Prosecuting Doctors as Drug Dealers

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Prosecuting Doctors as Drug Dealers

 

Introduction

 

I have discussed in passing issues of abuse of discretion by the district court. Those discussions, however, were limited in both scope and depth. In this essay I aim to show that there was repeated and egregious abuse of discretion by the trial court, which amounted to judicial misconduct and judicial bias. (I understand it is quite daunting a task to read through such a lengthy essay, so I have provided a two-page summary of the major issues raised at the end.)

 

The following definitions are taken from the Black’s Law Dictionary (11th Edition, 2019):

 

“Abuse of discretion” is defined as “an adjudicator’s failure to exercise sound, reasonable, and legal decision making.” (p. 13) “Misconduct” is defined as “a dereliction of duty; unlawful, dishonest or improper behavior, especially by someone in a position of authority or trust.” (p. 1195)

“Bias” is defined as “a mental inclination or tendency; prejudice; predilection.” (p. 198)

“Judicial bias” is defined as “a judge’s bias toward one or more of the parties to a case over which the judge presides.” (Id.)

 

The integrity of the criminal justice system depends largely on the court. Federal judges have a statutory obligation to maintain independence and impartiality. There is no dispute that a fair proceeding before a neutral judge is a basic component of due process. Any judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (28 U.S.C. Subsection 455(a))

 

The Supreme Court (the Court) in Liteky v. United States (1994) explained that under Subsection 455(a), a judge does not have to be subjectively biased or prejudiced so long as the judge appears to be so. In other words, “what matters is not the reality of bias or prejudice but its appearance.”

 

During my criminal proceedings, Judge Callie V.S. Granade, a Senior Federal District Judge of the Southern District of Alabama committed numerous errors, a majority of which were in evidentiary rulings.

 

The importance of evidentiary rulings was emphasized by the Court half a century ago in Chambers v. Mississippi (1973), where the Court expressly stated that cumulative trial errors in evidentiary rulings could be serious enough to violate the defendant’s due process right. When so, the defendant’s convictions required reversal, as was in Chambers.

 

The Court in Liteky expressed that judicial rulings alone ALMOST never constitutes a valid basis for bias unless such opinions display a deep-seated favoritism or antagonism that would make fair judgment impossible. Here I assert that my criminal proceedings fell into such a rare exception where there was indeed a deep-seated favoritism for the prosecution. To support this claim I need to present sufficient examples of the most egregious trial errors so as to allow any objective reader to reasonably draw the inference that there was, at least, the appearance of bias. However, the question is: How do I decide that, of the numerous trial errors committed by Judge Granade, which ones were the most egregious?

 

The Court’s precedent, Brecht v. Abrahamson (1993), is edifying. In Brecht, the Court advised that, “in an unusual case, a deliberate or especially egregious trial error, or one that was combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceedings as to warrant ….relief.” As seen the Court articulated that a deliberate trial error, or an egregious trial error with a pattern (i.e. more than once) of prosecutorial misconduct, to be the most egregious type that might so infect the integrity of the proceedings.

 

Judge Granade had been a federal proseeutor for 25 years prior to becoming a federal judge. At the time of my trial, Judge Granade had been a district judge for one and a half decades. Judge Granade certainly knew what she was required to do as a neutral judge when faced with blatant prosecutorial misconduct; nonetheless, when she chose to condone, dissemble, or side with the prosecutors in aiding the prosecution, the unusual scenario described by the Court in Brecht, namely “a deliberate or especially egregious trial error” with concomitant prosecutorial misconduct occurred. Such errors are the main focus of this essay.

 

Examples of Egregious Abuse of Discretion Amounting to Judicial Misconduct, Indicating Judicial Bias

 

1. Trial Court Abused Its Discretion in Erroneously Admitting the Pill Mill Doctor Data Analysis Project (PMDDAP) Expert Testimony as “Lay” Testimony in Violation of Multiple Federal Rules and Defendants’ Due Process Rights.

 

Legal Background

 

Under the Federal Rules of Evidence {Fed. R. Evid.), as a lay witness, he or she may only testify to an opinion that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Fed. R. Evid. 702. (Fed. R. Evid. 701) {Rule 701)

 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may give opinion testimony if:

(a) the expert’s scientific, technical, or other specialized knowledge will help to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and method to the facts of the case.

