Conditional Admissibility of Patient-Death Evidence in Pill-Mill Prosecutions Requires a Defendant-Specific “Connectivity” Showing

Case: United States of America v. Evann Herrell; Mark Grenkoski; Keri McFarlane (6th Cir. June 16, 2026)
Court: United States Court of Appeals for the Sixth Circuit
Opinion by: Judge Bloomekatz (Moore and Gibbons, JJ., joining)

Introduction

This published Sixth Circuit decision arises from a 30-day jury trial concerning Express Health Care (EHC), a purported opioid-addiction treatment clinic that the government characterized as a “pill mill.” The defendants—physicians Evann Herrell, Mark Grenkoski, and Keri McFarlane—were convicted of multiple conspiracies, including conspiracy to distribute controlled substances, health care fraud, falsification of medical records, and money laundering.

On appeal, the defendants attacked (i) the sufficiency of the evidence (especially the post-Ruan subjective mens rea for controlled-substance prescribing), (ii) several evidentiary rulings (including hearsay, lay/expert boundaries, and the treatment of patient-death references), (iii) denial of severance (McFarlane), (iv) jury instructions on mens rea and deliberate ignorance, (v) cumulative error (Grenkoski), and (vi) post-sentencing jurisdiction under Rule 35 (Grenkoski).

While the panel largely treated the appeal as an application of settled doctrine, it expressly endorsed (as a published holding) a principle previously discussed in an unpublished pill-mill decision: evidence relating to patient deaths/overdoses may be admissible to prove a prescriber’s knowledge and disregard, but only where the government can show a meaningful connection (“connectivity”) to the charged defendant(s) and prescribing conduct at issue.

Summary of the Opinion

  • Convictions affirmed. The court held the evidence was sufficient to sustain the controlled-substance conspiracy convictions and Grenkoski’s health care fraud conspiracy conviction.
  • Evidentiary rulings mostly affirmed. The panel found no reversible abuse of discretion in excluding evidence of the 2023 elimination of the “X-waiver” caps, admitting certain “effect on the listener” statements, admitting text messages about robbery concerns, and allowing limited physician lay testimony; any missteps were harmless.
  • Patient-death evidence: The court approved the general approach that overdose/death evidence can be admitted when connected to the defendants, but found error where the district court allowed a passing “two people died” reference without the required connection and without a limiting instruction; the error was harmless.
  • Severance denied. McFarlane failed to show “compelling, specific, and actual prejudice.”
  • Jury instructions upheld. The controlled-substance conspiracy instruction tracked United States v. Ruan and deliberate-ignorance language was consistent with Sixth Circuit precedent.
  • Cumulative error rejected. Any errors did not render the trial fundamentally unfair.
  • Rule 35 jurisdiction: The district court lacked jurisdiction to correct/reduce Grenkoski’s sentence after 14 days, consistent with circuit law.

Analysis

1) Precedents Cited (and Their Role)

Sufficiency of the evidence and pill-mill proof patterns

  • United States v. Reynolds: Set the appellate posture—facts are read in the light most favorable to the verdict, framing the court’s deference to the jury’s view of EHC as a pill mill.
  • United States v. Elliott and United States v. Martinez: Supplied the familiar rational-juror sufficiency standard and served as pill-mill comparators (abnormal prescribing, minimal visits, repeated red flags).
  • United States v. Ruan: Provided the controlling mens rea rule—doctors must have subjectively known their prescriptions were unauthorized, anchoring both sufficiency and jury-instruction analysis.
  • United States v. Bauer, United States v. Anderson, United States v. Suetholz, Oppong v. United States: Demonstrated that circumstantial “red-flag” evidence (failed exams, diversion signals, lack of conservative alternatives) can satisfy Ruan’s subjective-knowledge requirement, particularly where a jury may infer knowledge from persistent departures from accepted practice.
  • United States v. Persaud: Supported deference to the jury’s choice between competing experts and was invoked to defeat the argument that disagreement among experts renders a verdict irrational.
  • United States v. Stanton: Reinforced conspiracy principles—liability does not depend on completing substantive distributions, and “deliberately avoid[ing] learning” of illicit pill-mill practices can support conspiratorial knowledge.

