United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
January 30, 2019, the defendant, Muhammed Samer
Nasher-Alneam, M.D., appeared in person and by counsel,
Michael Hissam and Isaac Forman and the United States
appeared by C. Haley Bunn and Jennifer Rada Herrald,
Assistant United States Attorneys, for a pre-trial motions
hearing in the above criminal matter.
before the court is the defendant's Motion in Limine
Concerning Expert Testimony. ECF No. 68. For the reasons that
follow, the defendant's motion is
motion, the defendant requests the entry of an Order limiting
the scope of expert testimony, by both sides, to Dr.
Nasher's compliance with applicable and identifiable
standards of care. Id. The defendant seeks to
exclude expert witness evidence of whether any prescription
was issued “not for legitimate purposes in the usual
course of medical practice, ” or “beyond the
bounds of medicine.” Id. The defendant's
primary argument in support of its motion is that such
testimony would amount to improper opinion evidence that
states a legal standard or draws a legal conclusion by
applying law to the facts. See id. As previously
mentioned, the defendant concedes that expert witness
testimony that opines on a physician's compliance with
the applicable standards of care should be admissible.
response, the government argues that the experts disclosed by
the government should be permitted to opine as to whether the
defendant prescribed controlled substances not for legitimate
medical purposes and outside the bounds of medical practice.
ECF No. 74. The government argues the experts should be
permitted to testify regarding the “red flags” in
prescribing controlled substances, as well as objective
standards or good faith in prescribing, citing in support
United States v. Alerre, 430 F.3d 681, 686 (4th Cir.
2005), and United States v. Hurwitz, 459 F.3d 463,
479-80 (4th Cir. 2006). Furthermore, citing in support
United States v. McIver, 470 F.3d 550, 562 (4th Cir.
2006), the government argues that such testimony does not
constitute “ultimate issue” testimony. The
government explains that “[w]hile standards of care are
relevant to whether a physician illegally prescribed
controlled substances, they are not the only issue to be
considered by the jury.” The government cites to
Alerre, 430 F.3d at 686, which stands for the
proposition that evidence of a physician departing from
“accepted professional standards” is relevant
evidence in criminal prosecution. The government also cites
to United States v. Tran Trong Cuong, 18
F.3d 1132, 1137-38 (4th Cir. 1994), which stands for the
proposition that a criminal prosecution for illegal
distribution by a physician requires more than violation of
civil standard of care.
to the court's analysis, Federal Rule of Evidence 702
allows an expert to testify as to his or her opinions when:
(1) it is based on sufficient facts or date; (2) it is the
product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to
the facts of the case. Rule 704(a) allows the admission of
expert testimony that embraces an ultimate issue to be
decided by the trier of fact. Fed.R.Evid. 704(a). In other
words, questions of fact that are committed to resolution by
the jury are the proper subject of opinion testimony.
Id. “However, opinion testimony that states a
legal standard or draws a legal conclusion by applying law to
the facts is generally inadmissible.” McIver,
470 F.3d at 561-62 (citing United States v. Barile,
286 F.3d 749, 760 (4th Cir. 2002); Okland Oil Co. v.
Conoco, Inc., 144 F.3d 1308, 1328 (10th Cir. 1998)).
“We identify improper legal conclusions by determining
whether “the terms used by the witness have a separate,
distinct and specialized meaning in the law different from
that present in the vernacular.” McIver, 470
F.3d at 562.
support of its response in opposition, the government cites
to United States v. Boccone, 556 F.App'x. 215
(4th Cir. 2014), where the defendants' underlying charges
included conspiracy to distribute controlled substances,
under 21 U.S.C. § 846, and distribution of controlled
substances, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. The Boccone court pointed out that
“[i]n order to convict a licensed medical provider of
unlawful distribution of controlled substances, the
government must prove the provider's
“‘actions were not for legitimate medical
purposes in the usual course of his professional medical
practice or [were] beyond the bounds of medical
practice.'” Id. at 225 ((citing United
States v. Singh, 54 F.3d 1182, 1187 (4th Cir.
1995)(quoting Tran Trong Cuong, 18 F.3d at 1141.
Based upon this burden of proof, the Bocconoe court
concluded that “expert testimony regarding whether
treatment in [a] case was beyond the bounds of medical
practice is relevant to the counts of conviction against [the
defendants].” Id. Furthermore, the
Bocconoe court held that:
[The Fourth Circuit] has observed that “opinion
testimony that states a legal standard or draws a legal
conclusion by applying law to the facts is generally
inadmissible.” Nevertheless, an expert may testify
that treatment was “outside the bounds of ...
professional medical practice, ” or that
“treatment of certain patients was either illegitimate
or inappropriate.” Such language “falls
within the limited vernacular that is available to express
whether a doctor acted outside the bounds of his professional
Boccone, 556 Fed.Appx. at 226 (emphasis
added) (citing McIver, 470 F.3d at 562)
(internal citations omitted).
court finds that the government's cited case law in their
response in opposition is controlling and that the expert
witnesses may opine whether the defendant's treatment was
outside the bounds of professional medical practice, or that
treatment of certain patients was either illegitimate or
inappropriate. See Boccone, 556 Fed.Appx. 215.
Therefore, the defendant's Motion in Limine Concerning
Expert Testimony is DENIED.
Clerk is directed to send a copy of this Memorandum Opinion
and Order to counsel of record, to the United States Marshal
for the Southern District of West ...