Reply Brief — Ronald Stuart Lubetsky, Petitioner v. United States

No. 24-137

In the

Supreme Court of the United States

DR. RONALD LUBETSKY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

REPLY BRIEF

Matthew J. Pelcowitz

Chapman Law Group

701 Waterford Way, Ste. 340

Miami, FL 33126

(305) 712-7177

Ronald W. Chapman II

Counsel of Record

Chapman Law Group

1441 W. Long Lake Rd., Ste. 310

Troy, MI 48098

(248) 644-6326

rwchapman@

chapmanlawgroup.com

Counsel for Petitioner

130591

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

REPLY BRIEF FOR PETITIONER . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Court Should Decide the Ultimate

Disposition of this Case But it Need

Not Do So . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. T he Eleventh Ci rcu it ’s Disju nct ive

Reading Conflicts with Other Circuits and

this Court’s Case Law . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Gonzales v. Oregon,

546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gonzales v. Raich,

545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In re Boshears,

110 F.3d 1538 (11th Cir. 1997) . . . . . . . . . . . . . . . . . 4, 5

Johnson v. United States,

576 U.S. 591 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ruan v. United States,

597 U.S. 450 (2022) . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 11

United States v. Armstrong,

550 F.3d 382 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 10

United States v. Bauer,

82 F.4th 522 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 2

United States v. Feingold,

454 F.3d 1001 (9th Cir. 2006) . . . . . . . . . . . . . . . . 10, 11

United States v. Heaton,

59 F.4th 1226 (11th Cir. 2023) . . . . . . . . . . . . . . . . 2, 12

United States v. Ignasiak,

667 F.3d 1217 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . 2

iii

Cited Authorities

Page

United States v. Johnston,

268 U.S. 220 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Kahn,

58 F.4th 1308 (10th Cir. 2023) . . . . . . . . . . . . . . . . 4, 11

United States v. Kincherlow,

88 F.4th 897 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 5

United States v. Kousa,

No. 7:22-cr-00008-REW-EBA-1 (E.D. Ky. 2023) . . . 2

United States v. Lague,

971 F.3d 1032 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . 11

United States v. Maynard,

278 Fed. Appx. 214 (3d Cir. 2008) . . . . . . . . . . . . . . . . 1

United States v. Merrill,

513 F.3d 1293 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . 1

United States v. Miller,

891 F.3d 1220 (10th Cir. 2018) . . . . . . . . . . . . . . . . . . 10

United States v. Moore,

423 U.S. 122 (1975) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7-9

United States v. Morales,

No. 1:22-cr20255-DPG-1 (S.D. Fla. 2024) . . . . . . . . . 4

iv

Cited Authorities

Page

United States v. Nobles,

422 U.S. 225 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Oppong,

No. 21-3003, 2022 U.S. App. LEXIS 9475

(6th Cir. Apr. 8, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Ruan,

56 F.4th 1291 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . 4

United States v. Smith,

573 F.3d 639 (8th Cir. 2009) . . . . . . . . . . . . . . . . . 10, 11

United States v. Smithers,

92 F.4th 237 (4th Cir. 2024) . . . . . . . . . . . . . . . . . . 2, 11

United States v. Wall,

No. 20-10730, 2024 U.S. App. LEXIS 22766

(11th Cir. Sept. 6, 2024) . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES, REGULATIONS AND

OTHER AUTHORITIES

21 C.F.R. § 1306.04(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

21 U.S.C. § 841(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 11

Laura Kiesel, Chronic Pain: The “Invisible”

Disability, Harv. Health Blog, Apr. 28, 2017,

https://www.health.harvard.edu/blog/chronicpain-the-invisible-disability-2017042811360 . . . . . . . 8

v

Cited Authorities

Page

John J. Mulrooney II and Katherine E. Legel,

C u r r e n t Na v i g a ti o n Po i n t s i n D r u g

Diversion Law: Hidden Rocks in Shallow,

Murky, Drug-Infested Waters, 101 Marq.

