Case 2:08-cr-00427-MCE Document 309

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Law Offices of Ronald Richards & Associates, A.P.C.

Ronald Richards, Esq. Bar#176246
P.O. Box 11480
Beverly Hills, CA 90213
Telephone (310) 556-1001
Fax
(310) 277-3325
Attorneys for Ramanathan Prakash

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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CASE# CR Nos. 08-427-MCE

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Plaintiff

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DEFENDANT RAMANATHAN
PRAKASHS MOTION IN LIMINE TO
EXCLUDE THE TESTIMONY OF DR.
BARBARA NEYHART and REQUEST
FOR A DAUBERT HEARING

UNITED STATES OF AMERICA

v.
Ramanathan Prakash, Alexander Popov

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TRIAL DATE: MAY 31, 2011

Defendant

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The defendant, by and through his attorneys, Ronald Richards, Esq., of the Law

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Offices of Ronald Richards & Associates, hereby moves in limine to preclude the

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testimony of Dr. Barbara Neyhart on the following grounds:

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1. The testimony is not relevant to the crimes charges.

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2. It should be excluded under FRE 403 as impermissible FRE 404(a)(1)

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evidence.

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3. The defendant does not have the resources to retain a counter expert and since
it is too close to trial to do so.
4. A copy of the report was filed under seal as Exhibit A to this motion.

DATED: May 12, 2011

Respectfully submitted,

Law Offices of Ronald Richards & Associates, A.P.C.

/s Ronald Richards

__________________________

Ronald Richards, Esq.

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Attorneys for defendant

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Case 2:08-cr-00427-MCE Document 309

INTRODUCTION

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On May 3, 2011, at the late hour, defense counsel received a fax indicating that

there was evidence being reviewed by a medical doctor and that a new report would

arrive in the future, no date certain, but by the end of the week. It arrived at 900 p.m. on

May 6, 2011.

After reviewing the report, it is clear that its contents are not relevant to this trial

and is only being used to lower the standard of proof from that of proof beyond a

reasonable doubt to simple negligence. The report is critical of things Dr. Prakash did

and did not do, but does not assist the trier of fact one iota of proof whether or not he

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committed a violation of 18 U.S.C. 1347.

The report shows that Dr. Prakash personally reviewed the files which he was

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given and the experts ex post facto criticism is frankly irrelevant. This is not a medical

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board prosecution. It creates a collateral issue and the Court should exclude this

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testimony. Dr. Prakash was the medical director for six months and paid a small sum for

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a lot of work: $40,000.00.

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Dr. Prakash is charged in only two substantive counts, #12 and #13, showing one

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charge for $131.45 and one for $646.51. There are other defendants associated with that

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charge as well. His very limited involvement does not warrant an expert witness to make

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general medical observations about medical files he reviewed. He is not being charged

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with any crime that arises from his medical decisions. This purported paid testimony

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needs to be precluded.

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Finally, the patient files that were reviewed shed zero light as to the charges of

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this case. The Court really needs to have a pretrial hearing on this matter as the use of

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this expert is nothing less than sheer quack science as to a criminal case. These files

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have very little to do with Dr. Prakash and it is outrageous that he was not asked about

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these specific files prior to the expert reviewing them or given an opportunity to discuss

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his medical opinions with her. A hearing will clear this up for the Court.

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APPLICABLE LAW

Expert witness testimony and documentary evidence upon which such testimony

is based are subject to the rules of admissibility set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric v. Joiner, 522 U.S. 136

(1997); and Kumho Tire Company v. Carmichael, 526 U.S. 137 (1998). Daubert defined

the trial court's gatekeeper function and its obligation to exclude evidence based only on

subjective belief or unsupported speculation. Daubert set forth factors that should be

considered in analyzing the reliability of expert testimony. This non-exhaustive list of

factors, Id. at 593-94, represents a general framework by which the reliability of expert

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testimony can be judged. The Daubert factors are: 1) whether the expert's technique or

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theory can be or has been tested; 2) whether the technique or theory has been subject to

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peer review and publication; 3) the known or potential rate or error of the technique or

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theory when applied; 4) the existence and maintenance of standards and controls; and 5)

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whether the technique or theory has been generally accepted in the scientific community.

