United States v. Andrews, Criminal Action No. 09–261.

• Decision Date: 08 September 2011
• Docket Number: Criminal Action No. 09–261.
• Citation: 811 F.Supp.2d 1158
• Parties: UNITED STATES of America v. Dee Lynn ANDREWS.
• Court: U.S. District Court — Eastern District of Pennsylvania

811 F.Supp.2d 1158

UNITED STATES of America

v.Dee Lynn ANDREWS.

Criminal Action No. 09–261.

United States District Court, E.D. Pennsylvania.

Sept. 8, 2011.

Paul G. Shapiro, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Stuart Patchen, Defender Association of Philadelphia, Susan M. Lin, Federal Community Defenders, Philadelphia, PA, for Dee Lynn Andrews.

MEMORANDUM

ANITA B. BRODY, District Judge.

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.

I. Background

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.

A. Fen–Phen Litigation

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.

B. Andrews' Conduct

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 opt-out 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.

C. 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...