Prosecutions fizzle in ‘pill mill’ case but suits proceed

Physicians and staff who were arrested and charged after Indiana and federal law enforcement officials claimed their medical practice was a pill mill are headed to the 7th Circuit Court of Appeals as they push forward with a civil lawsuit claiming their prosecution was built on allegations the government knew were false.

The employees of the Drug Opiate Recovery Network (DORN) filed two separate complaints after the charges against them were either dismissed or, in the case of Larry Ley, M.D. — the only individual to go to trial — acquitted. They made claims that included false arrest, false imprisonment, malicious prosecution and conspiracy against individual agents and the city of Carmel.

Although they successfully fought the criminal charges, the plaintiffs have struggled in federal court with their civil suit. In March 2019, the U.S. District Court for the Southern District of Indiana granted the defendants’ motion for summary judgment, finding law enforcement had probable cause to make the arrests.

Plaintiffs have appealed to the 7th Circuit, and oral arguments are scheduled for Nov. 5.

The DORN clinic, founded by Ley, treated opioid addiction through the prescribing of Suboxone. Law enforcement began an investigation into the medical practice in August 2013 and, according to court documents, they found the physicians were issuing a high number of Suboxone prescriptions, many prescriptions had been presigned, new patients were seen by Ley in a group setting then turned over to another doctor in the practice, and only cash was accepted as payment for services.

When the arrests were made in July 2014, Aaron Dietz, a Carmel police officer, held a press conference. He called Ley the “Pablo Escobar of Suboxone” and said the DORN employees were no different than “street corner drug pushers.”

Swept up in the arrests was Carmel attorney Andrew Dollard. In the complaint, he is described as advising DORN’s physicians, staff and patients with counseling, urinary drug screens, employment and attendance at 12-step programs.

The district court ruled the investigators had established probable cause for the arrest warrants. Judge Richard Young found the information gathered through the investigation would lead a reasonable person to believe DORN and its employees “prescribed Suboxone without a legitimate medical purpose.”

That is all law enforcement is required to do, Young wrote. “Law enforcement do not need a foolproof and absolute belief — just a reasonable one.”

On appeal, the plaintiffs argue the district court erred.

They assert Gary Whisenand, who led the investigation on behalf of the DEA and presented the probable cause affidavit, made false statements in the affidavit. They claim he erroneously quoted state statute and underrepresented the number of patients who were given urinary drug screens even after undercover agents confirmed every DORN patient was required to submit to drug testing. In addition, they contend, he omitted his own conclusion that the DORN physicians lacked criminal intent along with information that a previous investigation by the Indiana Attorney General had found no wrongdoing.

However, the defendants counter Whisenand did not have serious doubts about the facts contained in the affidavit and he did not present falsehoods to the courts. He relied primarily on the information gathered through undercover visits to DORN offices, as well as upon witness interviews and reports from independent experts.

The defendants echo the summary judgment ruling in asserting the plaintiffs’ arguments are actually defenses to the charges that were filed, and subsequently dropped, against them.

In addition, the defendants maintain Whisenand did not act alone. Arguing it is the judiciary’s responsibility to determine whether an officer’s allegations constitute probable cause, they note both the Hamilton and Howard superior courts found there was probable cause. Also, they point out, Whisenand prepared the affidavit with help from his supervisor as well as prosecutors in Hamilton and Howard counties — Andre Miksha and Ron Byal, respectively.

Miksha and Byal “reviewed and revised the Affidavit several times before filing it,” the defendants argued to the 7th Circuit. “The decision to prosecute the DORN employees, and which employees to prosecute, was Miksha’s and Byal’s.”

The plaintiffs also assert Whisenand and Dietz are not entitled to qualified immunity. They reiterate their claim that Whisenand omitted exculpatory evidence from the probable cause affidavit and withheld evidence from the experts. With Dietz, they contend he was “more than a casual observer” in the decision to prosecute, citing examples of his involvement in the investigation and testimony that he had final decision-making authority as the director of the Hamilton/Boone County Drug Task Force on whether to pursue or withdraw from the prosecution.

Defendants counter Whisenand has qualified immunity. They maintain he did not knowingly pursue charges against someone he believed was innocent.

The case is Andrew J. Dollard, et al. v. Gary Whisenand, et al., consolidated nos. 19-1602, 19-1604, 19-1605.•