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A significant Daubert factor is the consideration of whether expert testimony is

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prepared in anticipation of or during the course of litigation, rather than independent of

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litigation. If the former, the testimony is presumptively unreliable. Courts will apply

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greater scrutiny to an expert opinion that was developed solely for litigation purposes.

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See Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9 Cir. 1995).

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In Samuel v. Ford Motor Co., 96 F. Supp.2d 491, 503 (D.Md. 2000), the court

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excluded an expert's design alternative because it was born in litigation and, therefore,

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was considered unreliable. See also, In Re Breast Implant Litigation, 11 F. Supp.2d

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1217, 1243 (D. Colo. 1998) (expert testimony on cause of auto-immune disease excluded

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where a vast majority of [the expert's] business [came] from Plaintiff's involved in breast

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implant litigation).

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The Daubert expert reliability requirement was formally incorporated into Rule

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702 as of December 1, 2000: If scientific, technical, or other specialized knowledge will

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assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
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thereto in the form of an opinion or otherwise, if 1) the testimony is based upon

sufficient facts or data; 2) the testimony is the product of reliable principles and methods;

and 3) the witness has applied the principles and methods reliably to the facts of the case.

Kumho Tire, supra, 526 U.S. at 141 conclusively decided that the Daubert gatekeeping

function of the district court applies to all expert testimony, scientific, non-scientific or

any type of technical evidence. The Joiner, supra, decision expanded Daubert by its

directive that there must be 1) a reliable methodology employed by the expert; and, 2) a

reliable application of that already determined reliable methodology.

An expert must explain both how and why he reached his opinion, Joiner, supra,

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522 U.S. at 144. And, simply because a well-qualified expert says something, it does not

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make it so. The Joiner decision, at p. 146, emphasized that: [N]othing in either Daubert

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or the Federal Rules of Evidence requires a district court to admit opinion evidence,

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which is connected to existing data, only on the ipse dixit of the expert. A Court may

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conclude that there is simply too great an analytical gap between the data and the opinion

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proffered.

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The possibility for abuse is augmented by the fact that an expert's opinion can

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carry greater weight with the fact-finder simply because it is cloaked in the aura of

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expertise. See, e.g., Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999) (A

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supremely qualified expert cannot waltz into the courtroom and render opinions unless

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those opinions are reliable and relevant under the test set forth by the Supreme Court in

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Daubert).

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Consequently, Rule 702 requires the trial court to judge the reliability of the entire

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how and why of an expert's proffered testimony, from the factual bases, to the underlying

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principles and methods, to the application of those principles and methods to the facts.

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[A]ny step that renders the analysis unreliable . . . renders the expert's testimony

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inadmissable. In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir.

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1994); see also, Rudd v. General Motors, supra. 127 F.Supp.2d at 1336 (Rule 702

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appears to require a trial judge to make an evaluation that delves more into the facts than
was recommended in Daubert, ...). Numerous decisions have considered the Daubert
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application post-Kumho.
Two are notable: In Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076, 1084

(8th Cir. 1998) the court stressed the great flexibility trial courts must have in adapting

its analysis to fit the facts of each case, holding that the trial court did not abuse its

discretion in excluding evidence that was unsupported opinion, nothing more than

unabashed speculation and Johnson v. District of Columbia, 728 A.2d 70, 74 (1999 D.C.

App.) reinforced the trial court's discretion to exclude testimony where the expert witness

might have experience in one aspect of an occupation but not be experienced in the

particular issue presented to the court. As this motion will show, this is a real problem in

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this case.

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Legal Standard for Admissibility of Expert Testimony

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It is an overarching goal that the trial court insure the reliability and relevancy of

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expert testimony and to make certain that an expert employs in the courtroom the same

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level of intellectual rigor that characterizes the practice of an expert in the relevant field.

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Kumho Tire, supra, 526 U.S. at 152. It is significant that the Court in Kumho Tire

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exhaustively examined the proffered expert testimony, providing the strong guidance that

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a trial court should do no less in its even analysis. Id. at pp. 1176-79. Indeed in separate

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opinions both Justice Scalia and Justice Breyer reached accord on the requisite analysis

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the trial court must give to this gatekeeper task. Justice Scalia's concurrence in Kumho

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Tire stresses the importance of the gatekeeping obligation, noting that the trial court's

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discretion in choosing the manner of testing expert reliability is not discretion to perform

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the function inadequately.

