the medical services were unnecessary. Thus, this evidence would not be fairly presented as to UMH and its unfairness as to Defendant Seward would be even greater given that Seward is not responsible for UMH's collection activities in September 2000, which was long after he left UMH's employment.
9. Motion Regarding Reciprocal Discovery
Plaintiff has moved to exclude evidence that Defendants obtain through discovery on the ground that they have not complied with their reciprocal discovery obligations under Federal Rule of Criminal Procedure 16. Defendants, through attorney Kent, have answered this Motion and have stated that they are presently examining and re-examining their files to determine if they have any such materials and that they will duly disclose them if and when discovered. They also indicate that they are in the process of disclosing expert witness information.
It appears to the Court that there is at present no evidence of non-compliance with Rule 16 and that no sanctions are presently appropriate. Therefore, Plaintiff's Ninth Motion in Limine will be denied as unnecessary.
10. Defendant UMH's Motion Regarding Dr. Askanazi's Conviction
Defendant UMH has moved to exclude as prejudicial evidence by the government that Dr. Askanazi was convicted of mail and wire fraud. This briefing duplicates the briefing filed as to Plaintiff's Eighth Motion in Limine, such that the same result should obtain. Namely, for the reasons previously given, the Motion will be granted and Plaintiff will be prohibited from eliciting testimony as to Dr. Askanazi's conviction.
11. Defendant UMH's Motion Regarding Death of D.W.
Defendant UMH has moved to exclude evidence that Dr. Jeffrey Askanazi caused the death of a patient, D.W., before the discovery that he was utilizing unnecessary medical procedures. Defendant urges that the death was tragic, there never has been any judicial determination as to negligence relating to the death, and the jury should not be informed of it because it would unfairly prejudice their deliberations as to the billings for medical procedures. Plaintiff argues in response that the death of D.W. was alleged in the Indictment and it was further alleged that D.W. died following the unnecessary surgical procedures. Plaintiff asserts that Defendant UMH's response to the incident tends to indicate that Defedant UMH knew that the procedures were unnecessary when performed and billed. Finally, Plaintiff contends that an exclusion of the evidence would essentially mislead the jury by suggesting that Defendant UMH aggressively responded to billing and treatment problems in the absence of a serious injury or death.
On consideration of the competing arguments, the Court determines that the evidence should be allowed because it is relevant to the criminal charges and because a contrary order would likely mislead the jury. However, the Court will grant the Motion to the extent that the Court will give a proper limiting instruction providing: (1) the Defendants are only on trial for criminal charges in this case and not for causing the death of D.W.; (2) evidence that D.W. died after surgery is only important if it relates to whether Defendants conspired to bill for unnecessary medical services as described in the Indictment and/or whether Defendant UMH committed mail or wire fraud by billing for unnecessary medical services as described in the Indictment; and (3) in assessing the testimony you should focus on whether Defendants agreed to bill for medical procedures known by them to be unnecessary, not whether there were either positive or negative health consequences as to the procedures performed. The Court expects that the parties will craft a limiting instruction on this subject for use by the Court at an appropriate time.
12. Defendant UHM's Motion Regarding Workers Compensation Proceedings
Defendant UMH has moved the Court to exclude as prejudicial findings by an administrative law judge in workers compensation proceedings that medical procedures performed by Dr. Askanazi, for which he sought payment, were not medically necessary. Defendant argues that to use the findings as substantive evidence that the procedures were not medically necessary would contradict black letter law as to the application of collateral estoppel and would saddle Defendant with findings as to a proceeding in which it was not a party. Plaintiff, to the contrary, argues that it does not intend to use the evidence to establish medical necessity. Rather, Plaintiff intends to use the evidence to establish notice and intent — that is, when Defendant UMH was continuing to bill and collect for Dr. Askanazi's procedures, it knew the procedures had been rejected for payment by others as medically unnecessary.
On consideration of the Motion and Response, the Court determines that the Motion should be denied in that Plaintiff should be permitted to use the evidence for the limited purpose suggested. However, because the evidence will be permitted for a limited purpose, the Court expects that the parties will craft a limiting instruction on this subject for use by the Court at an appropriate time.
13. Defendant UMH's Motion Regarding Peer Review Materials
Defendant UMH has moved to exclude evidence concerning the quality, thoroughness or adequacy of Defendant UMH's peer review process and, especially, as it pertained to the credentialing of Drs. Anthony Kam and Thomas Lorance. Defendant asserts that this evidence pertains only to negligence (as opposed to intentional misuse of the peer review process) and that the information is especially irrelevant because it concerns two physicians not involved in the events which are the subject of the pending criminal charges. Plaintiff, in response, argues that the evidence shows that the peer review process utilized by Defendant UMH exercised long delay and consideration of opposing view points when addressing complaints regarding Dr. Askanazi, but exercised summary justice when addressing complaints filed by Dr. Askanazi against these other physicians. The evidence tends to prove that Dr. Askanazi, through influence with the Hospital, manipulated the peer review process for his own benefit and that persons in charge of the process had an untoward relationship with Dr. Askanazi.
The description of the evidence is reminiscent of the Lewis Carroll's Queen of Hearts, who opted to "Sentence first — verdict afterwards." Lewis Carroll, Alice's Adventures in Wonderland 96 (W.W. Norton 2d ed. 1996).
Overall, the Court is convinced by Plaintiff's argument that the evidence is relevant and is not unfairly prejudicial to Defendants. As such, Defendant UMH's Motion will be denied.
14. Defendant Seward's Motion Regarding Peer Review
Defendant Seward's Motion in Limine seeks exclusion of all peer review evidence as irrelevant or, in the alternative, an order allowing Defendant to submit evidence of credentialing by other hospitals. Plaintiff opposes the Motion.
This Court has already considered both of these arguments above and sees no reason to reach a different conclusion as to this Motion from that stated above. Therefore, the Motion will be denied as to use of peer review testimony, but will be granted to the extent that Defendants will be permitted to use testimony concerning credentialing of Dr. Askanazi by other hospitals.
CONCLUSION
For the reasons stated, an Order shall issue resolving the parties' motions in limine as stated herein.