L. Rev. 333 (2017), https://scholarship.law.

marquette.edu/mulr/vol101/iss2/3 . . . . . . . . . . . . . . . . 4

U.S. Dep’t of Justice Criminal Division, Opioid

Enforcement Action 2022 (Aug. 11, 2023),

https://www.justice.gov/criminal/criminalfraud/opioid-enforcement-action-2022 . . . . . . . . . . . . 3

Frederick Wolfe and Johannes J. Rasker, The

Evolution of Fibromyalgia, Its Concepts,

and Criteria, Nov. 29, 2021, https://www.ncbi.

nlm.nih.gov/pmc/articles/PMC8716007/ . . . . . . . . . . . 8

1

REPLY BRIEF FOR PETITIONER

The Controlled Substances Act (“CSA”), in particular

21 U.S.C. § 841(a), was enacted to target drug trafficking.

United States v. Moore, 423 U.S. 122, 137 (1975) (affirming

the harsh penalties for unlawful distribution were deemed

by Congress to be an appropriate sanction for drug

trafficking by a registered physician). And that’s exactly

the way in which the government initially enforced the

Act. See Pet. 6-8. Over time, however, the government

has broadened its enforcement of the CSA, prosecuting

physicians even where their prescribing is for a legitimate

medical purpose. Indeed, the government admits as much

in its response.

The government argues (at 16) that courts of appeals

have recognized that the same evidence will ordinarily

support a finding that a physician acted “without a

legitimate medical purpose” and a finding that he or she

acted “outside the usual course of his or her professional

practice.” Every case that the government cites is from

the 1970s to early 2000s. None extend past 2008 and

some were raised by Petitioner to demonstrate exactly

the government’s point: That the connective tissue that

used to exist between prescribing outside the usual course

of professional practice and other than for a legitimate

medical purpose has atrophied. See Pet. 6-7 n.1 (citing to

United States v. Merrill, 513 F.3d 1293, 1298 (11th Cir.

2008) and United States v. Maynard, 278 Fed. Appx. 214,

215 (3d Cir. 2008), inter alia, to demonstrate the CSA was

initially used to prosecute drug trafficking).

Nothing lasts forever. The government now instead

prosecutes physicians regardless of whether they are

2

engaged in drug trafficking. The Eleventh Circuit is

in lockstep with the government. See United States v.

Heaton, 59 F.4th 1226, 1239-40 (11th Cir. 2023) (rejecting

that the government must prove that a doctor was acting

as a drug dealer to convict for unlawful distribution). This

means that the CSA’s harsh penalties that were intended

for drug trafficking, Moore, 423 U.S. at 137, have been

broadened to reach physicians even when they are not

acting as drug dealers. Petitioner’s case is one example of

the government’s errant enforcement, but it is hardly the

only example. See United States v. Smithers, 92 F.4th 237,

251 (4th Cir. 2024) (For each patient that the government

presented evidence, Smithers spoke about their medical

records and complaints, and almost all of the patients had

significant accidents); United States v. Bauer, 82 F.4th 522,

533 (6th Cir. 2023) (Bauer’s practice did not resemble a

typical “pill mill,” he had a long history as a prominent

physician on the vanguard of pain management, and he

had no financial incentive to overprescribe opioids); United

States v. Ignasiak, 667 F.3d 1217, 1228 (11th Cir. 2012)

(Ample record evidence suggests that Ignasiak’s practice

exposed him to sick patients afflicted by legitimately

painful conditions and the medical records of all twenty

patients in the indictment documented illnesses that

caused pain).

But the cases listed immediately above only include

physicians that were convicted following the government’s

errant enforcement of the CSA. What about physicians

that are acquitted but expend considerable resources

in defending themselves while having their reputations

destroyed. In United States v. Kousa, No. 7:22-cr-00008REW-EBA-1 (E.D. Ky. 2023), the government prosecuted

a physician for the medical care and prescriptions that

3

he provided to rural patients in the Appalachians during

the height of COVID. The government was quick to post

to its webpage that it indicted him.1 The government was

silent following his acquittal. There was not one post to its

webpage on the verdict. For his part, Kousa is still trying

to piece his life back together and repair his degraded

reputation.