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Rather, it is discretion to choose among reasonable means of excluding expertise

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that is fausse and science that is junky. Id. at 1179. In a similar vein, Justice Breyer, the

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author of the Court's opinion in Kumho Tire, noted in General Electric v. Joiner that

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neither the difficulty of the task nor any comparative lack of expertise can excuse the

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judge from exercising the gatekeeper duties that Federal Rules of Evidence impose .. .

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522 U.S. at 148 (Breyer, J., concurring). Daubert directs that the trial court must make an
inquiry as to whether proffered expert testimony is sufficiently tied to the facts of the
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case that it aids the jury in resolving a factual dispute. Id. at p. 591. This necessary

relationship is critical because Daubert cautions that expert testimony should not be an

attempt to opine about the exhaustive of search for cosmic understanding but rather it

should be specific and pertinent because in the courtroom the issues are directed towards

the particularized resolution of legal disputes. Id. at pp. 596-597.

The governments purported expert comes to court with theories that have not

been tested, not submitted to peer review and not publicized in any forum. There is no

widespread acceptance of any opinion she may seek to give. Without such widespread

acceptance, Daubert recognizes that such testimony may properly be viewed with

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skepticism. Id. at p. 594. After Daubert, admission of expert testimony requires some

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objective independent validation of the expert's methodology. Moore v. Ashland

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Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998), cert, denied, No. 98-992, 1999

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Westlaw 266257 (U.S. Apr. 19, 1999). Again, Kumho Tire requires the same level of

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intellectual rigor that characterizes the practice of an expert in the relevant filed. 119 S.

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Ct. at 1176. Thus, courts will increasingly focus on whether the expert's analysis

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comports with the governing principles of his or her profession. Nothing in the 54 page

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report suggest that this peer review of Dr. Prakashs files will prove that Dr. Prakash

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committed health care fraud.

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Federal Rules of Evidence 702 requires that, to qualify as an expert, a witness

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must offer some special knowledge, skill, experience, training, or education in the

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specific topic regarding which he proposes to testify. United States v. Chang, 207 F.3d

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1169, 1172 (9th Cir. 2000). Rule 702 further requires that there be a fit between the

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witness' knowledge and the opinions he proffers.

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Even if an expert's credentials qualify him as an expert generally, they may not be

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sufficient to allow him to express the proffered opinion. The mere fact that an expert is

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qualified in one area does not necessarily qualify the expert to testify in related areas.

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Indeed, there are many different kinds of expertise. Courts will strike an expert whose

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area of expertise does not fit the case. Kumho, 526 U.S. at 150. See Shreve v. Sears,
Roebuck & Co, 166 F. Supp.2d 378, 394 (D.Md. 2001) (excluding an eminently qualified
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mechanical engineer and professor of mechanical engineering where he had no particular

expertise in snow throwers); Kerringan v. Maxon Industries, 223 F. Supp.2d 626, 637

(E.D.Pa 2002) (noting that, even though an expert was qualified to testify in general

terms about the function of a hydraulic system in a cement mixer, he was not qualified to

testify about a proposed safety feature because he lacked experience in equipment

design); Trumps v Toastmaster, Inc., 969 F. Supp.247, 252 (S.D.N.Y. 1997) (board

certified safety professional and mechanical engineer not qualified to testify regarding

the malfunction of electric grill).

As the Sixth Circuit stated in Smelser v. Norfolk Southern Railway in excluding a

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medical causation opinion from a biomechanical expert, the court is to examine not the

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qualifications of a witness in the abstract, but whether those qualifications provide a

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foundation for a witness to answer a specific question. 105 F.3d at 303. The health care

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fraud question in this case is not answered by a biased opinion about Dr. Prakashs

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medical choices.

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Thus, in Berrv v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994), the court

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counseled against putting some general seal of approval on an expert after he has been

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qualified but before any questions have been posed to him. Several pre-Kumho Tire

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cases dealing with non-scientific expert testimony address the issue of qualifications. For

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example, in Surace v. Caterpillar, the Third Circuit affirmed the exclusion of the

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testimony of an engineer on the issue of habituation because the expert drew his

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knowledge only from general experience and had never participated in any habituation

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testing or studies or read any literature on habituation. 111 F.3d at 1055-56.

