United States v. Ferris
5:18-cr-00159
W.D. Okla.Sep 3, 2019Background
- Defendants Dr. James M. Ferris and pharmacist Katherine Dossey are charged in a 103‑count indictment for distributing controlled substances outside the usual course of professional practice (21 U.S.C. § 841(a)(1)) and Medicare fraud (18 U.S.C. § 1347).
- The Government intends to call medical experts to opine that defendants’ conduct fell outside the usual course of professional practice and to reference relevant statutory and regulatory standards governing physicians and pharmacists.
- Defendants moved in limine to bar any witness from testifying about or defining “the applicable law,” arguing such testimony would usurp the court/jury role and violate Rules 401–705 and 403.
- The motion focuses on whether expert testimony may reference legal standards (e.g., "usual course of professional practice" or regulatory provisions) or must be limited to factual or medical observations.
- The court evaluated Tenth Circuit precedent (notably United States v. Schneider and Specht) and other authority, balancing experts’ usefulness to jurors against the prohibition on witnesses giving pure legal conclusions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert witnesses may opine that defendants’ conduct fell outside the usual course of professional practice and reference statutory/regulatory standards | Experts may explain medical facts and apply statutory/regulatory standards to facts to assist the jury | Such testimony would define the law, usurp the court/jury, and improperly give legal conclusions | Allowed: experts may testify about facts and apply law to facts; may reference statutes/regulations but may not give pure legal conclusions or tell jury the verdict |
| Whether expert testimony referring to legal terms is per se inadmissible under Specht | Government: experts can refer to law in expressing opinions and apply legal terms when necessary | Defendants: Specht bars witnesses from stating legal conclusions or testifying about applicable law | Court: distinguishes Specht (legal expert testimony) and permits medical experts to use legal terms and apply law to facts; forbids broad legal discursions |
| Whether such testimony is excludable under Federal Rule of Evidence 403 as unfairly prejudicial | Government: probative value of medical expert testimony on standards outweighs prejudice; jurors need medical context | Defendants: referencing law/legal standards risks unfairly influencing jurors | Denied: probative value not substantially outweighed by unfair prejudice; Rule 403 exclusion is extraordinary and not warranted |
| Whether experts may testify about defendants’ state of mind or ultimate issue | Government: experts may testify to observations and reach ultimate-issue opinions without telling jury what verdict to reach | Defendants: such testimony improperly addresses the ultimate legal question and mens rea | Court: consistent with Rule 704, experts may offer ultimate-issue opinions so long as they do not instruct jury on result or offer pure legal conclusions |
Key Cases Cited
- United States v. Moore, 423 U.S. 122 (Sup. Ct. 1975) (registered physicians may violate § 841 when prescribing outside usual professional practice)
- Luce v. United States, 469 U.S. 38 (Sup. Ct. 1984) (in limine rulings are within district court’s trial-management authority and are revisable)
- United States v. Schneider, 704 F.3d 1287 (10th Cir. 2013) (experts may testify on ultimate issues and reference law when applying it to facts; may not tell jury what result to reach)
- Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) (attorney-witnesses may not give legal conclusions; distinguishes legal-expert testimony from other experts)
- United States v. Bedford, 536 F.3d 1148 (10th Cir. 2008) (experts may refer to the law in expressing their opinions)
- United States v. Betancourt, 734 F.2d 750 (11th Cir. 1984) (medical experts’ testimony on medical practice standards admissible and relevant to jury’s determination)