The Pain Relief Network

By Adam Liptak
Nov 1, 2010
The New York Times

Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.

“It’s a profound problem,” said the lawyer, Paul M. Sherman, with the Institute for Justice. “We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.

The Institute for Justice does not represent Ms. Reynolds, and it is not a party in the case. Its submission, made with a second libertarian group, Reason Foundation, was an amici curiae — or friends of the court — brief. It relied only on publicly available materials.

But it was sealed by the United States Court of Appeals for the 10th Circuit, in Denver, citing grand jury secrecy rules. The court then denied the groups’ motion to unseal their own brief. That ruling itself is sealed, too, but I have seen parts of it.

Among the reasons for keeping the brief secret, the court said, was that the groups’ goal “is clearly to discuss in public amici’s agenda.” Well, yes.

The brief paints an unflattering picture of the United States attorney’s office in Kansas, which may have overreacted to Ms. Reynolds’s adamant public defense of two medical professionals, Stephen J. Schneider and his wife, Linda K. Schneider, who were indicted in 2007 for illegally distributing prescription painkillers to patients who overdosed on them.

In 2008, Tanya J. Treadway, a federal prosecutor, asked the judge in the Schneiders’ case to prohibit Ms. Reynolds, who is not a lawyer and had no formal role in the case, from making “extrajudicial statements.” In the vernacular, Ms. Treadway asked for a gag order.

Judge Monti L. Belot of Federal District Court in Wichita denied that request, saying Ms. Treadway was seeking an unconstitutional prior restraint on speech.

Then Ms. Treadway tried another tack. She issued a sprawling grand jury subpoena to Ms. Reynolds.

It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”

“It was a nuclear bomb of a subpoena,” Ms. Reynolds said in an interview from Santa Fe, N.M., where she lives. “I was viscerally terrorized. I was genuinely physically frightened.”

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”

Ms. Treadway did not respond to a request for comment, and a spokesman for her office declined to comment.

Ms. Reynolds, represented by the American Civil Liberties Union, moved to quash the subpoena and lost. When she refused to comply with the court’s order, Judge Julie A. Robinson of Federal District Court in Topeka imposed fines on Ms. Reynolds and her group, the Pain Relief Network, of $200 each a day.

“By early January, I was completely destitute,” Ms. Reynolds said. “My organization was ruined, and so was I.”

In secret proceedings, the 10th Circuit affirmed Judge Robinson’s rulings.

After paying almost $40,000 and facing the possibility of jail time, Ms. Reynolds folded, turning over thousands pages of documents. Judge Robinson refused to refund the fines.

The case has now reached the Supreme Court, and the justices are likely to decide next week whether to hear it. The publicly available version of Ms. Reynolds’s petition seeking review is studded with blacked-out passages.

Grand jury secrecy often protects important interests, notably the reputations of people under investigation. But Ms. Reynolds’s lawyer, Robert Corn-Revere of Davis Wright Tremaine in Washington, said the usual rules had been turned upside down in this case.

“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”

Ms. Reynolds is in her way quite effective. She seems to have the ability to drive the judicial system nuts.

When Judge Belot sentenced the Schneiders to 30 years in prison last month, he digressed to take a swipe at Ms. Reynolds and her group, though he did not get its name quite right.

Judge Belot said he hoped the prison sentences would “curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network, a ship of fools if there ever was one.” He added that the group and its leaders were “stupid” and “deranged.”

Ms. Reynolds said she could live with the insults. The grand jury subpoena was another matter.

“We absolutely need voices speaking out,” she said. “I’m afraid of the chilling effect this will have on activism in general.”

http://www.nytimes.com/2010/11/02/us/02bar.html?_r=1

Oct 28, 2010
By: Jacob Sullum
Reason.com

Last week Kansas physician Stephen Schneider and his wife, Linda, who worked as a nurse in his practice, were sentenced to 30 and 33 years, respectively, for painkiller prescriptions the Drug Enforcement Administration considered inappropriate. Also last week, the Supreme Court let Siobhan Reynolds, a pain treatment activist who argued that the Schneiders were railroaded, share the petition (PDF) in which she seeks a hearing for her First Amendment challenge to a vindictive intimidation campaign waged against her by Tanya Treadway, the assistant U.S. attorney who prosecuted the Schneiders. Reynolds, founder of the Pain Relief Network (PRN), needed permission to share her own Supreme Court petition because the entire case—including the district court decision, the appeals court ruling upholding it, the briefs submitted by both sides, and even the amicus briefs filed in support of Reynolds—has been sealed. Hence my headline exaggerates only slightly: This is a First Amendment case in which all the key documents are secret.

The case has been sealed because it grew out of a grand jury investigation of Reynolds that Treadway instigated because she was irritated by Reynolds’ advocacy on behalf of the Schneiders. Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, “Dr. Schneider never killed anyone.” This investigation followed Treadway’s unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders’ case.