(Fed. R. Evid. 702) (Rule 702)

Federal Rules of Criminal Procedure (Fed. R. Crim. P.) 16(a)(1)(G) requires the government to disclose certain information to

a defendant, including, among other things, a written summary of any expert testimony the government intends to use. Fed. R. Crim. P. 16(d)(2) provides that when a party fails to comply with that requirement, a trial court can impose any appropriate sanction, including granting a continuance or excluding the undisclosed evidence.

 

Fed. R. Evid. 401 provides that 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. (Rule 401)

 

Fed. R. Evid. 402 provides that relevant evidence is admissible unless any of the following provides otherwise: the U.S. Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. (Rule 402)

 

Fed. R. Evid. 403 provides that the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. (Rule 403)

 

Factual Background

 

What is “Pill Mill Doctor Data Analysis Project” (PMDDAP)?

 

PMDDAP is a computer data analysis algorithm, created by a third-party contractor, Health Integrity, LLC, which relied on Medicare prescription information in generating a PMDDAP score. (Tr. 1/26/2017, p. 2810) “It is intended to identify prescribers who are prescribing schedule II, Ill, IV controlled substances to Medicare beneficiaries and identifying those that are at high risk for fraud, waste, and abuse in doing so; claimed by the government witness, Dr. Kevin McCash. (Tr. 1/26/2017, p. 2812)

 

PMDDAP score derived from a computer algorithm, is clearly based on scientific, technical and specialized knowledge; therefore, it is expert testimony, not lay testimony. The defense team, however, had never been informed of it being expert testimony (which required prior disclosure) until its presentation on Day 13 of the trial. Thus the defense team vehemently objected to the admission of PMDDAP on this and other grounds. (see below) The debate took 15 pages of trial transcript. (Id., p. 2743-58) E.g.,

 

“It’s their internal classification…it does not prove that the doctors are running a pill mill, but that obviously is very inflammatory …it is completely irrelevant.” (Id., p. 2745-76)

 

”We would object to any of this pill mill doctor data analysis information. (Id., p. 2746)

 

“A Pill Mill Doctor Data Analysis Project doesn’t mean anything, doesn’t help the jury in any way whatsoever.” (Id.)

 

(iv} ”This is expert analysis…that goes beyond just looking at data…and this was not disclosed to us as an expert opinion…” (Id., p. 2740-50)

 

(v) “That’s expert testimony…make us a risk factor as a pill mill…that’s irrelevant…that’s not helpful to the jury and it’s prejudicial. (Id., p. 2751-52)

 

Judge Granade, in fact, conceded that PMDDAP was expert testimony: “What does it mean… number of beneficiaries exceeding travel threshold and percent exceeding threshold? (Id., p. 2751); “It may be expert testimony …I don’t understand how that is not expert testimony.” (Id., p. 2752-53)

 

Judge Granade, however, still allowed its admission, under the condition that the prosecution took the term “pill mill” off the title, “Pill Mill Doctor Data Analysis Project.” (Id.. p. 2755) (“I think it is admissible solely as an analysis of the data without the pill mill title on there.”) The following exchange showed how Judge Granade rationalized to support her ruling:

 

The Court: [C]an he give the testimony about the analysis without saying pill mill? Mr. Bodnar: Yes, I’ll make sure he does not say that. (Id., p. 2757)

 

Mr. Essig (Dr. Couch’s counsel): [T]he underlying data is arrived at …through some scientific or specialized knowledge or program. Our point is we can’t meaningfully cross-examine that…it was never disclosed to us as an expert testimony.

 

The Court: Well, he’s not an expert witness if he’s just testifying about the analysis of their data and not what it means or how the factors were chosen or anything.

 

Mr. Essig: And just for clarity’s sake, our position would be: without the ability to go into that and have an independent expert explain the underlying data…we cannot meaningfully cross-examine it. That’s our position.

 

The Court: Okay. Well, I note your objection to that. (Id., p. 2757-58)

 

When government witness Dr. Kevin McCash, PhD, took the witness stand, the defense counsel renewed its objection twice, each of which was overruled by Judge Granade:

 

By Mr. Bodnar: I am going to show you now what has been marked as Government Exhibit 27-27. Mr. Wilson: Your Honor, based on our prior discussion, we object to that material.

The Court: All right. I overrule the objection. (Id., p. 2812-13)

 

Again by Mr. Bodnar. United States moves to admit Government’s Exhibit 27-28.