When it comes to prosecuting physicians under

the CSA there is no lenity. Pet. 28. Now is the time for

the Court to protect physicians and patients from the

government’s misguided enforcement of the CSA.

ARGUMENT

I.

The Court Should Decide the Ultimate Disposition

of this Case But it Need Not Do So

This Court “do[es] not grant *** certiorari to

review evidence and discuss specific facts.” United

States v. Johnston, 268 U.S. 220, 227 (1925). Nor does

the Court have to in this case. The Court can instead

decide the issue on whether the regulatory language for

measuring authorization can be applied in the disjunctive

and/or whether that disjunctive reading exceeds the

government’s authority under the Commerce Clause. 2

1. U.S. Dep’t of Justice Criminal Division, Opioid Enforcement

Action 2022 (Aug. 11, 2023), https://www.justice.gov/criminal/

criminal-fraud/opioid-enforcement-action-2022.

2. The government contends (at 8 n.1) that Petitioner’s

challenge on the Commerce Clause only concerns the specific

manner in which testimony in his case established relevant

medical standards. That is not true. The government used the

4

In Ruan v. United States, 597 U.S. 450, 468 (2022), for

example, the Court vacated the judgment of the court of

appeals and remanded the case for further proceedings

consistent with the Court’s opinion. See United States v.

Ruan, 56 F.4th 1291, 1295 (11th Cir. 2023). Still, it may

be in the best interest of medicine and justice that the

Court decide the ultimate disposition of this case given

the divergent outcomes that followed the Court’s decision

in Ruan. Compare Ruan 56 F.4th at 1302 (vacating

only unlawful distribution counts) with United States v.

Kahn, 58 F.4th 1308, 1322 (10th Cir. 2023) (vacating all

of physician’s convictions). Physicians (and their patients)

deserve parity under the law.

The government nonetheless contends (at 15) that the

Court should decline to review Petitioner’s case because

even on remand the court of appeals would find that

there was sufficient evidence that Petitioner prescribed

controlled substances other than for a legitimate medical

purpose. If that were the case, the court of appeals could

have added an additional sentence saying so. See In re

same heightened and unenumerated medical standard in United

States v. Morales, No. 1:22-cr20255-DPG-1 (S.D. Fla. 2024). Pet.

App. 21a-24a. Moreover, the government continues to raise the

bar on the standard for prescribing. See John J. Mulrooney II

and Katherine E. Legel, Current Navigation Points in Drug

Diversion Law: Hidden Rocks in Shallow, Murky, Drug-Infested

Waters, 101 Marq. L. Rev. 333, 385-86 (2017), https://scholarship.

law.marquette.edu/mulr/vol101/iss2/3. Petitioner argued in his

petition that the government has broadened its reach under the

CSA to prosecute physicians even where their prescribing adheres

to their State’s requirement for the same. Pet. 17-21, 28-29. The

government has thus exceeded its authority under the Commerce

Clause. See Gonzales v. Raich, 545 U.S. 1, 24-26 (2005); Gonzales

v. Oregon, 546 U.S. 243, 270 (2006).

5

Boshears, 110 F.3d 1538, 1541 (11th Cir. 1997) (“Even if

we were to find that Boshears’ Brady claim satisfied the

first prong of § 2244(b)(2)(B), he would still be prohibited

from raising this claim in a new habeas petition because

the claim fails the second prong.”). In fact, two judges

on the panel have done exactly that. See United States v.

Kincherlow, 88 F.4th 897, 906 (11th Cir. 2023) (“So, even

if Kincherlow did not have notice, his argument would

still fail.”) (Lagoa, J., authoring); see also United States

v. Wall, No. 20-10730, 2024 U.S. App. LEXIS 22766, at

*25 (11th Cir. Sept. 6, 2024) (“Ultimately, even if Mobley

and Wall didn’t invite the error and the failure to instruct

on intent were error, any error was harmless.”) (Brasher,

J., authoring).

