The opinion of the court was delivered by: Anita B. Brody, J.
The Government has moved in limine to exclude from trial psychiatric or psychological evidence offered by the Defendant, Dee Lynn Andrews, for the purpose of negating the mens rea element of the offenses for which she is charged, namely the specific intent to defraud. For the reasons set forth below, I will grant the motion.
On April 21, 2009, a federal grand jury returned a six-count indictment charging Andrews with three counts of mail fraud in violation of 18 U.S.C. §§ 1341, 1349 and three counts of wire fraud in violation of 18 U.S.C. §§ 1343, 1349. According to the indictment, Andrews "devised and intended to devise a scheme to defraud . . . and to obtain money and property . . . by means of knowingly false and fraudulent pretenses, representations and promises." Indictment ¶ 16. The details of that alleged scheme are as follows.
Pondimin and Redux were prescription diet drugs, distributed by doctors and weight loss clinics. Id. ¶ 1. When Pondimin or Redux was taken in combination with Phentermine, the drug was known as "Fen-Phen." Id .
On September 15, 1997, American Home Products Corporation (later
known as Wyeth) removed these drugs from the market. Id.
¶ 2. Those who had ingested them had filed individual and
class action lawsuits in federal and state courts, alleging that the
drugs had resulted in injury, including heart valve regurgitation and
valvular heart disease. Id.
On December 10, 1997, the Judicial Panel on Multidistrict Litigation transferred all federal cases to the United States District Court for the Eastern District of Pennsylvania. Id. ¶ 3. On August 28, 2000, the court approved a settlement agreement between the class and Wyeth. Id. ¶ 4.
The settlement agreement established a trust to administer the claims of and pay benefits to class members. Id. ¶ 6. Wyeth supplied the trust with funds to pay these benefits and cover the associated administrative costs. Id.
To be eligible for basic benefits under the settlement agreement, an individual had to have ingested the diet drugs and registered with the trust. Id. ¶ 8. Registration with the trust required the submission of a blue or pink form to the trust. Id. Greater benefits were available to those with serious levels of valvular heart disease, and could be claimed by additionally submitting a green form to the trust. Id. ¶ 10. Alternatively, class members could opt out of the settlement agreement and preserve their rights to sue by submitting orange forms to the trust. Id. ¶ 12.
Andrews took Pondimin from approximately 1994 until 1997. Resp. 4. On October 4, 2000, Andrews filed a lawsuit under the name Debra Simpson against Wyeth, alleging that she had ingested the diet drug Pondimin, and seeking damages. Indictment ¶ 14. On January 19, 2001, Andrews entered into a settlement agreement with Wyeth, pursuant to the terms of which she received approximately $200,000 and promised not to sue Wyeth for any claim arising out of her purchase, use, or ingestion of Pondimin or Redux. Id. ¶ 15.
Notwithstanding her promise not to sue, Andrews subsequently filed
multiple claims in multiple fora against Wyeth, seeking additional
damages. Andrews retained several different law firms, and failed
disclose to each the existence of the others. She represented to each
firm that she had ingested Fen-Phen and had not previously filed or
settled a suit against Wyeth, and used different names for each claim.
See id. ¶¶ 17-19. During the filing of these
claims, Andrews exchanged several correspondences with her lawyers and
the trust. Several significant communications between Andrews, her
lawyers, and the trust are highlighted here.
For example, on May 27, 2002, Defendant, under the name Debra Andrews, submitted a blue form to Law Firm No. 1, which was forwarded to the trust on July 23, 2002. Indictment ¶ 22; Mot. 6.
On July 31, 2002, Defendant, under the name Deb S. Simpson, submitted another blue form to the trust, identifying Law Firm No. 2 as her counsel of record. Indictment ¶ 23; Mot. 7.
On December 31, 2002, Defendant, under the name De Lynn A. Campbell, completed another blue form, identifying Law Firm No. 3 as her counsel of record. Indictment ¶ 24; Mot. 7. She represented to Law Firm No. 3 that she had never previously received any money from any source for her Fen-Phen claim. Indictment ¶ 24; Mot. 7. She then mailed this blue form to Law Firm No. 3 on January 10, 2003. Indictment ¶ 25; Mot. 7. On March 31, 2004, Defendant, under the name DeLynn Campbell, caused Law Firm No. 3 to file a civil complaint against Wyeth in the Superior Court of New Jersey. Indictment ¶ 26; Mot. 7-8.