Mr, Wilson: Renew our objection, Your Honor. The Court: All right. Overruled… (Id., p. 2821)

 

 

Admission of PMDDAP expert testimony as lay” testimony violated Rule 701 and Rule 702.

 

Rule 701 stipulates that lay testimony cannot be based on scientific, technical, or other specialized knowledge, which falls into the scope of expert testimony under Rule 702. Judge Granade knew or should have known that taking the term “pill mill” off the title “Pill Mill Doctor Data Analysis Project” did not change the nature of the testimony from expert to “lay.” Allowing the admission of PMDDAP was a serious error.

 

In United States v. Willner, 795 F.3d 1297 {11th Cir. 2015), a healthcare fraud case, the Eleventh Circuit held that the district court “abused its discretion in allowing this testimony by Quindoza on direct examination because Quindoza gave expert testimony but had not been disclosed as an expert. Quindoza… works for a private contractor that investigates Medicare fraud…This testimony was ‘based on scientific, technical, or other specialized knowledge within the scope of Rule 702,’ and the district court erred in determining that it was permissible under Rule 701. Pennitting this testimony was error.” (Id., at 1318)

 

The PMDDAP testimony by Dr. McCash was similar in nature to the expert testimony given by Quindoza in Willner. Judge Granade abused her discretion by allowing its admission under “lay” testimony in violation of Rule 701 as in Willner.

 

In United States v. Reyes Vera, no F.3d 1232 (9th Cir. 2014), the Ninth Circuit held that the district court plainly erred in admitting testimony by case agents interpreting record calls where the testimony intermixed lay and expert testimony and the district court did not explain the distinction to the jury, all of which constituted plain error. The Ninth Circuit vacated the convictions.

 

In the instant case, Judge Granade clearly understood that simply skipping the term “pill mill” and limiting Dr. McCash’s testimony to “analysis of their data and not what it means or how the factors were chosen or anything” would not change it from expert to lay testimony. Even with the above modifications. PMDDAP was still expert testimony because it was based on special knowledge rather than personal perception.

 

Further, Judge Granade did not give the jury any relevant instruction to distinguish them – the same error committed by the district court in Reyes Vera. Even assuming the jury had indeed received a mixed testimony of both lay and expert, this “hybrid” testimony could only confuse and mislead the jury to prejudice against the defendants as the Ninth Circuit held in Reyes Vera. The error in the instant case was more egregious because the defense repeatedly objected to the admission of PMDDAP on multiple grounds. (The debate was recorded in 15 pages of trial transcript.) (Id., p. 2743-58)

 

Admission of PMDDAP testimony violated Rule 401, 402, and 403.

 

Rule 401 and 402 require that evidence be relevant and only relevant evidence is allowed to be admitted. Rule 403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by factors such as unfair prejudice, confusing the issue, misleading the jury, wasting time, or needlessly presenting cumulative evidence.

 

PMDDAP had zero probative value; therefore, it is irrelevant, and its admission violated both Rule 401 and 402.

 

The distinction between PPSA and other pill mills was discussed in detail in Part Two of “Prosecuting Doctors as Drug Dealers.” (p. 1-3)

 

PMDDAP is a computer program that generated a score based the number of medication prescriptions in Medicare patients. Of the 17 factors that were imputed into PMDOAP analysis, the most important factors, i.e. factors No. 1, No. 2, and No. 3, were the number of schedule II, Ill, IV prescriptions, respectively. (Tr. 1/26/2017, p. 2813)

 

As mentioned in Part Two, a unique feature of prosecuted pill mills is the alleged use of cash for prescriptions of controlled medications. (United States v. Otl, 872 F.3d 678 {5th Ck. 2017); United States v. Sachs, 717 Fed. Appx. (11th Cir. 2017), United States v. Crittenden, 716 Fed. Appx. 142 (4th Cir. 2017)). However, there was no Medicare billing at all because the above operations accepted only cash payments.

 

Using PMDDAP scores (which relied heavily on prescriptions of controlled medications in Medicare beneficiaries) to screen Oti, Sachs, and Crittenden would return a PMDDAP score of Zero. In other words, PMDDAP, when used as a screening test, would have missed all those alleged pill mills that accepted only cash. As a result, PMDDAP had zero utility, i.e. it had no real probative value in identifying alleged pill mills, contrary to what it claimed to do. On this basis, its admission violated Rule 401 and 402.