The government invites the Court to use regulatory

language that is “ambiguous” and “open to varying

constructions,” Ruan, 597 U.S. at 459, to uphold the court

of appeals’ ambiguous decision that is open to varying

constructions. The United States judicial system demands

more than that. See United States v. Nobles, 422 U.S.

225, 231 (1975) (holding that the ends of criminal justice

would be defeated if judgments were founded on partial

or speculative presentation of the facts).

Moreover, the court of appeals’ opinion makes clear

that it did not consider whether Petitioner distributed

controlled substances for other than a legitimate medical

purpose. Pet. App. 3a-4a (“Because the evidence in this

case was sufficient to prove a knowing deviation from

the usual course of medical practice, it does not matter

whether there was also sufficient evidence to prove

a knowing lack of legitimate medical purpose.”). The

government is incorrect in arguing (at 10) that the district

6

court and court of appeals are in agreement as to what

conclusion the record requires on this issue.

Indeed, Dr. Rubenstein never testified that Petitioner’s

prescriptions were for “other than a legitimate medical

purpose.” Pet. 11. Nor could he have, given that he applied

the incorrect standard in arriving at his expert opinion,

which was based on “listening to the recordings of the

appointments that YH had with [Petitioner].” Gov’t C.A.

Br. 25 n.2. That is irrelevant to the government, which

insists (at 5) that Dr. Rubenstein testified that Petitioner

did not take a sufficiently detailed medical history of

YH; did not conduct an appropriately detailed physical

examination of her before prescribing opioids; and did

not diagnose YH with a medical condition supporting

opioid-only treatment. But Dr. Rubenstein did not review

YH’s medical history contained in Petitioner’s patient

file, which not only included information from YH’s audio

recording but her medical history from her initial patient

paperwork and her prior medical records. Lubetsky Br.

16. Dr. Rubenstein also only listened to audio of YH’s

initial patient visit. Id. This means that he had no way of

knowing the scope of the physical examination given to

YH. See Gov’t C.A. Br. 25 n.2; Pet. App. 8a-10a. Nor was

Dr. Rubenstein privy to prior treatments that YH tried

before the opioids prescribed by Petitioner.

YH was a chronic pain patient and her medical records

reflected that. Petitioner treated her as such, prescribing

her a one-month prescription for sixty 30-miligram

morphine pills. 3 Indeed, Petitioner’s medical expert, Dr.

3. The indictment did not charge Petitioner for his initial

patient visit with, nor prescriptions to, YH. Lubetsky Br. 34.

7

Sternberg, testified that Petitioner performed a thorough

evaluation before prescribing any analgesics to YH. That

evaluation included a complete medical history, physical

examination, and review of the Florida Prescription

Database. Lubetsky Br. 18. Dr. Sternberg also found

that Petitioner addressed YH’s inconsistent urine drug

screens by reducing the doses of YH’s prescriptions and

impressing on her the gravity of breaching her opioid

treatment contract. Id. 19. Petitioner even encouraged YH

to pursue counseling following her claims of homelessness,

which made her sell some of her medications. Id. 13, 19

n.5. This all led Dr. Sternberg to opine that Petitioner’s

prescriptions to YH were issued in the usual course of his

professional practice and for a legitimate medical purpose.

Id. 19-20, 34. Significantly, Dr. Sternberg’s opinion, unlike

Dr. Rubenstein’s, was based both on YH’s recordings and

her medical records. Lubetsky Reply 15.

Still, the government (at 8-9) compares Petitioner’s

prescribing to that in Moore, where this Court affirmed

the conviction of a physician based on evidence of his

deficient prescribing practices, which included: conducting

cursory or nonexistent physical exams; ignoring test

results; taking inadequate precautions against diversion

or misuse of drugs; issuing prescriptions in dosages and

frequencies based on the patient’s demand; and charging

patients based on the amount of controlled substances

patients requested. 423 U.S. at 142-43.

