UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 17-cr-37-01-JL Opinion No.

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

, 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,

(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,

(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,

(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,

, 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,

(7th Cir.

2006). And questioning not barred by Rule 608(b) might yet be

impermissible on other grounds, such as Rule 403. See

.

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.

10