Prosecutor seeks to bar testimony at trial of doc accused of over-prescribing painkillers
http://helenair.com/news/state-and-regional/article_fd60569f-3af9-5083-a3a0-b469a9c26cb0.html
HAMILTON — Ravalli Deputy County Attorney Thorin Geist is asking a district court judge to prohibit physician Chris Christensen from presenting certain testimony or evidence at his upcoming trial on 400 felony counts, including negligent homicide.
In court documents, Geist asks Judge Jeffrey Langton to issue five orders in connection with the case:
• To prevent Christensen from presenting testimony from former patients regarding their medical experiences;
• To prohibit Dr. Mark Ibsen of Helena from testifying on matters that happened after April 1, 2014;
• To exclude testimony regarding an alleged extra-marital affair;
• To preclude Christensen from presenting information regarding jury nullification;
• To caution Christensen regarding his right against self-incrimination.
Christensen was arrested in August 2015 on charges that he allegedly provided hundreds of illegal prescriptions for large amounts of painkillers to his patients, including two who died from overdoses. His trial is set to begin on Oct. 19 before Judge Langton, and is expected to last 18 days.
Geist declined to comment on the case this week, citing the upcoming trial. But in court documents, he outlined the reasons behind his requests.
He wrote that Christensen has identified 28 former patients who would testify at the trial, with 21 of those being people he treated for “chronic pain syndrome” and for whom he prescribed controlled substances, including painkillers. The other seven patients were treated for “non-pain” conditions.
“None of the former patients were present when the defendant prescribed dangerous drugs to the victims in this case,” Geist wrote. “… The permissible scope of the former patient testimony is exceptionally narrow, and potentially inadmissible in its entirety as not relevant to the charged crimes and the victims in this case.”
Christensen’s attorney, Josh Van de Wetering, also declined to comment other than to say it will be “an interesting, challenging trial” that he’s eager to begin. However, he did address Geist’s motion in court documents filed Friday afternoon.
Van de Wetering, a former federal prosecutor turned defense attorney, opposes the first three motions, doesn’t object to the state’s request regarding jury nullification, and believes the caution against self-incrimination is “unnecessary and probably improper.”
The purpose of the testimony from former patients is to counter evidence from the state that suggests Christensen’s conduct was “so grossly negligent that he caused the death of two individuals,” or that he knowingly created a substantial risk of death or injury to his patients, or that his prescribing practice was far enough outside the norm that it constituted distribution of dangerous drugs in violation of the law, Van de Wetering wrote.
“They are expected to testify that Dr. Christensen was careful, knowledgeable, and caring,” Van de Wetering wrote. “They will testify that he did not encourage opiate use, but offered it as an alternative if appropriate.
“The relevance of their testimony is that it tends to suggest that Dr. Christensen is generally careful and therefore any error he might have made is just that: an error and not a crime.”
In regards to Ibsen, Geist writes that the doctor is being called as an expert witness who will testify regarding treatment he provided to 21 patients he took over from Christensen after April 1, 2014, which is the day a search warrant was executed at Christensen’s family medicine and urgent care clinic. Geist says that none of the patients was present when Christensen committed the alleged crimes.
“As such, Dr. Ibsen’s treatment of these patients is irrelevant to the issue of whether the defendant’s prescription practices were within the standard of a professional practice as applied to the individual victims in this case,” Geist wrote. “Their testimony is irrelevant and should therefore be excluded.”
Ibsen himself came under scrutiny by the state’s Board of Medical Examiners after a 2013 investigation began into allegations that he over-prescribed painkillers, and he shuttered his practice in 2015. He’s a longtime critic of how the federal Drug Enforcement Agency and the overall medical establishment have treated opioid addiction.
Van de Wetering writes that Ibsen’s testimony is relevant because he can can address whether Christensen’s prescription levels were appropriate for patients dealing with chronic pain, and should be admitted.
Geist also wants both prosecutors and the defense to be barred from presenting testimony related to an alleged extra-marital affair between Christensen and a former physician’s assistant he employed more than 25 years ago. Geist wrote that Christensen denies the affair ever took place, and Geist adds that the alleged affair is “entirely irrelevant” to the allegations in this case. The woman was identified as a witness for the state.
“Even if it were relevant, the danger of unfair prejudice to either party is substantial,” Geist wrote.
Van de Wetering agreed in part, noting that “This is a trial about a physician’s prescribing practices, not about anything related to his character.”
However, he said the former employee expressed a romantic interest in Christensen, which he rejected, and Van de Wetering expects to use that information in a cross-examination of the employee as “evidence of bias and motive to fabricate.”
The order prohibiting discussion of “jury nullification” asks that Christensen’s attorney be barred from explaining to the jury that it could return a “not guilty” verdict despite its belief that Christensen is guilty — in effect, nullifying a law the jury believes is either immoral or wrongly applied to a defendant.
Van de Wetering said he isn’t planning on raising that issue.
Giest also wants Christensen to be put on notice that if he testifies at trial, he won’t be able to plead the Fifth Amendment against self-incrimination. Geist writes that Christensen is facing potential charges in U.S. District Court for distribution of dangerous drugs and other related offenses.
“For example, during a Mirandized interview on April 1, 2014, the defendant admitted to taking prescription medication back from his former patients and to re-dispensing them and/or destroying them in violation of federal law,” Geist wrote. “The District Court should caution the defendant that he will not be able to assert his right against self-incrimination in the event that he elects to testify at trial.”
Van de Wetering called that statement a threat of federal prosecution from Geist “under the guise of protecting the Defendant.” He notes that while the federal government can bring charges arising from facts brought out in state court, even if a person has been convicted or acquitted, that it typically doesn’t do so.
“Nothing of the kind is needed or desired, or even really proper,” Van de Wetering wrote. “… Unless the state has information it is not sharing, this motion should be rejected. If the state does have such information, it should be required to share it.”
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