Even if the government was correct (and it’s not),

such that the physician’s conduct in Moore resembles

Petitioner’s prescribing in this case, Moore was decided

in 1975. Medicine is not a static enterprise. Fibromyalgia,

for example, only became widely accepted in the medical

8

community in the 1990s when the condition was first noted

in the American College of Rheumatology.4 Fibromyalgia

is now recognized as a chronic condition that causes

widespread pain and tenderness throughout the body. 5

The condition often does not manifest in physical infirmity

or impairment. 6 Indeed, one Fibromyalgia patient

recounts how many in the medical community dismissed

her complaints of pain, insisting that “You don’t seem

sick.” 7 The government concedes (at 3) that YH displayed

full range of motion and no loss of strength. But that does

not mean that YH was not suffering from pain. On the

contrary, she complained of exactly that. See 11/1/22 Tr.

66. The government and Dr. Rubenstein, a self-proclaimed

“dinosaur,” 11/1/22 Tr. 4, are using medical standards

from the 1900s to evaluate Petitioner’s prescribing in the

21st century.

Moreover, Petitioner, unlike the physician in Moore,

always conducted a physical examination on initial patient

visits; he required his patients to adhere to an opioid

treatment agreement; he offered alternative treatments

like counseling and stretching; he communicated to his

patients the gravity of violating their opioid treatment

agreement; and he made sure to follow up with patients

4. Frederick Wolfe and Johannes J. Rasker, The Evolution of

Fibromyalgia, Its Concepts, and Criteria, Nov. 29, 2021, https://

www.ncbi.nlm.nih.gov/pmc/articles/PMC8716007/.

5. Id.

6. Laura Kiesel, Chronic Pain: The “Invisible” Disability,

Harv. Health Blog, Apr. 28, 2017, https://www.health.harvard.edu/

blog/chronic-pain-the-invisible-disability-2017042811360.

7. Id.

9

and inquire on inconsistent urine drug screens. Lubetsky

Br. 18-20. Whereas the physician in Moore “ignored the

results of tests he did make,” 423 U.S. at 143, Petitioner

acted on unexpected findings and probed YH on the

inconsistencies. Indeed, there was not one “patient

interaction where those red flags were not addressed.”

Lubetsky Br. 41 (citing 11/2/22 Tr. 50). It was only after

YH’s red flags were addressed that Petitioner prescribed

her medications, reducing the doses of YH’s prescriptions.

Lubetsky Br. 19. In fact, while in Moore the physician “did

not charge for medical services rendered, but graduated

his fee according to the number of tablets desired,” the

government concedes (at 9) that Petitioner charged a set

cash fee for YH’s appointments—even where Petitioner

reduced YH’s prescriptions.

The government directs the Court (at 10) to Petitioner’s

purported false “progress notes.” But those “notes”

were not a part of YH’s patient chart. Instead, the notes

were stored in Petitioner’s personal laptop which was

independent and external to YH’s medical records which

were found at Petitioner’s medical practice. Lubetsky Br.

43-44; 11/2/2022 Tr. 119. In any event, it is not necessary

to spare with the government over the “progress

notes.” Petitioner was acquitted on five of the unlawful

distribution counts. Judgment, Dkt. 92 (Jan. 11, 2023).

For each of the acquitted counts, the jury heard and

saw evidence of a corresponding false “progress note.”

Lubetsky Br. 43-44; 10/31/22 Tr. 115-16. Whatever value

the government assigns the “progress notes,” the jury

was not convinced. This case boils down to the medicine,

and the government convicting Petitioner based on a

heightened and unenumerated standard for prescribing.

Pet. 26.

10

II. The Eleventh Circuit’s Disjunctive Reading

Conflicts with Other Circuits and this Court’s Case

Law

The government insists (at 11) that there is no

disagreement in the courts of appeals that warrants this

Court’s review. Specifically, the government refutes (at

13-15) that United States v. Smith, 573 F.3d 639 (8th Cir.

