Judge David Bury
United States versus Jeri Hassman CR-03-0675 TUC-DCB (NFF)
Paul K. Charlton United States Attorney for the District of Arizona
Beverly K. Anderson and Gerard M. Guerin, Assistant United States Attorneys
The United States presented a Motion to continue trial in response to a request for a status conference. This is the second request to continue trial. The text of this Motion was presented to Dr. Hassman at 5:15 PM on Monday, June 30th. This caused defendant to have to scramble to collect evidence to respond to the allegations in the Motion in time for the hearing at approximately 11:30 AM the following morning.
The government's Motion states that Dr. Hassman specializes exclusively in the area of pain management. [This is incorrect. Dr. Hassman does physical medicine and sports medicine, and her pain practice constituted approximately 20% of her practice.]
The Motion states that between July 12th, 2001 and July 31st, 2001, the Drug Enforcement Administration (DEA) received complaints from Tucson area pharmacists regarding the defendant's prescribing practices. DEA initiated investigation which revealed the following, according to the Motion:
"1. Defendant Hassman was prescribing exorbitant quantities of controlled substances to her patients." Several examples were given. Patient KS was receiving an average of 161 dosage units per day, JR was receiving 162 dosage units per day, and patient SC was receiving about 352 dosage units per day. [The appropriate dose of opioid medication is determined by titrating to effect. Therefore, the number of dosage units is no longer considered relevant. However, it does look very impressive, especially when one multiplies by number of days as the government does here stating that 352 dosage units per day constitutes 2,640 dosage units per week or 10,560 dosage units per month.]
"2. Defendant Hassman was made aware that her patients were in all likelihood diverting or using the narcotics for illegitimate purposes, however, she continued to prescribe controlled substances for these patients.
"Again based on what was discovered in the investigation, DEA made the preliminary finding that Defendant Hassman was responsible for the diversion of large quantities of controlled substances and violation of 21 USC Section 841(a). DEA also believed there was a substantial likelihood that she would continue to divert controlled substances, so on November 1st, 2002, DEA suspended defendant's certificate of registration, thereby temporarily suspending her ability to prescribe. Hearing on the DEA Ordered to Show Cause and Immediate Suspension of Registration was scheduled to begin April 29th, 2002, however, both DEA and Defendant Hassman stipulated to a stay of the administrative hearing pending disposition of the federal charges. Defendant Hassman's DEA registration will remain suspended until resolution of the administrative proceedings. Bates Butler represents the defendant in these proceedings."
[Dr. Hassman has stated that she would not prescribe for a patient if she suspected diversion; in fact, she discharged some 35 patients from her practice in a year because of evidence of lack of cooperation or truthfulness.]
On March 26th, 2003, the defendant was indicted on 67 counts of illegal distribution of a controlled substance [one count for each prescription for each of six patients, two of whom were actually undercover agents] and 41 counts of healthcare fraud. At that time lead counsel for the government was Assistant United States Attorney Russell Marsh who was assisted by Beverly Anderson. AUSA Marsh left the U.S. Attorney's office in May, 2003, to practice law as an ASUA in the District of Nevada and since that time Beverly Anderson and Gerard Guerin have reevaluated the case including the choice of expert witnesses. AUSA Marsh had retained an expert to evaluate the case and render opinions regarding the prescribing practices of the defendant, and the same expert had been retained by the DEA to testify on its behalf in the administrative matter. The new government counsel has made the decision "not to use this individual at trial and is in the process of obtaining an expert witness."
[This witness was apparently Dr. Bradford Hare. It was his opinion that the government used to shut down Dr. Hassman's pain practice and to bring the indictment, but apparently the government no longer finds his testimony to be sufficiently credible. Dr. Hare was the witness in the first trial of Dr. Robert Weitzel of Utah, who was charged with murder and convicted of negligent homicide and manslaughter in the deaths of five patients on a geropsychiatric unit in Utah. These patients or their families on their behalf had refused aggressive medical care such as transfer to an intensive care unit, use of antibiotics, or ventilators and were receiving comfort care including opioid analgesia. All were quite elderly, and their medical conditions had deteriorated so that death was imminent especially without aggressive medical treatment. Dr. Weitzel, after spending some months in prison, filed a motion for a new trial when he discovered that the government had concealed exculpatory evidence by the expert witness that Dr. Hare himself had recommended, Dr. Perry Fine. In a new trial, Dr. Weitzel was acquitted on all counts after very brief deliberations by the jury.]