 

PPSA had been in business for 17 years and had thousands of Medicare patients. The most common insurance carriers that PPSA patients had were BC/BS and Medicare. (Tr. 2/9/2017, p. 5014) PPSA was a tertiary pain clinic and all PPSA patients were pain patients (unlike other primary care or specialty clinics). Opioids are powerful analgesics, or pain killers. Both Or. Couch and I scored on the high ends simply because each of us had a high number of Medicare patients. As shown high PMDDAP scores were not probative for pill mills while low PMDDAP scores would fail to identify those alleged cash-only pill mills. That is why PMDDAP was extremely deceiving. It not only wasted jury’s time but also confused the issues and misled the jury, all of which fall into the criteria of exclusion of admission under Rule 403.

 

The admission of PMDDAP violated Rule 403 and may cause unintended harm to both medical clinics and Medicare patients.

 

PMDDAP testimony was also unduly prejudicial, especially in light of the charges brought against Dr. Couch and myself, “Ruan and Couch ran what was, in essence, a pill mill. Their primary method of pain management was writing multiple prescriptions for high doses of Schedule II. Ill. IV Substances… (2nd Superseding Indictment, p. 8). PMDDAP testimony was highly inflammatory, when such language as “[t]hose individuals scoring 1,000 are most at risk for fraud, waste, and abuse” was used before the jury. (Tr. 1/26/2017, p. 2813)

 

The sole purpose of introducing PMDDAP was for its prejudicial effects against the defendants, because Mr. Bodnar already knew that PPSA was not a pill mill. Recall what he stated in his opening statement:

 

“PPSA was not cash only. In fact, they wouldn’t accept that PPSA required patients to be referred by another doctor.

They required patients to have insurance…this was not a pill mill in your traditional sense. What this was was a money mill.” (Tr. 1/5/2017. p. 28)

 

Even Judge Granade so concluded at the sentencing hearing: “This is not a typical pill mill. This is not a typical doctor overprescribing case. This is a very unusual case. I don’t think there is any question about it.” (Tr. 5/25/2017, p. 87)

 

Remarkably, PMDDAP has never been used elsewhere in the prosecution of other pill mills other than PPSA. A LexisNexis search using the key phrase “pill mill” returned more than 300 matches, white using either “PMDDAP” or “Pill Milt Doctor Data Analysis Project” returned none. This finding confirms the evil nature of using PMDDAP in the prosecution of Dr. Couch and myself at our trial. PMDDAP, in essence, is specially made to frame us, even though both the prosecutors and the judge knew that PPSA was not a pill mill. The admission of PMDDAP gravely violated Rule 403.

 

Furthermore, PMDDAP can actually cause great harm to clinics that render care to Medicare patients as well as to Medicare patients themselves. Using PMDDAP to incriminate such medical clinics may potentially force them to abandon their Medicare patients for fear of government prosecution.

 

Many painful conditions such as degenerative joint and/or spine diseases, rheumatoid arthritis, nerve diseases such as post herpetic neuralgia, diabetic neuropathy, and others are more prevalent and symptomatic in Medicare population with advanced age. The prosecution of clinics such as PPSA may lead to millions of Medicare patients with debilitating pain nowhere to go for pain management. On the other hand, many clinics may potentially be driven to become cash-only clinics – closer to becoming “pill mills” per government and thus more at risk for subsequent “pill mill” prosecution.

 

Admission of PMDDAP violated Fed. R. Crim. P. Rule 16.

 

(i) Fed. R. Crim. P. 16(a)(1)(G) provides that if the government intends to present a witness as an expert in a criminal trial, the government must disclose that witness as an expert prior to trial and provide a written summary of the expected testimony. Fed. R. Crim. P. 16(d)(2) provides that when a party fails to comply with the requirement, a trial court can impose any appropriate sanction, including granting a continuance or excluding the undisclosed evidence.

{ii) The Tenth Circuit in United States v, Moya, 148 Fed. Appt. 819 (10th Cir. 2018) explained that in determining the appropriate sanction, district court should consider the Wicker factors described in United States v. Wicker (848 F.2d 1059): {1) the reason of the delay, including whether the noncompliant party acted in good faith; (2} the extent of prejudice to the party that sought disclosure; and (3) the feasibility of curing the prejudice with a continuance.