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Likewise, in Bogasion v. Mercedes Benz, the First Circuit affirmed the exclusion

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of an expert's design defect opinion where the expert had extensive expertise in auto

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mechanics but very limited education in engineering and no experience in the design and

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manufacture of automobiles. 104 F.3d at 479. An expert's qualifications are often of

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greater significance outside engineering context. For example, in Berry v. Detroit, the

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Sixth Circuit included the opinion of a former sheriff that the defendant policy
department failed to adequately discipline its officers. 25 F.3d at 1348-53. The court
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emphasized that the expert did not have any first-hand familiarity with disciplining

police officers or the effect of lax discipline on the rest of police force, Id. at 1350, and

held that his broad experience as a sheriff did not qualify him to give his specific opinion

about alleged disciplinary shortcomings. Id. at 1352. Thus, when facing experience based

experts, it is particularly important to identify the expert's precise opinion and to analyze

the expert's experience in that particular field. A witnesses' expertise in one particular

subject does not qualify him to offer opinions about an entirely different subject even

though it may be within the same field. See In Re Unisys Savings Plan Litigation, 173

F.3d 145, 156-157 (3rd Cir. 1999) (court properly excluded testimony of expert whose

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alleged expertise in methods of investing with respect to property casualty insurance, did

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not fit with the case which involved life insurance).

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Likewise here, Dr. Neyhart has zero background in billing fraud or billing

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practices. Her proposed testimony is cheap and unconstitutional substitute for lack of

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evidence.

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MEDICAL DOCTORS

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A scientist or medical doctor is not presumed to have expert knowledge about

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every conceivable scientific principle or disease. Whiting v. Boston Edison Co., 891 F.

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Supp. 12, 24 (D. Mass. 1995).

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Every licensed medical doctor should not be automatically qualified to testify as

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an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152-153 (Tex.

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1996) it must be shown that the expert possesses special knowledge as to the very matter

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in which he proposes to give an opinion. Because doctors have medical specializations,

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the testifying doctor must have expertise concerning the actual subject of their opinion.

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An M.D. degree alone is not enough to qualify the expert to give an opinion on every

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conceivable medical question. Christophersen v. Allied-Signal Corporation, 939 F.2d

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1106, 1112-13 (5th Cir. 1991). See also O'Connor v. Commonwealth Edison Co., 807 F.

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Supp. 1376, 1390 (C.D. Ill. 1992) (No medical doctor is automatically an expert in every

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medical issue merely because he or she has graduated from medical school or has
achieved certification in a medical specialty).
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The health care fraud statute punishes one who knowingly and willfully

executes, or attempts to execute a scheme to defraud Medicare. 18 U.S.C. 1347.U.S.

v. Awad (9th Cir. 2009) 551 F.3d 930, 938 cert. denied, (U.S. 2009) 129 S.Ct. 2748 [174

L.Ed.2d 249]

The 9th Circuit has upheld the exclusion of medical expert testimony as to billing

practices. The report proffered by the government does not remotely come close to that

foundation nor should the government be allowed to present evidence through this expert

relating to billing practices. United States. v. Little (9th Cir. 2007) 230 Fed.Appx. 701,

703.

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Furthermore, this evidence is inadmissible under Rule 704(b). Federal Rule of

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Evidence 704(b) specifically precludes an expert from testifying in any way as to the

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ultimate issue of fact for the jury -- whether defendant had the intent to commit the

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crime: No expert witness testifying with respect to the mental state or condition of a

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defendant in a criminal case may state an opinion or inference as to whether the

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defendant did or did not have the mental state or condition constituting an element of the

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crime charged or of a defense thereto.

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Such ultimate issues are matters for the trier of fact alone. Fed. R. Evid.

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704(b).Rule 704(b) applies to all expert witnesses who are asked to state an opinion or

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inference as to a defendant's mental state or condition. United States v. Morales, 108

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F.3d 1031, 1035-36 (9th Cir. 1997) (en banc). A prohibited opinion or inference under

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Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited,

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that the defendant did or did not possess the requisite intent. Id. at 1037. Congress added

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Rule 704(b) to eliminate the confusing spectacle of competing expert witnesses testifying

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to directly contradictory conclusions as to the ultimate legal issue to be found by the trier

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of fact. United States v. Campos, 217 F.3d 707, 711 (9th Cir. 2000) (citing Senate Report

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No. 98-225 at 230-31 (1984)). The rationale for precluding ultimate opinion testimony

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applies to any ultimate mental state of the defendant that is relevant to the legal

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conclusion sought to be proven. Id. at 711.