2009) and United States v. Feingold, 454 F.3d 1001 (9th

Cir. 2006) require that the conjunctive reading be used to

measure authorization under 21 U.S.C. § 841(a). That may

be the government’s reading of both cases. But that’s not

how courts have interpreted either decision.

The Sixth Circuit has interpreted Smith, 573 F.3d at

649 as suggesting that to convict a physician of unlawful

distribution there must be a separate showing that he

acted absent a “legitimate medical purpose.” United

States v. Oppong, No. 21-3003, 2022 U.S. App. LEXIS

9475, at *15 (6th Cir. Apr. 8, 2022). There, the Sixth

Circuit found the holding in Feingold, 454 F.3d at 1012 to

be even more direct. Id. (finding Feingold held that the

conjunctive reading “correctly articulated” the standard

for criminal liability).

The Fifth Circuit has also interpreted Feingold as

holding that the conjunctive reading is appropriate. United

States v. Armstrong, 550 F.3d 382, 400 (5th Cir. 2008) (“We

are not persuaded by the reasoning of the Ninth Circuit

in Feingold.”). So has the Tenth Circuit. United States

v. Miller, 891 F.3d 1220, 1228 (10th Cir. 2018) (citing to

Feingold to find that the standard for criminal liability

under § 841(a) requires more than violating the standard

of care). Even the Ninth Circuit has interpreted Feingold

11

to impose the conjunctive reading. United States v. Lague,

971 F.3d 1032, 1041 (9th Cir. 2020).

Whatever the government’s view of Smith and

Feingold, other courts interpret both decisions to require

the conjunctive reading to measure authorization under 21

U.S.C. § 841(a). The Eleventh Circuit’s disjunctive reading

conflicts with Smith and Feingold. That disjunctive

reading also conflicts with the Tenth Circuit’s decision

following the Court’s decision in Ruan. See Kahn, 58

F.4th at 1316. More conflict will certainly follow. Smithers,

92 F.4th at 246-47. Even if the status quo remains, it is

hardly appropriate, like the government advises (at 15),

for physicians to “harbor doubt about whether” their

circuit follows the disjunctive or conjunctive reading.

The Constitution requires more than that. See Johnson

v. United States, 576 U.S. 591, 595 (2015) (affirming the

Fifth Amendment requires fair notice of criminal law to

avoid arbitrary enforcement).

The Eleventh Circuit’s disjunctive reading is also

difficult to square with this Court’s case law. This Court

has been clear that 21 C.F.R. § 1306.04(a)’s regulatory

language defining an authorized prescription is ambiguous,

written in generalities, susceptible to more precise

definition and open to varying constructions. Ruan, 597

U.S. at 459. There, the Court imposed a “strong scienter

requirement” to protect against “overdeterrence,” i.e.,

punishing conduct that lies close to but on the permissible

side of the criminal line. Id. The Eleventh Circuit denies

that ambiguity exists. Instead, “the plain language of 21

C.F.R. § 1306.04(a) demonstrates that ... a prescription

for a controlled substance is effective if it is issued ‘for a

legitimate medical purpose by an individual practitioner

12

acting in the usual course of his professional practice.’”

Heaton, 59 F.4th at 1240.

No lenity will be shown to physicians absent this

Court’s intervention. Pet. 27-29. The government will

instead persist in creating its own prescribing standard

to restrict medicine.

CONCLUSION

It’s too late for Smithers, Bauer, Ignasiak, and Kousa.

Still, this petition does not lack “practical significance.”

The Court can intervene to protect physicians from

overdeterrence moving forward. The petition for a writ

of certiorari should be granted.

Respectfully submitted,

Matthew J. Pelcowitz

Chapman Law Group

701 Waterford Way, Ste. 340

Miami, FL 33126

(305) 712-7177

Ronald W. Chapman II

Counsel of Record

Chapman Law Group

1441 W. Long Lake Rd., Ste. 310

Troy, MI 48098

(248) 644-6326

rwchapman@

chapmanlawgroup.com

Counsel for Petitioner