 

In Moya, the government did not give the defendant the notice that a witness would testify until two weeks prior to the trial, and , the expert designation came less than one week before the trial. The district court decided that Moya would be prejudiced by having to prepare to cross-examine an expert witness on such a short notice; therefore, the district court excluded the expert testimony. In evaluating the reason for government’s delay in response, the district court found the government’s response that “no party is perfect” was insufficient to justify the lengthy delay in disclosure.

 

In the instant case, the defendants were not informed of the PMDDAP as expert testimony until Day 13 of the trial, right before its presentation. The only reason the government gave was qit is not expert testimony.” {Tr. 1/26/2017, p. 2750) Even Judge Granade could not agree with the Government: “Where do the risk factors come from?” (Id); “What does it mean, number of beneficiaries exceeding travel threshold and percent exceeding travel threshold? What does it mean? (Id., p. 2751) “I don’t understand how that is not expert testimony. (Id., p. 2753)

 

The prosecutors in our case were seasoned federal prosecutors. They clearly knew PMDDAP was expert testimony because it was based on specialized knowledge rather than direct personal perception. Failure to recognize this was one thing, purposely withholding this information from disclosure so as to ambush the defendants with surprise testimony was quite another.

 

Judge Granade was obviously put into an awkward spot by the prosecutors. She knew exactly what the prosecutors were required to do under Rule 16(a)(1)(G) and what she was supposed to do under Rule 16(d)(2). The latter states: A trial court may impose any appropriate sanction, including granting a continuance or excluding the undisclosed testimony. As advised by the court in Moya, Judge Granade was required to conduct a Wicker inquiry with regard to the reason of the delay, whether the prosecutors had good faith, the extent of the prejudice to the defendants and feasibility of curing the prejudice with a continuance. Judge Granade, however, did none of the above. Instead, she admitted PMDDAP under “lay” testimony.

 

The Advisory Committee Note to 1993 Amendment of Rule 16(a){1)(G) advises to “minimize surprise that often results from unexpected expert testimony, reduce the need for continuance, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through cross-examination. (Federal Court Rule, 2 1)

 

In United States v. Lang, 717 Fed. Appx. 523 (6th Cir. 2017), defendant Lang was convicted of running a pill mill. Lang argued that the district court erred in excluding 14 defense witnesses who were actually providers she had used for those clinics she ran. The Sixth Circuit, however, held that the district court did not err in finding these witnesses were undisclosed experts. It pointed out that Lang’s failure to disclose the witnesses was a “technical ambush,” designed to circumvent Rule 102 and avoid revealing her witnesses to the other side. The inverse of this is that, had the trial court not barred Lang from presenting these witnesses, it would have abused its discretion.

 

In United States v. Afyare, 632 Fed. Appx. 272 (6th Cir. 2017), the Sixth Circuit explained measures used to ensure that a party will not evade the expert witness disclosure set forth in Fed. R. Crim. P. 16 by SIMPLY CALLING AN EXPERT WITNESS in the guise of a layperson. (emphasis added) “The [court should be vigilant to preclude manipulative conduct designed to thwart the expert disclosure and discovery process. The Six Circuit further criticized the prosecution’s “proffering an expert in lay witness clothing” (thereby evading the expert-witness disclosure requirements and proffering “surprise” testimony.)

 

In the instant case, Judge Granade not only condoned prosecutors’ manipulative misconduct that violated Rule 16(a)(1)(G) but also aided the prosecution, disregarding Rule 16(d}{2). Judge Granade, in essence, abandoned her rule of a neutral gatekeeper as a federal district judge.

 

Judge Granade abandoned her gatekeeping role in violation of the Daubert Rule and Rule 702.

 

In Daubert v. Merrell Dow Pharms., Inc. {1993), 509 U.S. 579, the Supreme Court held that under Rule 702, the trial court must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Although Daubert involved a civil case, Daubert is the standard that the Court has given for testing the admissibility of scientific evidence under Rule 702. The Fed. R. Evid. apply to both civil and criminal cases. (Fed. R. Evid. 1101{b)) [United States v. Bahena, 223 F.3d6797 (8th Cir. 2000)]

 

As a neutral gatekeeper, Judge Granade was required to make a Daubert de-termination on PMDDAP testimony in making sure that it was both relevant and reliable, assuming the PMDDAP testimony had been disclosed timely to the defendants. Based on my earlier discussion, PMDDAP was neither relevant nor reliable when used to identify pill mills. Judge Granade failed to make a Daubert assessment on PMDDAP prior to its admission, despite defendants’ repeated objections on multiple grdunds. A disinterested judge would have excluded the admission of PMDDAP pursuant to the Daubert Rule and Rule 702. Judge Granade, however, admitted PMDDAP by “downgrading” it to “lay” testimony and abandoned her gatekeeping role required by the Daubert Rule and Rule 702.