Finally, it is a cardinal rule in the 9th Circuit that experts may not testify about
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issues within the ken of the jury. United States v. Fuentes-Gariaga, 209 F.3d 1140, 1142

n.3 (9th Cir. 2000) Expert testimony that consists of nothing more than drawing [factual]

inferences ... that [the expert is] no more qualified than the jury to draw is inadmissible.

United States v. Bender, 769 F.2d 595, 602 (9th Cir. 1985).

Conclusion

The trial court undertakes a rigorous analysis of the expert's opinion. See Kumho

Tire, 119 S. Ct. at 1174. As Daubert cautions, expert testimony can be both powerful and

quite misleading because of the difficulty in evaluating it. 509 U.S. at 595. Because

juries may be unwilling to challenge an expert's reliability due to the complexity of his or

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her testimony, only the court, by acting as a gatekeeper, can restrain a jury's tendency to

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give apparently scientific testimony ... more weight...than it deserves. DePaepe v.

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General Motors Corp., 141 F.3d 715, 720 (7th Cir.) (emphasis added), cert. denied, 119

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S.Ct. 617 (1998). As one commentator has put it, the current requirements that most

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courts impose on expert testimony can be thought of as eight gates. Harvey G. Brown,

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Jr., Eight Gates for Expert Witnesses, 36 HOUS. L. REV. 743, 747 (1999).

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Those gates or hurdles are:

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1) Helpfulness - the witness' testimony must assist the trier of fact.

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2) Qualifications - the expert must be qualified for each separate opinion offered.

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3) Relevancy - the expert evidence must be relevant pursuant to Federal Rule of

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Evidence 702.

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4) Methodological Reliability - the expert's methods must be reliable.

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5) Connective Reliability - the connection between the basis of the expert's

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opinion and his conclusion must be sound.

6) Foundational Reliability - the underlying facts or data upon which the expert's
opinion is based must be reliable.
7) Experts May Rely on Inadmissible Evidence if Such Evidence is Reasonably

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Relied upon by Experts in the Witness's Field - pursuant to Federal Rule of Evidence

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703, an expert witness may base his opinion on such inadmissable evidence.
8) Federal Rule of Evidence 403 - the expert's opinion must not amount to unfair
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prejudice.

The good local doctors opinions of what she would have done in her family

practice do not amount to proof causally, indirectly, or directly, that Dr. Prakash is guilty

of health care fraud.

THE FILES REVIEWED BY DR. NEYHART

First, the evidence at the hearing will establish what protocols Dr. Prakash set up

at the clinic for the six months he was involved prior to him severing the relationship.

The experts opinion is IRRELEVANT for a file that he never saw nor reviewed. In

addition, most of these patients had memory issues due to their age so their own

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recollection of medical history is not that critical. Finally, it is not admissible evidence

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to have testimony elicited on files that have nothing to do with him. In addition, other

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patients were treated by a physician on premises and Dr. Prakash simply reviewed the

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other physicians findings.

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Y.H.

13780-13829

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Dr. Prakash never saw the file or the patient.

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P.V.

15579-15632

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Dr. Prakash never saw file or the patient.

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M.V.

15382-15447
Dr. Prakash reviewed that file. This was a 96 year old woman. Dr. Prakash is a

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neurologist and Dr. Neyhart is not. It is like having a magistrate review a judge. She

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may differ with the exam recommendations but that is not the issue in this case. In

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addition, there are at least two other physicians involved in that file.

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X.V.

15682-15745

Never saw the file or the patient

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H.H.

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13532-13588
He reviewed the file with the physicians assistance.

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C.H

Dr. Sol Teitelbaum saw patient face to face. He was the attending physician. Dr.

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13476-13531

Prakash his findings.

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M.T.

15197-16245
Never saw file or the patient

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Y.L.

14399-14450

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Dr. Sol Teitelbaum saw this patient face to face. Dr. Prakash approved his work

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N.V.

7912-7956

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Dr. Prakash reviewed the physicians findings. He supervised physicians assistant. He

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met her personally.

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DATED: May 12, 2011

Respectfully submitted,

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Law Offices of Ronald Richards & Associates, A.P.C.

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/s Ronald Richards

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__________________________

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Ronald Richards, Esq.

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Attorneys for Ramanathan Prakash

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Exhibit A

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FILED UNDER SEAL

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