Health care fraud theory and forfeiture

  • United States v. Bertram: Provided the fraud-by-omission theory—knowingly omitting material facts to obtain Medicare reimbursement can satisfy health care fraud, supporting the duplicative-testing theory.
  • Scott v. First S. Nat'l Bank: Supplied the forfeiture rule—Grenkoski’s failure to attack the “standing order” theory in his opening brief forfeited that issue.

Evidentiary rulings: relevance, prejudice, hearsay, and lay/expert boundaries

  • Biegas v. Quickway Carriers, Inc. and United States v. Young: Established review standards (abuse of discretion; plain error when unpreserved; harmless error where the verdict was not materially affected).
  • United States v. Wilder and United States v. Potter: Supplied the “low bar” for Rule 401 relevance, then positioned Rule 403 as the decisive filter.
  • United States v. Campbell: Supported exclusion of post-conspiracy regulatory materials because “timeline mismatch” reduces probative value and risks jury confusion—used to uphold excluding evidence of the 2023 X-waiver elimination.
  • United States v. Blackwell: Controlled the “complete defense” argument; exclusion under standard evidence rules is not unconstitutional absent a reasonable-doubt-changing effect.
  • United States v. Kerley and United States v. Cuti: Supported allowing certain “would you have acted differently” testimony as permissible lay opinion under Rule 701.
  • United States v. Churn and Gover v. Perry: Governed hearsay disputes—statements admitted for their effect on the listener (and the listener’s resulting actions/notice) are not hearsay if relevant.
  • United States v. Francis and Taylor v. United States: Defeated an “improper vouching” framing because the challenged “honest doctor” sentiment came from a witness, not prosecutorial argument.
  • United States v. Clay and United States v. Sanders: Clarified Rule 403—prejudice must do more than paint a defendant in a bad light; applied to the robbery/“take a bullet” text messages.
  • United States v. Martinez (1970): Supported the proposition that in joint trials some evidence will be defendant-specific, and limiting instructions can mitigate spillover.
  • United States v. Wells and United States v. Betro: Marked the lay/expert line for physicians—treating/firsthand testimony is permitted, but witnesses may not opine broadly on objectively “correct” practice; any overreach by Dr. Zotos was deemed harmless.
  • United States v. Bell: Supplied the harmless-error lens for evidentiary over-inclusion given strong proof overall.

Patient death/overdose evidence: comparative authority and the Sixth Circuit’s endorsement

  • United States v. Hofstetter, United States v. Schwartz, United States v. Bourlier: Offered persuasive authority that overdose/death evidence may be admissible (often tied to notice and failure to adjust dangerous prescribing).
  • United States v. Suetholz: An unpublished Sixth Circuit decision reasoning that a doctor’s failure to adjust after learning of an overdose death can show “wanton disregard” and knowledge of misuse/diversion. The panel “affirm[ed] that reasoning today,” effectively elevating the principle in a published opinion, while emphasizing a connection requirement.

