Dr. Bernard Rottschaefer, a Plum physician convicted in 2004 of prescribing powerful narcotics to former patients in exchange for sex, is once again seeking a new trial. This time, he's relying on evidence from a surprising source: testimony by the patients who got him locked up ... and are now suing him in a civil case.
Rottschaefer's criminal case has garnered national attention because after his conviction, evidence surfaced that a key witness against him lied so she could make a deal on her own criminal drug case. All but one of the five patients testifying against Rottschaefer got breaks on their own drug charges. (See City Paper Main Feature, "Bitter Pills," May 25.)
But in the motion for a new trial filed last week by Rottschaefer's attorney, Eli Stutsman of Portland, Ore., the doctor is claiming that statements made by the women in their civil suit contradict testimony they gave during the criminal trial.
The U.S. Attorney's office alleged during the Rottschaefer prosecution that the women were addicts and that the pills, which included OxyContin, were prescribed in exchange for sex, rather than for medicinal use. However, Stutsman's brief claims that in their depositions, the women acknowledge having had medical ailments requiring treatment with painkillers.
For example, former patient Jennifer Riggle testified at Rottschaefer's trial that she made up a story to get OxyContin from Rottschaefer and she took the drug when she couldn't get heroin. During the civil deposition, however, Riggle says she had suffered from pain as a result of a broken tailbone when Rottschaefer prescribed OxyContin in 2001.
Former patient Corey Schlemmer testified at trial that she became addicted to OxyContin after Rottschaefer prescribed it, and that this addiction led to a heroin habit. In her civil testimony, however, she says she wasn't addicted to crack or heroin, but used them experimentally.
"The fact that each and every one of the five complaining witnesses has, since Dr. Rottschaefer's prosecution, given sworn civil deposition testimony that reveals her prosecution testimony to be false and misleading, is extraordinary," Stutsman's court motion asserts. "The false testimony went to the heart of the case: whether the prescriptions were issued for medical treatment or as drug dealing.
"The question in this prosecution was not whether the defendant distributed controlled substances, for Dr. Rottschaefer did; it is whether Dr. Rottschaefer distributed the controlled substances in the course of medical practice," the brief concludes. "If he did, there is no crime. If he abandoned the practice of medicine and acted instead as a mere drug dealer, then the distributions were criminal."
Stutsman has requested a hearing on his motion, which will be set after the U.S. Attorney's office files its response. U.S. Attorney Mary Beth Buchanan declined comment on the motion through her spokeswoman.
The motion could give new life to Rottschaefer, who had been hoping the U.S. Supreme Court would decide to hear his original appeal. That decision should be announced Oct. 2.