Wisconsin rad loses appeal in drug distribution case

The U.S. Court of Appeals for the Seventh Circuit has affirmed the conviction of Roger A. Pellmann, who distributed a controlled substance while a practicing radiologist in Wisconsin.

The Feb. 10 decision, written by District Judge William M. Conley, who was sitting by designation, said the jury’s verdict was “supported by overwhelming evidence” adding that stricter sentencing based on Pellmann having lied to the U.S. Drug Enforcement Administration (DEA) is “more than reasonable under the circumstances.”

Pellmann had argued his conviction should be overturned because no expert testimony was presented to prove he distributed fentanyl, a Schedule II narcotic, outside of his professional practice. He also argued the district court improperly enhanced his sentence for obstruction of justice for misleading the DEA.

During the previous decade, Pellmann owned and operated the Pellmann Center for Medical Imaging in New Berlin, and the Pellmann-Evans Vein and Laser Clinic in Germantown. As part of his practice, Pellmann administered fentanyl, which is similar to but more potent than morphine, to patients as a painkiller. In 2009, Pellman dramatically increased his orders of both morphine and fentanyl, prompting a DEA investigation.

The DEA investigation revealed a large percentage of the prescription Pellmann issued were given to Jacquelynn Evans, a registered nurse employed by Pellmann, according to the background in the written decision.

At trial, Evans testified that Pellmann administered fentanyl to her to treat severe mouth pain from a fractured tooth, but on June 4, 2010, the jury returned a verdict of guilty on all counts.

Despite the lack of expert testimony, the Seventh Circuit said a jury could reasonably conclude that a doctor prescribed controlled substances outside the usual course of professional practice, and cited U.S. v. Armstrong, a nearly identical case decided in the Fifth Circuit.

“Just as did the Fifth Circuit in Armstrong, we find that—while expert testimony might have aided the jury and the district court would not have erred by admitting such testimony if offered by either party—the government was not required to present expert testimony, especially in light of overwhelming evidence of Pellmann's unprecedented and undocumented prescriptions of profoundly addicting and potent painkillers, which he personally administered in multiple, private houses and hotel rooms Pellmann shared with Evans for long-term treatment of a condition he was unqualified to diagnose and did not treat in his own area of practice,” read the decision.

The appeals court also found Pellmann’s challenge to the enhancement of his sentence for obstruction of justice lacked merit. Pellmann had told the DEA he had been in contact with Evans’ oral surgeon, but the oral surgeon later denied both knowing Pellmann and diagnosing Evans.

“Based on these factual findings, the district court's application of an enhancement for obstruction of justice…was wholly appropriate,” read the decision.

With the adjusted offense level, Pellmann was sentenced to 48 months on each count, to run concurrently, along with three years of supervised release.