On January 31, 2003, Defendant, under the name D. Lynn Andrews, caused Law Firm No. 5 to submit an orange form to the trust, certifying that she was qualified to exercise an opt- out right under the settlement agreement. Indictment ¶ 28; Mot. 8. That same day, Law Firm No. 5 filed a civil complaint in the Philadelphia Court of Common Pleas against Wyeth. Indictment ¶ 31; Mot. 8-9.
On April 25, 2003, Defendant, under the name Deborah L. Andrews, caused Law Firm No. 4 to submit an orange form to the trust, certifying that she was qualified to exercise an optout right under the settlement agreement. Indictment ¶ 27; Mot. 8.
On May 6, 2003, Defendant, under the name Debra L. Andrews, caused Law Firm No. 5 to mail another orange form to the trust. Indictment ¶ 32; Mot. 9. That same package included a blue form under the name of D Lynn L. Andrews. Indictment ¶ 32; Mot. 9-10.
On March 31, 2004, Defendant, under the name Deb. L. Andrews, received $61.00 from the trust. Indictment ¶ 33; Mot. 10.
On April 26, 2004, Defendant, under the name Lynn Andrews, caused Law Firm No. 6 to file a civil complaint in the Philadelphia Court of Common Pleas against Wyeth to recover for damages suffered as a result of ingestion of diet drugs. Indictment ¶ 35; Mot. 10.
Also on April 26, 2004, Defendant, under the name Deb L. Andrews, wrote to the trust to request a green form, which would enable her to obtain greater benefits from the trust. Indictment ¶ 34; Mot. 10.
On July 8, 2005, Defendant appeared for a deposition in Philadelphia, represented by Law Firm No. 5. Indictment ¶ 40; Mot. 11. On August 30, 2005, Defendant returned to Philadelphia to complete her deposition, and was again represented by Law Firm No. 5. Indictment ¶¶ 43-44; Mot. 11. At that time, counsel for Wyeth presented Defendant with the signature page of her 2001 settlement with Wyeth, pursuant to which she received $200,000 and agreed not to sue again. Mot. 12. Defendant's response was, "Shit." Id.
According to the indictment, the specific instances of mail fraud were as follows:
On April 26, 2004, Andrews requested a green form from the trust.
On May 17, 2004, Andrews' law firm filed a complaint against Wyeth.
On August 25, 2005, Wyeth noticed Andrews' deposition.
The specific instances of wire fraud were:
On July 7, 2005, Wyeth faxed an amended deposition notice.
On July 8, 2005, Andrews' attorney participated by telephone in her deposition.
On August 30, 2005, Andrews' attorney participated by telephone in the continuation of her deposition.
A. Andrews' Medical History
Andrews is a 59-year-old woman with a history of psychiatric treatment. Resp. 3. She was first hospitalized at the age of thirteen and is most consistently labeled as suffering from Bipolar Disorder Type I. Id . at 3-4. In 1997, Andrews was evaluated at Manatee Memorial Hospital for acute psychosis. Id. at 4. In February of 2001, she was treated at Blake Medical Center, which noted that she had a history of bipolar disorder and seizures. Id. On September 14, 2002, Andrews was taken to Paradise Valley Hospital for emergency services, where she admitted that she had been off her bipolar medication for a week. Id .
On September 20, 2002, Andrews' son called Value Options, a
behavioral health care provider, to state that Andrews was going to
miss an appointment. Gov't Ex. 1 at 3. He explained that Andrews was
incoherent, off of her Lithium, and needed to be seen psychiatrically.
Id. Andrews' son then took her to Thunderbird
Samaritan Medical Center, where a doctor wrote that she had "been
taking numerous medications including narcotic pain medications and
benzodiazepines," "was emotionally labile and pressured in her
speech," "was markedly confused and delirious," "was not able to
function," and "had not eaten for 1-2 weeks." Gov't Ex. 3 at 2. The
record of this visit also indicates that Andrews was "shouting,
crying, extremely agitated, and irritable" on admission, and she was
initially diagnosed with delirium. Id. at 3.