 

{iii) In United States v. Machado-Erazo, 901 F.3d 326 (D.C. Cir. 2018). Circuit Judge Rogers issued a concurring opinion on the gatekeeping obligation under Rule 702 and government’s disclosure obligations under Rule 16(a)(1)(G). Judge Rogers pointed out that the district court’s ability to fulfill its gatekeeping obligations is related to the government’s compliance with Rule 16. (Id., at 340) ”The consequence pertinent here is that the government’s conduct interfered with the district court’s ability to fulfill its gatekeeping role under the Daubert Rule and Rule 702. It hampered the district court in assessing with any measure of certainty whether the expert’s testimony would be reliable.” (Id., at 341)

 

As a senior district judge, Judge Granade certainly knew what Rule 16, Rule 702, and the Daubert Rule entailed. She also knew that the Government’s noncompliance with Rule 16 was intentional, calculated to ambush the defense with surprise expert testimony. Instead of sanctioning the Government’s misconduct as the district court in Moya did, Judge Granade sided with the Government, admitted PMDDAP as “lay” testimony and took away the Daubert and Rule 702 burdens from herself. Indubitably Judge Granade deliberately committed this egregious trial error.

 

Indeed during our criminal proceedings, Judge Granade, on numerous occasions and at different stages of the trial, abandoned her gatekeeping role. From time to time, Judge Granade manipulated 1rial evidence to help the prosecution by (1) purposely conflating expert testimony with lay testimony (such as the admission of PMDDAP), (2) expanding her ruling on disputed expert testimony to cover lay testimony (discussed later), and (3) failure to make Daubert determination and failure to comply with the Daubert Rule.

 

Admission of PMDDAP expert testimony without prior disclosure violated defendants’ due process rights.

 

In United States v. Moya (748 Fed. Appx.. 819 (10th Cir. 2018)), defendant Moya did not receive the notice of expert testimony until one week prior to trial. The Tenth Circuit admonished that one of the Wicker inquiry requirements was to evaluate “the extent of prejudice to the party that sought the disclosure.” It ruled that the district court correctly excluded government expert witness testimony as Moya would be prejudiced by having to prepare to cross-examine an expert witness on such a short notice. (Id.. at 823)

 

In United States v. Holmes, 670 F.3d 586 (4th Cir. 2012), the defendant informed the government of his intention to call an expert witness. The government asserted that the notice was untimely, having made “Friday afternoon, three days before the trial and before a weekend,” and that it did not have sufficient time to investigate the proposed testimony, or the defense expert witness’s qualifications and opinions, or locate expert witnesses to present counter testimony: the district court agreed and excluded defendant’s expert testimony. (Id., at 597)

 

In ‘Freund v. Fleetwood Entersl, Inc., 956 F-2d 354, 358 (1st Cir. 1992), the First Circuit held that the district court properly excluded plaintiffs expert testimony where substance of that testimony was not made known to defendants until the middle of the trial, and that had [defendants] known about the [expert] testimony sooner, they might well have decided to counter it through cross-examination or other expert testimony.”

 

Indeed at the instant trial we did not know PMDDAP as expert testimony until Day 13 of the trial on the day of its presentation. Defense counsel expressly objected to its admission citing that the defendants could not meaningfully cross-exam Dr. Kevin McCash. Nor could the defense team have sufficient time to investigate the relevance and reliability of proposed PMDDAP testimony, or locate an expert witness to present counter testimony.

 

In Gholson v. Estelle, 675 F.2d 734 (5th Cir. 1982), the Fifth Circuit held that it was a due process violation when the defendants were confronted and surprised by doctors’ expert testimony at the punishment of their trials. It pointed out that defendants’ ability to question or challenge the veracity of the very testimony that served as the groundwork for their being condemned to die was inhibited.