[It appears that the government fears that the expert whose testimony was previously discredited might not help them prevail in the Hassman case.]
The government counsel claimed that before the discussion in early June, it was the belief by both parties that trial would proceed in October of 2003. "It was only until defense counsel filed a motion requesting a status conference that the July, 2003 trial date was represented by defense counsel as being realistic."
"The government requested continuance until sometime between late January and March, 2004. The defendant will in no way be prejudiced by this continuance. The DEA administrative hearing regarding the status of her license to prescribe narcotic drugs can proceed in the interim as can the BOMEX proceeding. Defendant will most likely claim that her practice is effectively shut down due to the pending criminal case. That, however, is untrue, since the status of the criminal case has no bearing on the defendant's DEA registration."
For these reasons the government requested the court to continue the trial until sometime in early 2004. It was anticipated the trial would take three to four weeks and that the continuance would allow the court to readjust its schedule to prepare for a trial of such long duration.
Jude Bury opened the proceedings by noting that the trial date of July 29th had already been continued from May 28th and asked counsel to address the issue of readiness for trial.
Bates Butler spoke on behalf of the defendant. He began by addressing some of the statements made in the government's Motion. He stated that Dr. Hassman does not specialize exclusively in pain management.
He noted that although the proceedings began in July of 2001, disclosures to the FBI began in 1998. This better reflects the length of time that the government has had to investigate the case.
He addressed the three patients referred to as receiving "exorbitant" amounts of medication. He stated that although this was unrelated to whether or not the government was ready for trial, it was incumbent upon him to tell the court that the two patients who still reside in Tucson are still receiving the same or increased dosages of opioids and that he had obtained physicians' and pharmacy records to document this. The third patient who now lives elsewhere, probably California, received the same dosage from other physicians during the two months that he continued to live in Tucson.
The Judge interrupted to say that he was not to be persuaded about the defendant's guilt or innocence at this time, but he wanted to hear about whether justice would be served by the trial date. He understood that the office practice was suffering greatly but the government stated that the case was complex, there had been a change of counsel, and they wanted to change their expert. He directed the parties to talk about the trial date.
Mr. Butler stated that Beverly Anderson had been assisting in the case since May, 2002, soon after the search warrant was issued and Dr. Hassman's office was raided. The government was ready to go with the expert whom it had used for months and the same one who had been used in the proceedings to suspend defendant's registration. Now the government wants a new expert. It wants to change horses and wants Dr. Hassman to give up her right to a speedy trial. He also stated that the government now says that it's considering the case complex. [This argument about complexity was not raised previously in the proper format at the appropriate time as a reason for continuance.]
Mr. Butler stated that quantity is not the same thing as complexity. Both sides have exchanged about 1,000 pages of disclosure, and everything that has been submitted the government has had since the end of January, except for one report from Dr. Jennifer Schneider, which was prepared for the Arizona Medical Board in May and which he assumes the government has had since then. The government has had the defendant's case since early January as a result of the parallel proceedings. It was ready to present to the grand jury; they could have changed the expert at that point. Mr. Butler stated that he assumed that arrangements could be made with the attorney's office in New Mexico [or was it Nevada?] to have Mr. Marsh return for a time to work on this case.
Mr. Bates said that the issue of disclosure had not yet been resolved. There were 150 surreptitious tape-recordings primarily from one "patient" [undercover agent]. The defense, however, does not yet have transcripts. Since serving search warrants in May, the government had interviewed both his client and her staff.
