In what two appellate attorneys call a “rare” decision, the 5th U.S. Circuit Court of Appeals reversed the conviction of a Houston doctor accused of defrauding patients by telling them she was injecting them with Botox when she actually gave them a substance not approved by the Food and Drug Administration (FDA). The opinion is unusual, the lawyers say, because the 5th Circuit reversed the conviction based on the trial court’s evidentiary rulings.
On March 23, a three-judge panel of the 5th Circuit concluded in United States v. Rothenberg that the district court abused its discretion in admitting testimony about an article discussing an incident in which “somebody in Florida had been hurt” by botulinum toxin type A (BTA) made by a company different than the company from which Dr. Gayle Rothenberg obtained BTA. The panel also concluded that the district court erred in allowing Chad Livdahl, head of Toxin Research International Inc. (TRI), the company from which Rothenberg purchased BTA, to give “irrelevant, prejudicial and potentially confusing testimony” while dressed in prison garb. According to the government’s Oct. 30, 2008, brief to the 5th Circuit, Livdahl was convicted of conspiracy, fraud and misbranding. In 2006, U.S. District Judge James L. Cohn of the Southern District of Florida sentenced Livdahl, who had entered a guilty plea, to nine years in prison.
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