United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
matter is before the Court on a number of Motions in Limine
brought by both parties. [R. 98; R. 99; R. 100; R. 107.] As
explained further, and for various reasons, the motions will
be DENIED and GRANTED as
set forth below.
2016, a Federal Grand Jury returned an Indictment against
Anis Chalhoub, M.D. [R. 1.] Chalhoub was charged with one
count of health care fraud according to 18 U.S.C. §
1347. [Id.] The Government alleges that, from March
2007 through July 13, 2011, Chalhoub “implanted single
chamber and dual chamber permanent pacemakers in patients
without sufficient medical need or justification” and
“caused claims for medically unnecessary procedures and
services to be submitted to healthcare benefit
programs.” [Id. at 3.] Chalhoub allegedly
“knowingly and willfully” executed this scheme in
order to defraud “Medicaid and other government health
care benefit programs and private insurers.”
[Id. at 4.]
in limine are utilized to enable more expedient trial
practice by resolving particular evidentiary disputes.
See Bishop v. Children's Center for Developmental
Enrichment, 2011 WL 6752421, at * I (S.D. Ohio Dec. 23,
2011) (citations omitted). Many disputes are not capable of
being resolved at this stage, however, because it is
difficult to predict all the potential circumstances under
which evidence might become valuable and admissible. See
Luce v. United States, 469 U.S. 38, 41 (1984). Evidence
is only excluded at this stage if it is obviously
inadmissible on any potential ground. Jonasson v.
Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th
Cir. 1997). Unless that high standard is met, admissibility
questions should be postponed until trial, id.,
meaning that denial of a motion in limine does not preclude a
party from reasserting that motion during trial.
Luce, 469 U.S. at 41.
Chalhoub maintains some of the noticed evidence is
inadmissible under Federal Rule of Evidence 404(b). Pursuant
to that rule, “evidence of a crime, wrong, or other act
is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.” Fed.R.Evid. 404(b)(1).
Nevertheless, the rule goes on to note in relevant part that
such evidence “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b)(2). The Sixth Circuit has
adopted a three-part test that courts use to decide whether
to admit or exclude evidence under Rule 404(b):
First, the district court must decide whether there
is sufficient evidence that the other act in question
actually occurred. Second, if so, the district court
must decide whether the evidence of the other act is
probative of a material issue other than character.
Third, if the evidence is probative of a material
issue other than character, the district court must decide
whether the probative value of the evidence is substantially
outweighed by its potentially prejudicial effect.
United States v. Jenkins, 345 F.3d 928, 937 (6th
Cir. 2003) (emphasis in original); see also United States
v. Yu Qin, 688 F.3d 257, 262 (6th Cir. 2012).
Rule 404(b) “does not extend to evidence of acts which
are ‘intrinsic' to the charged offense.”
Fed.R.Evid. 404 advisory committee's note. Put another
way, “Rule 404(b) is not implicated when the other
crimes or wrongs evidence is part of a continuing pattern of
illegal activity.” United States v. Weinstock,
153 F.3d 272, 276 (6th Cir. 1998) (quoting United States
v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)).
Ultimately, this Court has broad discretion to determine
whether bad acts evidence is admissible. See, e.g.,
United States v. Stout, 509 F.3d 796, 799 (6th Cir.
preliminary matter, not all of these matters can be handled
at this stage. “Orders in limine which exclude broad
categories of evidence should rarely be employed. A better
practice is to deal with questions of admissibility of
evidence as they arise.” Sperberg v. Goodyear Tire
& Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).
Some motions to exclude evidence have been mooted and some
are not fully briefed. Also, this Court cannot rule on
hypothetical situations, which both parties rely on
significantly in their motions.
Chalhoub asks this Court to exclude “rumors about
excessive procedures.” [R. 98-1 at 8.] Rumors are
certainly inadmissible pursuant to the rule against hearsay.
Fed.R.Evid. 802. However, in their response, the Government
predictably argues that they are not seeking to admit any
rumors. This Court can't rule on hypothetical situations
and declines to issue a ruling here.
Chalhoub seeks to exclude testimony regarding an indicia of
fraud. [R. 98-1 at 14.] The United States responded that it
“does not intend to call a law enforcement witness for
this purpose, so this issue is moot.” [R. 104 at 13.]
Accordingly, this issue is denied as moot.
Dr. Chalhoub objects to categorizing the Executive Health
Resources (EHR) Review as a peer review. [R. 98-1 at 14.] Dr.
Chalhoub doesn't seem to argue that the review is
inadmissible, only that it shouldn't be categorized as a
peer review. [See id.] The Government responded that
it doesn't intend to present the review as a “peer
review” or a “professional ...