Andrews then gave a urine sample, which came back positive for
barbiturates, benzodiazepines, opiates, and propoxyphene.
Id. at 2.
On September 22, 2002, the notes from Value Options state that Andrews was "depressed, with rapid and pressured speech, disorganized, confused, with labile moods." Gov't Ex. 1 at 3. She was also "refusing treatment at [Thunderbird] and want[ed] to leave against doctor[']s orders." Id. Throughout her stay, Thunderbird employees wrote that she remained "a little manic." However, upon discharge, employees observed Andrews to be "awake, alert, and well oriented to time, place, and person," with normal speech and motor activity, a slightly irritable mood, and limited insight and judgment. Gov't Ex. 3 at 3. Andrews was discharged on September 28, 2002. See id. at 2-4.
On March 26, 2003, Andrews called Value Options because she was out of Lithium and Valium, and reported depression. Gov't Ex. 1 at 4.
On April 29, 2003, Andrews visited the Mayo Clinic Scottsdale's
Emergency Department because she had fallen while walking to the
bathroom, and she was concerned that she may have had a seizure, as
she had been out of her seizure medication for five days. Gov't Ex. 4
at 5 . Andrews reported that she had been out of
her Lithium, Valium, and Phenobarbital for the same amount of time.
Id. The medical records from this visit also state
that Andrews was "alert" and "oriented times two." She appeared "to be
in significant discomfort" and had quite "bizarre affect" but answered
"all of her questions appropriately." Id. at
On June 29, 2003, Value Options reported that Andrews displayed
slurred speech and spoke in a "tangential, tearful, high pitched
tone." Gov't Ex. 1 at 5. Andrews stated that she had
a PhD in marketing from the University of Michigan.
Id. at 5. On August 28, 2003, Andrews "appeared manic,"
with "rapid, pressured speech, and she was tangential." Id.
On September 8, 2003, a Value Options representative completed a special needs evaluation at Andrews' home. Id. at 8. According to the "Adult Intake Assessment" resulting from that visit, Andrews' chief complaint was that she had been depressed since stopping her psychiatric medications. Gov't Ex. 4 at 23. However, during the evaluation, Andrews' complaints were inconsistent. She contradicted herself repeatedly by stating, for example, that she was depressed yet not depressed, and sleeping yet not sleeping. Id. Andrews also reported at one point that she had felt better since stopping her medication, while claiming at other times that she had been very depressed since quitting her Lithium. Id. at 24. She was "vague about her current treatment, what medications she [was] taking, and when/why she stopped taking the medications" and "unreliable in reporting her symptoms and time frames." Id. at 11, 13. Andrews was also grandiose about her current employment. Id. at 11. Overall, "[d]uring the assessment, [Andrews'] speech was rapid, and [her] thought processes were extremely loose and tangential, therefore she had difficulty answering questions appropriately." Id . at 23. The evaluator found her "alert, engaging," "very talkative," but "loose and tangential in her thoughts." Id. at 12. Andrews "spoke loud and above the evaluator asking questions," "was unable to stay on topic, and needed a lot of redirection," and had "labile and inappropriate" affect. Id. at 13. Lastly, her "affect was incongruent." Id. For instance, Andrews spoke of her depression "while smiling and laughing." Id. Soon after this evaluation, Arizona granted Andrews Seriously Mentally Ill ("SMI") status, which entitled her to case management, psychiatric treatment, social support, medication support, and vocational training and assistance. Def. Ex. 11 at 4, 10.
On January 8, 2004, Value Options reported that Andrews was
"stable." Gov't Ex. 1 at 14. On May 3, 2004, Andrews "presented polite and professional."
Id. at 21. On March 25, 2005, Andrews "sounded
upbeat, alert and oriented," and was "able to communicate
effectively." Id. at 38. On March 31, 2005, Andrews was "dressed, groomed, alert and
oriented." Id. at 39. She "was able to communicate
effectively, tangential in thought, blunted affect." Id.