US v. Norton
| Decision Date | 11 August 1986 |
| Docket Number | Civ. A. No. 84-K-1576. |
| Citation | 640 F. Supp. 1257 |
| Parties | UNITED STATES of America, Plaintiff, v. John T. NORTON, M.D., Defendant. |
| Court | U.S. District Court — District of Colorado |
Richard J. Nolan, Special Asst., U.S. Atty., Denver, Colo., for plaintiff.
Albert A. Dawkins, William L. McBride, Denver, Colo., for defendant.
INJUNCTION
At 10:00 a.m. on May 20, 1986 I made Findings of Fact and Conclusions of Law as required by the Federal Rules of Civil Procedure in the above captioned case. Those findings and conclusions are specifically incorporated herein by reference. At that time I specifically reserved the right to specify the terms and conditions of the injunction.
Since the date I made findings, I referred this case to the probation department of this court for a detailed investigation and report. Both plaintiff and defendant were given full opportunity to review the report and make any objections thereto they wished. No objections were made.
In addition to other relevant data, the report discloses that the defendant is a highly respected physician, 59 years of age, who has practiced medicine in Denver, Colorado since 1954. He has a general practice and a recognized specialty in bariatric medicine. He has a large number of patients who come from all walks of life. Between May 20 and July 21, 1986 the probation department received numerous letters from Dr. Norton's patients. All of these letters were annexed to the probation report and are made a part of the record in this case. Each letter shows that Dr. Norton is a devoted physician who has the welfare of his patients foremost in mind. I have read each of these letters. The loyalty and devotion they show to this defendant as a medical practitioner weighs heavily on my mind in formulating the conditions of this injunction. Clearly, it is not in the public interest to deprive these patients of the dedicated care they have received and earnestly desire to continue to receive. It is not in the public interest to put this physician out of business.
Equally clearly, it is not in the public interest to have this defendant continue with his poor record keeping practices. There is not a shred of evidence to suggest that this defendant is involved in any kind of illicit drug business. If such were the case, my findings and rulings would be entirely different.
What the evidence does show is that the defendant has been somewhat sloppy and inaccurate in his record keeping due to a heavy patient load, employment of marginally experienced and barely trained help and inadequate record keeping devices and systems. The evidence also shows that the Drug Enforcement Administration has been erratic and sometimes heavy-handed in its enforcement activities with respect to this defendant. Enforcement has been accompanied by threats of criminal prosecution, inaccurate reports to pharmaceutical distributors and demands for license revocation. While, however, the government's conduct has been so characterized the defendant, whether through anger or frustration, has baited the government agents with his bruskness and disparagement of their performing their statutory duties.
Such are the conditions upon which judicial intervention was predicated. I perceive the best interests of justice in this case to be ameliorative rather than punitive. Accordingly, the terms and conditions of this injunction are designed to terminate the controversy between the parties, assure the defendant's full compliance with statutory requirements and preserve the rights of the large number of defendant's patients to continue in his care.
Following the trial of this case and my bench ruling, the defendant has taken commendable steps to correct his record keeping practices. According to the probation department report, he has secured the services of a computer consulting firm, he has purchased an IBM computer system at an initial cost of $15,000.00, he has had the system installed and he has changed his record keeping practices.
Accordingly, the defendant is hereby enjoined and required to do the following:
1. On or before September 5, 1986 on a date and time to be given to the office of the Drug Enforcement Administration in Denver, Colorado at least ten days in advance, the defendant shall have a complete inventory of all controlled substances taken by and under the direct supervision of an independent inventory company. Officials of the Drug Enforcement Agency are permitted to be present and such presence is expected by the court during the conduct of this inventory. The expense of this independent inventory shall be born by the defendant.
2. On or before September 15, 1986 the figures obtained from the inventory shall be used as the data base for the defendant's computerized inventory and for further record keeping and compliance purposes by the Drug Enforcement Administration. A copy of this data base shall be furnished to the local office of the Drug Enforcement Administration.
3. On or before the 15th day of each month thereafter until August 16, 1987, a copy of the then current computer printout of inventory shall be furnished to the same local office of the Drug Enforcement Administration.
4. At any times until August 16, 1987 during normal office hours upon the requests of employees of the Drug Enforcement Administration, the defendant shall permit such employees to scan the computer inventory and shall thereafter provide a print out of such inventory by the end of the normal office day immediately next following the date of such inspection.
5. Beginning immediately, the defendant shall maintain a separate file maintained in chronological order of each receipt, invoice and bill of lading showing the date and time of receipt, the quantity and identity of manufacturer and distribution, and the identity of the person actually receiving the delivery of each and every controlled substance received by defendant whether used in his medical practice or not so used. This file shall be open to inspection by employees of the Drug Enforcement Administration at any time during normal office hours.
6. Defendant shall maintain copies of all dispensing slips of controlled substances and shall make them available for inspection by D.E.A. employees at any time during normal office hours. These dispensing slips must be signed by defendant or another licensed medical doctor. They may be kept in order according to date and time of signature or filed according to the name of the patient who is the recipient of the prescription.
7. Under no circumstances shall defendant permit any controlled substances to be prescribed or dispensed to anyone except by the defendant or another licensed medical doctor acting in his place and stead.
8. The record keeping and compliance with this injunction and the relevant federal statutes and regulations shall be reviewed in open court at 8:00 a.m. on Friday, September 11, 1987. At that time the court may modify the terms and conditions of this injunction, terminate it or continue it in full force and effect. The court specifically reserves determination of the amount of fines or penalties, if any, to be imposed until the same time as this injunction is reviewed or sooner if contempt hearings should ensue during this interim.
9. At all times, the defendant shall comply substantially with all applicable provisions of the Controlled Substances Act and the regulations in the Code of Federal Regulations enacted in furtherance of that Act.
10. This action was commenced on August 2, 1984 and assigned to the Honorable John P. Moore, United States District Judge. On May 15, 1985 Judge Moore was elevated to the Court of Appeals. Much later this case was assigned to me. On May 5, 1986 an order to show cause was issued to the defendant, John T. Norton, M.D., in an administrative proceeding, docket number 86-48. Currently, a hearing is scheduled before an administrative law judge in Washington, D.C. Defendant has moved me to enjoin this administrative proceeding.
I have no desire whatever to interfere with the work of an administrative law judge in matters rightly brought before him. I assume with equal certitude that no administrative law judge would seek to interfere with the proper exercise of jurisdiction by a United States District Judge. The difficulty in this case is that the Drug Enforcement Administration invoked the equitable jurisdiction of this court and thereafter sought to maintain a parallel administrative proceeding apparently based on the same allegations.
Under the doctrine of primary jurisdiction courts will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal before the decision of that question by the administrative tribunal, (1) where the question demands the exercise of administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and (2) a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered. As stated in United States v. Western P.R.Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, (1956), the doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its use.
In I.C.C. v. J.B. Montgomery, Inc., 483 F.Supp. 279 (D.C.Colo.1980), Judge Carrigan stated:
As a general rule the doctrine of primary jurisdiction does not apply when the agency which is alleged to have primary jurisdiction is a plaintiff before the court:...
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...of primary jurisdiction does not apply when the administrative agency is the plaintiff before the court. See United States v. Norton, 640 F. Supp. 1257, 1260 (D. Colo. 1986) In this case, while livestock sales are not within the ordinary ken of judges, the questions raised are neither scien......