Judge Rules Rx Records Can Be Used Against Richard Johns

Dr. Richard Johns of Practice Management Services Inc. of Little Rock.

Richard Johns, the suspended Little Rock doctor charged with fraudulently distributing painkillers, knew his prescriptions were being recorded in a state database and can’t now keep them from being used as evidence against him, U.S. District Judge Brian Miller ruled this week.

Miller’s denial of Johns’ motion to suppress evidence collected under a search warrant issued to a Lonoke County investigator two years ago does not bode well for his separate motion to have his seven-count indictment dismissed completely. Miller had not ruled by Thursday morning on that or on a motion to delay Johns’ trial, which is scheduled to start Jan. 23.

Federal prosecutors have strenuously objected to the motion to dismiss the charges, one of which accuses Johns of participating in a drug-peddling conspiracy that resulted in the death of a 25-year-old Cabot man, Curtis Norris. Prosecutors have not objected to the defense’s attempt to delay the trial.

Miller’s order said Johns didn’t even have standing to object to the use of data from the PMP — the Arkansas Prescription Drug Monitoring Program — since the records are actually those of the pharmacies filling the prescriptions rather than the doctors’ own medical records.

Miller also ruled that the search warrant issued to Det. Clint Eifling of the Lonoke County Sheriff’s Office was based on sufficient probable cause and wasn’t overly broad.

In a sworn affidavit, Eifling said he had interviewed Norris’ girlfriend, Marissa Scroggins, and his brother, Eric Jones, and both said Johns prescribed the oxycodone that Norris “shot up” before his death on Nov. 8, 2014.

Jones also said that his brother had no injuries requiring painkillers, according to Eifling’s affidavit. Instead, Jones told Eifling that Marissa Scroggins’ father, David Scroggins, would pay Norris $400 to get a prescription from Johns so that David Scroggins could resell the pills.

Based on those interviews, Eifling got a search warrant for phones belonging to Norris and Scroggins. Text messages found on the phones “support the idea that D. Scoggins is enlisting individuals to use Dr. Richard Johns to have fraudulent prescriptions filled that are in turn given to D. Scroggins to sell on the illicit market,” Eifling wrote in an affidavit seeking a search warrant for the PMP records.

The warrant requested PMP data on all prescriptions written by Johns between Jan. 1, 2014, and the date of the affidavit on Dec. 1 of that year. It also sought PMP records for all prescriptions written to Norris, Jones, Marissa Scroggins, David Scroggins and others identified by name.

Johns’ defense team has complained that Eifling’s request should have been more narrow, in part to protect patients’ confidential medical history. But Miller pointed out that the PMP doesn’t collect all types of prescriptions in the first place, only those for certain “schedule” drugs that have a high risk of being abused.

“It is true, and certainly worth noting, that Eifling could have limited the search to prescriptions for a particular drug, such as oxycodone,” the judge wrote. But because the PMP only tracks prescriptions for controlled substances, the scope of the search warrant was “sufficiently limited,” Miller concluded.

In his affidavit seeking the search warrant, Eifling did not suggest that Johns knowingly participated in a fraud. But after a six-month investigation, the doctor was arrested and charged in Lonoke County with 187 counts of prescription drug fraud. Those state charges were dropped in September 2015 after federal prosecutors indicted Johns and 18 other people, including Marissa Scroggins and David Scroggins.

Johns’ has also argued that his defense has been unfairly hampered by the state law that restricts access to the PMP data to law enforcement officials. Johns’ defense attorneys, Bud Cummins and Paul James, say they need access to the prescription database in order to determine whether any other physician might have prescribed the pills that caused Norris’ death.

In response, the prosecutor, Assistant U.S. Attorney Anne Gardner, said Johns’ defense already has access to the PMP data for prescriptions written to Norris and the others that were obtained under Eifling’s search warrant.