United States v. David Ming Pon
963 F.3d 1207
| 11th Cir. | 2020Background
- Dr. David Pon, an ophthalmologist, used a low‑power micropulse laser technique he called “subthreshold micropulse photostimulation” to treat patients he diagnosed with wet age‑related macular degeneration (WMD) but set the laser at settings that did not produce the scars characteristic of laser photocoagulation.
- Pon billed Medicare under code 67220 (laser photocoagulation for WMD) for those laser sessions and associated diagnostic tests, receiving roughly $1,200 per patient visit; his billing for 67220 was a dramatic outlier compared to peers.
- A government review (Agent Jurs) and expert Dr. Thomas Friberg examined ~500 patient image files and concluded only ~1–2% had macular degeneration; many patients showed no evidence of WMD or of scarring that would result from true photocoagulation.
- A 20‑count indictment charged Pon with health‑care fraud under 18 U.S.C. § 1347 for submitting false Medicare claims for eleven named patients; a jury convicted him on all counts and the district court sentenced him to 121 months (after an 18‑level loss enhancement based on ~ $7M loss).
- On appeal Pon argued (1) the district court erred under Daubert/Rule 702 by excluding his expert’s opinion that subthreshold micropulse treatment can close feeder vessels without scarring; (2) the court abused its discretion by admitting rebuttal evidence about billing for patient J.L.’s blind left eye and by partially denying Pon’s surrebuttal; and (3) sentencing errors as to loss calculation and sentence structure.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Pon) | Held |
|---|---|---|---|
| Admissibility of defense expert (Daubert/Rule 702) | Exclude opinion that subthreshold micropulse photostimulation treats WMD because the theory is untested, not generally accepted, and conjectural | Dorin may explain laser principles and testify that subthreshold micropulse can treat WMD without scarring | Court did not abuse discretion: excluded the specific treatment opinion as unreliable under Daubert (untested, not generally accepted, analytical gap) but allowed general laser testimony |
| Rebuttal evidence re: billing for J.L.’s blind left eye | Allowed rebuttal to counter impression from J.L.’s testimony that Pon treated gratuitously; spreadsheet showed 52 billings for blind eye | Admission was improper rebuttal and limiting surrebuttal denied Pon a fair opportunity to explain the billing rationale (Sixth Amendment right to present a defense) | Admission of rebuttal and partial limitation of surrebuttal were within court’s discretion; even assuming constitutional error, any limitation was harmless beyond a reasonable doubt given overwhelming evidence of guilt |
| Loss amount for Guidelines (preponderance vs. reliability) | Loss derived from patient‑by‑patient Medicare claims for those Dr. Friberg found lacked WMD; supported ≈ $6.97M | District court relied on uncertain records and should not have applied the 18‑level enhancement | Court affirmed: district court’s estimate based on Agent Jurs’ spreadsheet and testimony was reasonable and not clearly erroneous (preponderance standard applies) |
| Sentence structure when guideline minimum exceeds statutory max per count | Guidelines called for 121–151 months; district court imposed concurrent 121 months on each count | Pon did not contest concurrent structure below; argued sentence otherwise | Vacated sentence form and remanded: because statutory max per count is 120 months, §5G1.2(d) requires some consecutive time to reach the guideline range; remand for limited resentencing to adjust structure |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (district court gatekeeping factors for expert admissibility)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) (courts may exclude expert opinion when there is an analytical gap between data and conclusion)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony; district court has considerable leeway)
- United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc) (Rule 702 framework and appellate review of expert testimony)
- United States v. Brown, 415 F.3d 1257 (11th Cir. 2005) (appellate deference to district court Daubert rulings)
- Neder v. United States, 527 U.S. 1 (1999) (applicability of harmless‑error analysis to omitted or erroneous jury issues)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error reversible unless harmless beyond a reasonable doubt)
- United States v. Roy, 855 F.3d 1133 (11th Cir. 2017) (discussion of harmless‑error principles and appellate review)
- United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003) (interpretation of U.S.S.G. § 5G1.2(d) requiring consecutive sentences to reach guideline range)