Severance, jury instructions, cumulative error, and sentencing jurisdiction

  • United States v. Tocco, United States v. Carnes, United States v. Medlock, United States v. Ledbetter: Defined the high bar for severance—generalized spillover claims are insufficient absent compelling, specific, actual prejudice.
  • United States v. Sivils and United States v. Zalman: Reinforced that inflammatory evidence about a co-defendant does not automatically mandate severance.
  • United States v. Fischl: Rejected the notion that only mixed verdicts prove juror differentiation in joint trials.
  • United States v. Blanchard and United States v. Iwas: Supported de novo review for legal accuracy and validated instruction language closely tracking Ruan.
  • United States v. Mitchell and United States v. Severson: Explained deliberate ignorance as a method of proving knowledge, not a lowering of mens rea.
  • United States v. Warman and United States v. Underwood: Supplied the due process cumulative-error standard (combined harmless errors must still render trial fundamentally unfair).
  • United States v. Hall: Controlled the Rule 35 jurisdictional holding—district courts may correct a sentence only within 14 days after announcement; action outside the window is jurisdictionally barred.
  • United States v. Fields: Appeared in the standard-of-review debate about whether failing to renew severance at trial’s close triggers plain error; the panel assumed abuse-of-discretion review without resolving forfeiture.
  • United States v. Sherrill: Used to reject consideration of an unraised argument (failure to give a limiting instruction) as not properly before the court.

2) Legal Reasoning

a) Controlled-substance conspiracy after Ruan: subjective knowledge proved circumstantially

The court treated United States v. Ruan as controlling: guilt requires proof that the doctors actually knew their prescribing was unauthorized (not merely below a standard of care). It then relied on the extensive “pill mill” proof—extremely short visits, lack of screening/records, prescribing despite negative tests and intoxication, signing prescriptions for unseen patients, and awareness of diversion indicators—to conclude that a rational juror could infer subjective knowledge beyond a reasonable doubt. The court also emphasized conspiracy doctrine (United States v. Stanton): the government need not prove each defendant completed substantive unlawful distributions if the agreement and knowing participation (including deliberate avoidance) were established.

b) Health care fraud conspiracy: duplicative testing and standing orders

Applying United States v. Bertram, the panel held Medicare billing based on knowingly omitting material facts can constitute fraud. Testimony that duplicative presumptive/confirmatory testing had “no need” and “no benefit” supported materiality and intent. Separately, Grenkoski’s failure to brief the “standing order” fraud theory resulted in forfeiture under Scott v. First S. Nat'l Bank.

c) Evidence law: Rule 403 as the main gatekeeper in a long, complex trial

Several challenges were resolved as classic Rule 403 judgments. The panel approved excluding evidence of the 2023 elimination of X-waiver caps because it risked juror confusion and had weak probative value for a conspiracy ending in 2018, echoing “timeline mismatch” reasoning from United States v. Campbell. The defendants’ constitutional “complete defense” argument failed under United States v. Blackwell because the exclusions were ordinary applications of evidentiary rules and unlikely to create reasonable doubt.

d) Hearsay and “effect on the listener” in proving notice, red flags, and conspiratorial context

The panel repeatedly treated statements about diversion and clinic improprieties as non-hearsay when used to show their effect on listeners (patients, staff, doctors) and to demonstrate notice/red flags. Under United States v. Churn and Gover v. Perry, that evidentiary purpose was relevant because knowledge and intent in pill-mill cases are often circumstantial—what clinicians were told, what they recorded, and whether they responded appropriately.

e) Patient death references: admissible in principle, but must be connected to the defendants

The most clearly articulated doctrinal development concerns overdose/death evidence. The panel approved the district court’s general rule: death evidence may be admitted if the government shows “some connectivity” between the death information and the defendants (and, by implication, their prescribing decisions and knowledge). It endorsed the rationale from United States v. Suetholz (itself drawing on United States v. Schwartz and United States v. Bourlier) that a physician’s failure to adjust after learning of an overdose death can evidence “wanton disregard” and knowledge of misuse.

