Metropolitan News-Enterprise


Friday, August 21, 2020


Page 1


Ninth Circuit:

Over-Prescriber of Drugs Wasn’t Prejudiced by Evidence of Deaths of Three Patients

Panel Says That Although the Charges Did Not Allude to the Persons Who Fatally Overdosed, the Information Was Brought Out for Proper Purposes


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the conviction of a physician’s assistant on 39 counts of unlawfully distributing prescription drugs, rejecting his contention that he was unduly prejudiced by references to three of his patients having died from overdoses when those deaths were not included in the charges.

The appellant, David Lague, was found guilty by a jury, after a two-week trial, on July 24, 2018 and was sentenced Dec. 19, 2018, by District Court Judge Haywood S. Gilliam Jr. of the Northern District of California to 10 years in prison.

League, who portrayed himself as a pain management specialist, practiced in San Leandro, located in Alameda County.

Affirmance of his conviction came in a memorandum opinion signed by Circuit Judge Ryan D. Nelson, Senior Circuit Judge J. Clifford Wallace, and District Court Judge James S. Gwin of the Northern District of Ohio, sitting by designation.

Oral Argument

Oral argument in the case was held in San Francisco on May 12, via teleconferencing. San Francisco attorney Leah Spero, arguing for League, told the judges:

“The guilt of the defendant must be based on the charged conduct, not on what else he has done. Mr. Lague’s trial violated these basic principles.

“Mr. Lague was charged with overprescribing five patients on 39 specific prescriptions.”

She asserted that bringing in the matter of the three deaths was “extremely prejudicial.”

Ninth Circuit Opinion

Disagreeing, the judges said:

 “The district court did not plainly err in allowing the government to cross-examine Lague about the uncharged overdose deaths of three of his former patients. The government properly introduced the overdose deaths for a non-character purpose: Lague’s knowledge and intent.”

The opinion cites Federal Rules of Evidence rule 404(b)(2) which permits admission of character evidence not “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character” but “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Also cited is Federal Rules of Evidence rule 401 which provides that “[e]vidence is relevant if…it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The opinion says that evidence of the three deaths “tended to show that Lague knew that similar prescriptions could lead to death.”

Federal Rule of Evidence rule 403 authorizes exclusion of evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative.” Yesterday’s opinion declares that evidence of the three deaths was not outweighed by the danger of unfair prejudice,” noting:

“The evidence, introduced on the government’s cross-examination of Lague, comprised only a small amount of Lague’s overall testimony and a small portion of the trial.”

Out-of-Court Statements

The opinion continues:

“The district court did not plainly err in allowing the government to admit the out-of-court statements about the clinic’s reputation. SL and JC were Lague’s former patients; their testimonies on how they first learned about the clinic were therefore relevant background information….CL’s testimony about his attempts to convince the clinic to stop prescribing opioids to his son was also relevant because Lague was charged with prescribing controlled substances to CL’s son, DL, outside the usual course of professional practice….Any prejudicial effect of the statements was minor because they were directed at the clinic more generally and made up only a few sentences during Hague’s nearly two-week trial.”

Evidence was introduced showing that among those prescribing opioids to 50 or more MediCare patients in 2015 and 2016, Lague was the highest prescriber. The opinion says:

“Given the overwhelming evidence of guilt admitted at trial, the complained-of prescription data did not seriously affect the fairness, integrity, or public reputation of the trial.”

Press Release

A press release issued by the U.S. Attorney for the Northern District of California on the day of sentencing recited:

“The evidence showed that, on two occasions, a patient asked Lague to double his prescriptions for powerful opioids so that the patient could sell the drugs.  Lague not only doubled the prescriptions, he also discussed with the patient how to do it in a way to avoid scrutiny by pharmacies or law enforcement.  Lague admitted at trial that he wrote false medical records of those visits in order to cover up what he was doing.  The evidence at trial also showed that Lague falsified records as to other patients as well, detailing exams that never took place and indicating that he had reviewed lab work that he never reviewed.”

Then-Acting U.S. Attorney Alex G. Tse (now a magistrate judge for the Northern District of California) was commenting:

“[W]e will not hesitate to charge and seek the conviction of those few medical professionals who have abandoned all pretense of providing patient care and instead use their power to prescribe for their own personal benefit.

“David Lague abused his power in this way. He showed no hesitation when asked to provide pills to someone who said he was going to sell them. There can be no greater abuse of the trust the community placed in him when it gave him the ability to prescribe.”

Tse added:

“Lague’s conduct put a stain on the reputations of the thousands of doctors and physician assistants who try their hardest daily to provide compassionate, quality medical care to the patients they see.

The case is U.S. v Lague, 18-0500

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