Case o' The Week: Expert Case A Bitter Pill to Swallow – Diaz and Expert Testimony on Ultimate Legal Issue

  A doc prescribes 5 million opiate pills in four years.  (Yet the government still needs an expert to opine on the ultimate legal issue: that this was “outside the usual course of professional practice?”)United States v. Julio Diaz, 2017 WL 6030724 (9thCir. Dec. 6, 2017), decision available here.Players: Decision by Judge Christen, joined by Judges Kleinfeld and Graber.   Hard-fought appeal by former CD Cal AFPD Davina Chen.  Facts: Dr. Diaz operated a clinic that served geriatric patients. Id. at *1. Over four years, he wrote 50,000 prescriptions and distributed over 5 million opiate pills – some patients were prescribed over 60 tablets a day. Id.   He went to trial on 79 counts of unlawfully distributing controlled prescription drugs, in violation of 21 USC § 841(a)(1). Id. Among other things, that statute requires proof that the distribution of the drugs was “outside the usual course of professional practice and…

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