At the same time, the panel found the district court erred in application: a witness’s stray mention (“Two people died”) was not later connected to the defendants, and no limiting instruction was given. The error was harmless because the trial included other death-related evidence (unchallenged on appeal) and the overall proof was strong.

f) Joint trial management: severance and limiting instructions

The panel applied the Sixth Circuit’s strong preference for joint trials. Under United States v. Medlock and United States v. Ledbetter, McFarlane’s “spillover” concerns were too generalized; the panel relied on limiting instructions and the ordinary reality that some evidence will be defendant-specific (United States v. Martinez (1970)).

g) Mens rea instructions: tracking Ruan and preserving deliberate-ignorance doctrine

The controlled-substance instruction required proof that each defendant knew prescriptions were not issued for legitimate medical purpose in the usual course—language the panel viewed as essentially Ruan verbatim and consistent with United States v. Iwas. The deliberate-ignorance instruction, including the “medically unnecessary” concept for urine testing, was upheld as a permissible way to prove knowledge (not a replacement for it), consistent with United States v. Bauer, United States v. Stanton, United States v. Anderson, and United States v. Campbell.

h) Rule 35: jurisdiction depends on timely court action, not merely timely filing

Citing United States v. Hall, the panel held the district court properly dismissed Grenkoski’s Rule 35 motion for lack of jurisdiction because the court did not act within 14 days of sentence announcement, even though the motion was filed on day 14.

3) Impact

  • Patient-death/overdose evidence (published endorsement with a limiting principle): The decision is likely to be cited in future Sixth Circuit pill-mill prosecutions for a two-part proposition: (i) death/overdose evidence can be probative of knowledge and wanton disregard, and (ii) trial courts should require a defendant-specific “connectivity” foundation and should consider limiting instructions to reduce unfair prejudice.
  • Post-conspiracy regulatory change evidence: The opinion strengthens district courts’ discretion to exclude later regulatory shifts (like the X-waiver repeal) as confusing and weakly probative—especially when offered to reframe earlier culpability.
  • Defense strategy after Ruan: The case underscores that defendants rarely prevail by arguing the government failed to show subjective knowledge where the record includes pervasive red flags, financial incentives, documentation irregularities, and testimony indicating awareness (including admissions like McFarlane’s “pill mill” characterization).
  • Rule 35 practice point: Litigants must account for the court’s inability to rule outside 14 days; filing on day 14 may be functionally inadequate if the court cannot act in time.

Complex Concepts Simplified

  • “Pill mill”: A clinic that appears medical but mainly exists to sell prescriptions (often cash-based), with minimal examination and high-volume controlled-substance prescribing.
  • “Authorized” prescriptions under the Controlled Substances Act: Federal regulations treat prescriptions as authorized only if issued for a legitimate medical purpose in the usual course of professional practice.
  • Ruan subjective mens rea: It is not enough that a “reasonable doctor” would know the conduct was improper; the government must prove the doctor actually knew (or, via deliberate-ignorance theory, consciously avoided knowing) the prescriptions were unauthorized.
  • Rule 403 (unfair prejudice): Relevant evidence can still be excluded if it risks misleading the jury or provoking an improper emotional reaction that substantially outweighs its value.
  • Hearsay vs. “effect on the listener”: An out-of-court statement is hearsay only if offered to prove it was true. If offered to show someone heard it and reacted (e.g., doctors were put on notice of diversion), it can be admitted for that non-truth purpose.
  • Deliberate ignorance instruction: The jury may infer knowledge if a defendant intentionally avoided confirming an obvious fact; it is not permission to convict for negligence.
  • Severance: Separate trials are granted only when a joint trial causes concrete, specific unfairness that limiting instructions cannot cure.
  • Harmless error: Even if the trial court made a mistake, the conviction stands if the mistake likely did not affect the verdict.
  • Rule 35 (14-day window): The district court must correct a sentence within 14 days of announcing it; if the court acts later, it lacks jurisdiction.

Conclusion

The Sixth Circuit affirmed sweeping pill-mill-related conspiracy convictions and, in doing so, applied established post-Ruan mens rea doctrine, conventional evidentiary standards, and the circuit’s strong preference for joint trials. Its most notable contribution is a published endorsement of the principle that patient death/overdose evidence can be probative of knowledge and disregard in controlled-substance cases—but only with a defendant-specific “connectivity” foundation, reinforcing both the evidentiary power and the prejudicial risk of such proof in future prosecutions.