Metropolitan News-Enterprise


Thursday, December 7, 2017


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Conviction of Ex-Doctor, ‘Candy Man,’ Who Overprescribed Opiates Affirmed

Ninth Circuit: Expert Who Testified Practices Were ‘Outside Usual Course of Medical Practice,’ ‘Without a Legitimate Purpose,’ Did Not Render Impermissible Legal Conclusions


By a MetNews Staff Writer


The Ninth U.S. Court of Appeals yesterday affirmed the conviction of a former medical doctor—known to patients as the “Candy Man”—on 79 counts of unlawful distribution of controlled prescription drugs, rejecting his contention that a government witness voiced a legal conclusion, in violation of federal rules of evidence.

“We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion,” Circuit Judge Morgan Christen said in a published opinion.

Appellant Julio Gabriel Diaz—who, between 2008 and 2011, prescribed more than 5 million opiate pills—was sentenced on Dec. 7, 2015, by District Judge Cormac J. Carney of the Central District of California, to 27.25 years in prison. In state administrative proceedings, he was stripped of his medical license on Nov. 2, 2012.

In an unpublished memorandum opinion yesterday, signed by Christen and Circuit Judges Andrew J. Kleinfeld and Susan P. Graber, the case was remanded for resentencing. The government acknowledged that Carney imposed a greater sentence on two of the counts than was authorized, and the panel found drug quantity calculations in the pre-sentencing report to be indecipherable.

Various other contentions were rejected in that opinion.

Expert Witness

The expert witness was Dr. Rick Chavez. He testified that prescriptions for pain killers that Diaz wrote, at his Santa Barbara clinic, were “outside the usual course of medical practice” and “without a legitimate purpose.”

Although those phrases do relate to legal standards, Chavez was not rendering a legal conclusion, Christen said. He explained that “it is sometimes impossible for an expert lo render his or her opinion on a subject without resorting to language that recurs in the applicable legal standard.”

Chavez used the phrases, the jurist observed, “in their ordinary, everyday sense, adding:

“Dr. Chavez did not substitute his judgment for the jury’s; he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community.

“In the context of the case, Dr. Chavez’s testimony was no doubt persuasive to the jury, but that is because it was uncontradicted and consistent with a great deal of other uncontradicted evidence. Diaz did not proffer a competing expert opinion. Had he presented such testimony, it would have been for the jury to weigh the experts’ competing opinions concerning the medically acceptable standard for prescribing controlled substances to the people who sought them from Diaz.”

Prescriptions for Addicts

Some of Diaz’s patients were taking in excess of 60 tablets per day. Some of those for whom he prescribed the opiates were known addicts, and it was alleged that her supplied some prescriptions to women in exchange for sex.

Although an Associated Press story, at the time of Diaz’s conviction, said prosecutors were alleging that 20 deaths of patients were tied to the prescriptions, other sources pinned the number at 12, with 11 of them stemming from overdoses.

Diaz objected, on appeal, to reference at trial to the uncharged deaths. The judges responded in the memorandum opinion:

“The use of such evidence here is troubling, especially because the cause of one of the deaths was, as the government concedes, cancer, not drug abuse. Moreover, although some of the patient deaths could have been relevant to prove intent, knowledge, and absence of mistakes…, testimony—accompanied by photographs—of the people whose lives were ruined, allegedly by the easy access to drugs facilitated by Diaz, was of ‘extremely limited’ probative value.”

However, the judges reasoned, “given the voluminous evidence arrayed against Diaz, any error was harmless.”

The opinions came in U.S.A. v. Diaz, No. 15-50538.


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