Opinion
21 Mag. 6626 (SN)
09-02-2022
UNITED STATES OF AMERICA v. NISHANT SHETH, Defendant.
ORDER
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE
The Court's Memorandum and Order of August 18, 2022, determined to appoint an independent medical expert under Federal Rule of Evidence 706. That expert will review the treatment plan proposed by the Bureau of Prisons for the involuntary medication of Defendant Nishant Sheth (the “BOP Treatment Plan”). The Parties have jointly recommended Dr. Andrew P. Levin, M.D., for this role. Based on a review of his credentials, the Court agrees that Dr. Levin is properly qualified.
Dr. Levin will examine Defendant, review prior reports and evaluations of him, and provide the Court with an analysis of the BOP Treatment Plan considering the three factors in Sell v. United States, 539 U.S. 166 (2003), that require medical judgement:
1. Is the BOP Treatment Plan substantially likely to render Defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with his ability to assist his counsel in conducting a defense? This assessment should include, if feasible, a percentage estimate of the likelihood associated with each of these questions.
2. Is the proposed treatment necessary? This should include a review of alternative and less intrusive treatment methods and an assessment of the likelihood that these less intrusive treatment methods will render the Defendant competent to stand trial.
3. Is the BOP Treatment Plan in the best medical interest of the Defendant given his specific condition and medical history? This should address the following questions:
a. Is the BOP Treatment Plan adequately tailored to Defendant's individual medical circumstances?
b. Does Defendant have any underlying medical problems that would increase the risks associated with the BOP Treatment Plan?
c. To the degree not discussed elsewhere, what side effects are likely given the proposed treatment and what will the duration and severity of those side effects be?
d. Does the BOP Treatment Plan adequately account for these side effects and provide a reasonable plan to address them?
e. Does the BOP Treatment Plan conform to generally accepted standards of medical care and drug manufacturer recommendations for the medications proposed?
f. Is additional information needed to assess the adequacy of the BOP Treatment Plan (e.g., dosage rates for the proposed drug regime)?See id. at 180-81; see also United States v. Onuoha, 820 F.3d 1049, 1057 (9th Cir. 2016) (discussing what information should be considered in assessing “best medical interests”); United States v. Evans, 404 F.3d 227, 241 (4th Cir. 2005) (same). Dr. Levin's report shall also include an estimate of how long the BOP Treatment Plan would take to render Defendant competent to stand trial.
Accordingly, it is ORDERED that,
• Pursuant to Federal Rule of Evidence 706, Andrew P. Levin, M.D., is appointed as the Court's independent expert in the evaluation of Defendant's mental competence to stand trial;
• Within seven days of the entry of this order, the Parties shall provide Dr. Levin with all materials relevant to the evaluation of Defendant's mental competence, including, but not limited to the prior reports prepared by Dr. N.G. Berrill and Dr. Miriam Kissin, any materials considered by them in preparing these reports, and the BOP Treatment Plan;
• Dr. Levin shall provide a report addressing the items covered in this Order to the Court and all Parties by September 30, 2022;
• Dr. Levin shall be compensated at a rate of $500 per hour for work related to this matter as well as a flat rate of $4000 per day for one day of travel and examination
time at FMC Devens. He shall submit his invoices to the Court within ten days of providing his report; and
• FMC Devens shall make all reasonable accommodations to permit Dr. Levin to use his laptop in the facility to aid his evaluation.
SO ORDERED.