Bauer appeal says judge prevented a fair trial

PORT CLINTON — The federal judge who presided over a Port Clinton doctor's trial in Toledo for overprescribing painkillers prevented a fair trial by banning a dozen medical experts from testifying for Dr. William Bauer, defense attorneys say. The defense experts barred from testifying include a college professor, who an endowed chair at Indiana University; and a Toledo scientist, also a professor, who has dozens of research publications and thousands of citations. U.S. District Judge Jack Zouhary also gave the jury flawed instructions contradicted by a 9-0 Supreme Court ruling issued after Bauer's trial, states an appeal brief filed Tuesday at the U.S. Sixth Circuit Court of Appeals. The appeal says that the prosecution witness, the only expert permitted by Zouhary, gave flawed testimony that is contradicted by new CDC guidelines, the appeal contends. While the new CDC rules were issued after the trial, the problems the new CDC guidelines tried to fix were known at the time of trial but kept from the jury by Zouhary's rulings, the appeal contends. Bauer, 85, is currently serving a five-year prison term in a minimum security prison in Morgantown, West Virginia, after being convicted of multiple charges in July 2021 over allegations that he overprescribed pain medications and committed fraud on federal health care programs by not following good medical practices. A jury convicted Bauer of 76 counts of distribution of controlled substances and 25 counts of health care fraud. The appeal filed by two of Bauer's attorneys, Cleveland lawyers Orville Stifel II and John Gibbons, lists nine experts Bauer had planned to call to the stand on his behalf. Prosecutors waited for months to object to all nine, claiming at the eve of the trial that the defense had filed insufficient reports. After prosecutors complained that not all of the nine were medical doctors, the list included doctors but also medical specialists including a pharmacist, the defense offered three more doctors. All 12 were excluded by Zouhary, the appeal says. The doctors who weren't allowed to testify for Bauer include Fletcher A. White, currently listed on the Indiana University School of Medicine website as the Vergil K. Stoelting Professor of Anesthesia, an endowed chair. "Dr. White is an expert in the field of chronic pain mechanisms," according to the website, which discussed White's 30 years of research into neuroscience. Another expert excluded from testifying is John T. Wall, professor of neuroscience at the University of Toledo, who so far has published 62 research papers. The appeal contends that the exclusion of experts such as White, Wall and Beth Dille, director of practice management for primary care at Mercy Health in Cleveland, was an abuse of discretion by Zouhary, "thereby turning the trial into a one-sided contest that defendant was required to fight with both hands tied behind his back." The prosecution expert, Dr. Timothy King, is an Indiana anesthesiologist who makes large amounts of money testifying for the federal government. A footnote in the appeals brief states that federal prosecutors paid King $125,000 a day before the trial and an additional $5,000 a day during the trial. The appellate brief states that all of Bauer's witnesses "were testifying as a matter of principle and refused to accept any payment." The Bauer appeal claims that King's testimony about supposed limits in prescribing painkillers is contradicted by new CDC guidelines. Although the new guidelines had not been published by the time of the trial, the mistakes the new rules were trying to fix would have been explained by the experts prevented from testifying by Zouhary, the brief says. The appellate brief also cites a unanimous 2022 decision by the U.S. Supreme Court, Ruan v. United States. Xiulu Ruan and Shakeel Khan were convicted of drug trafficking after federal prosecutors said they wrote too many prescriptions for opioids. The Supreme Court ordered lower courts to determine if the two doctors are entitled to new trials. The court ruled that the two doctors, convicted in separate cases in Alabama and Wyoming, were entitled to argue they wrote their prescriptions in good faith because they believed they were medically necessary. The case shows that Zouhary misinformed the jury on the law, the appeal claims. Zouhary, 70, was nominated to the federal bench by President George W. Bush and confirmed in 2006. After Bauer was convicted but before he was sentenced, Zouhary rejected a motion for a new trial, citing "overwhelming evidence against defendant." The judge's ruling did not mention that Zouhary himself had barred a dozen witnesses from testifying for the defense. The prosecution has not yet filed its response to the appeal.