It appears as though the government has delayed disclosure and so now is coming before the court and saying that it's not ready for trial because it hasn't fulfilled its disclosure requirements. The court should set a deadline, for example, July 15th, and if the government does not disclose its evidence by that time, it should be precluded from using that evidence at trial. Mr. Bates emphasized that the defense has given the government everything and there has been plenty of time for the government to decide to indict.
Mr. Bates then addressed the claim that a delay would not prejudice the defendant in any way. He noted that since the indictment four insurance companies have removed Dr. Hassman from their panels as a direct result of the indictment. Additionally, the medical board has stayed the proceedings for restoring her registration pending the resolution of the criminal matter. Contrary to the claim that delay will not prejudice his client because the administrative process can go forward, he has been told by the DEA attorney that no decision can be made. The defendant would be free to spend a huge amount of money on the hearing and produce still more material that the government can continue to take advantage of in the parallel proceedings, but the defendant still will get nowhere because no decision can be made until after the criminal case is resolved.
Mr. Bates also corrected the government's allegation that he represents Dr. Hassman in the board proceeding.
Mr. Butler continued that although there are 1,000 pages of evidence, the government knew that it was indicting a professional, not a typical defendant who can wait forever for a trial. They knew that she was trying to keep her medical practice alive. He had informed Ms. Anderson that if the trial were postponed until the next year the government would win without proving anything because the defendant would be bankrupt at that time and thus the government would win regardless of the outcome of the criminal process. He stated that the defense had agreed to the first continuance but could not agree to more than 60 days. His client has already suffered irretrievable harm which will get worse if the case is continued until the government decides that it's ready. He asked the court to order the government to complete disclosure on or before July 15th and to exclude from evidence anything that is not disclosed prior to that time.
The Judge said he had two questions. Both sides had agreed that a trial would last three to four weeks and wondered whether any witnesses would be unavailable because of summertime. Mr. Butler stated that he was not aware of difficulty with witness availability except that one witness has a family members who is dying of cancer and does not know at what point this family member would die.
Beverly Anderson then spoke for the U.S. Attorney's office and acknowledged it was true that she had had the case since last May, but stated the DEA proceeding is handled from Washington, D.C., and so she did not have access to all the records in that case. She said she got two boxes from Bates Butler last week and that that was the only disclosure that she had received from the defense.
Ms. Anderson stated that Russell Marsh had been the lead counsel, that she herself had joined the U.S. Attorney's office last March and had not been making decisions in the case, and that she and Gerard Guerin had been evaluating the case since Mr. Marsh left. She stated that no expert witness had been disclosed although one had been disclosed in the DEA proceeding, which she claimed was completely separate.
"We believe that another expert would be suitable for the case." She said that they had told Mr. Butler that and that they were being honest.
She emphasized that the DEA and licensure board actions were completely separate from the actions of the U.S. Attorney's office and asserted again that those could move ahead independently.
She felt that a stay was not unreasonable because of the complexity of the case. She claimed that the first motion for continuance did indicate that it was a complex case because of the voluminous disclosure and that the government believed it was reasonable to proceed to trial in January or March, 2004, because of the complexity and the large amount of disclosure and the back and forth that was still needed and that if the defendant wished to proceed with the administrative hearing nothing was preventing her from doing that.
The Judge stated that the indictment was filed against a professional on March 26th, 2003, and the government knew "despite the culture," of the 70-day speedy-trial rule, and asked why can't the government get ready? The trial is in late July, and the government had had time between March and July to prepare. He is searching for a reason why this could not happen. [The "culture" refers to the frequent postponement of trials in this court.]
Ms. Anderson continued that she understood the court's concern.
[The Judge made a telephone call [apparently regarding scheduling.] Then the Judge stated that the trial would be scheduled for July 29th and that the government's Motion for Continuance was denied without prejudice-thus, the government could file a third request to continue, for a "compelling" reason. The court would reserve three to four weeks for the trial and would order that, to avoid the flurry of last-minute disclosure, all disclosure would have to be provided on or before July 15th of any evidence that was to be used at trial. He reiterated that the case would go to trial on July 29th unless the government could come up with a compelling reason why not.
Jane M. Orient, M.D.