11th Circuit Upholds Statistical Testimony in Medicare-Fraud Prosecution

On plain error review, the Eleventh Circuit has upheld the trial court's admission of testimony from a statistician in a Medicare-fraud case.

The defendant was a dermatologist charged with performing unnecessary skin-cancer surgeries on hundreds of elderly patients. The putative need for surgery was based on biopsies conducted in the dermatologist's laboratory. Lab employees testified that the lab was staffed by inadequately trained technicians who did a poor job at preparing the biopsy slides. Sometimes, apparently for sport, the technicians altered the slides. Once, they said they substituted chewing gum for tissue. Another time, they substituted styrofoam. On both occasions, they said, the dermatologist diagnosed cancer based on the slides.

The prosecution's expert statistician selected a random sample of the dermatologist's slides and passed them along to the government's health experts, who testified to various opinions based on them. The statistician also testified at trial, without objection, about how he generated the random sample. The dermatologist was convicted.

On appeal, the dermatologist's lawyers argued on various grounds that the trial court should have excluded the statistician's expert testimony sua sponte. In response, the government argued, among other things, that the statistician's testimony wasn't expert evidence in the first place, because he did not offer an "opinion." In an unpublished per curiam opinion, the 11th Circuit affirmed the admission of the testimony but made short work of the government's "opinion" argument:

In its brief, the Government inexplicably contends [the statistician] was not an expert because he did not render any expert opinion. Although an expert is permitted to render an opinion, Fed. R. Evid. 703, 704, he is not required to do so, and failure to offer an opinion does not negate an expert's status, see Fed. R. Evid. 702. During the Government's proffer and during his testimony, [the statistician] discussed his specialized training, as well as the methodology he employs in selecting random samples. His specialized knowledge lay outside the province of the jury and rendered him an expert.

See United States v. Rosin, No. 06-15538 (11th Cir. Jan. 16, 2008) (Black, Hull, & Fay, JJ.).