Reynolds unsuccessfully challenged the subpoenas on First Amendment grounds in the U.S. District Court for the District of Kansas, then appealed that decision to the U.S. Court of Appeals for the 10th Circuit. At that point, the Reason Foundation (which publishes this website as well as Reasonmagazine) and the Institute for Justice filed an amicus brief on her behalf. The 10th Circuit ruled against Reynolds in April, and she was hit with daily contempt fines that she and her organization paid until they ran out of money last summer, at which point she surrendered the material that Treadway wanted rather than go to jail. Now she is asking the Supreme Court to clarify how the First Amendment constrains grand jury subpoenas, including the standards for determining when an investigation is a good-faith effort to find evidence of a crime (as opposed to, say, a vendetta against a critic) and when it is permissible to demand material that implicates freedom of speech. The petition, prepared by First Amendment specialist Robert Corn-Revere, also asks the Court to consider the extraordinary secrecy surrounding this case, which has proceeded all the way to the highest court without a published opinion or publicly available briefs.

This level of secrecy, which the Associated Press says “has alarmed First Amendment supporters” who see it as “highly unusual” and “patently wrong,” is clearly not justified by the need to protect the confidentiality of grand jury proceedings. The 10th Circuit decided to seal even the Reason/I.J. amicus brief, which is based entirely on publicly available information. More generally, the gist of the case could have been discussed without revealing grand jury material, as Reynolds’ Supreme Court petition shows. Although the court-ordered redactions make the 10th Circuit’s reasoning as described in the petition hard to follow at times, the details generally can be filled in with information that has been reported in the press (which shows how silly the pretense of secrecy is). Furthermore, one of the main justifications for grand jury secrecy—that it protects innocent people who are investigated but never charged—does not apply in a case like this, where the target of the investigation wants more openness and it’s the government that is trying to hide information. As Corn-Revere argues, such secrecy turns the intended role of the grand jury on its head, making it an instrument of oppression instead of a bulwark against it.

I discussed Treadway’s vendetta against Reynolds in a 2009 column. I noted the Schneiders’ convictions in June. I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!

http://reason.com/blog/2010/10/28/a-first-amendment-case-you-can

Sept 22, 2010

By LINDA DEUTSCH

The Associated Press

LOS ANGELES — A pain-management doctor testified Wednesday that Anna Nicole Smith was not a drug addict, rebuffing a prosecutor who suggested the model’s prescriptions for 1,500 pills in a single month amounted to an addiction.

“It speaks to potential danger and risk to the patient, but it doesn’t speak to addiction,” Dr. Perry G. Fine told jurors in Smith’s drug conspiracy trial.

Fine, who testified as a defense witness, said the risk might be toxicity if she took all of the drugs, but added that Smith’s medical records showed “no indication of actual harm.”

The definition of an addict is central to the case against Dr. Sandeep Kapoor, Dr. Khristine Eroshevich and Howard K. Stern, who are accused of providing drugs to an addict. They are not charged in causing Smith’s drug overdose death.

Stern, who was the late celebrity model’s boyfriend, and Smith’s two doctors, Kapoor and Eroshevich, have pleaded not guilty.

Fine said he believed Smith had a high tolerance for drugs but was not addicted. He said medical records showed Smith had suffered fractured ribs and was seeking relief from chronic pain.

“She woke up and functioned from day to day,” Fine said. “… She was in recovery from rib fractures, and anyone’s function would be highly limited.”

Deputy District Attorney David Barkhurst had asked Fine whether Smith’s prescriptions of 1,500 drug tablets in June 2004 might help determine if Smith was an addict.

Fine agreed with Superior Court Judge Robert Perry that the 1,500 pills cited were “a lot of drugs,” but said it was “antiquated thinking” to equate the number of pills with addiction. The pills included various opiates, muscle relaxants and other drugs.

“The disease of addiction is viewed as largely present in genetic factors, and it takes social and environmental factors to bring it out,” he said.

Fine said a typical addict would be driven to compulsive drug use to seek a sense of euphoria, but that he reviewed many records of Smith’s medical treatment and saw no mention of her seeking euphoria. He said he saw many reports of her seeking relief from pain.

 http://www.washingtonpost.com/wp-dyn/content/article/2010/09/22/AR2010092204067.html

Aug 22, 2010
By: Roxana Hegeman
The Associated Press

WICHITA, Kan. – Siobhan Reynolds has spent years crusading on behalf of chronic pain patients – testifying before Congress, suing government drug regulators and speaking out against what she believes is a government crackdown on prescription painkillers that has left many patients needlessly suffering.

But as the case of a Kansas physician linked to 68 overdose deaths wraps up in a federal courtroom here, the fiery patient advocate has found herself in an uncomfortable new role: fighting a secret federal investigation targeting her over a possible conspiracy to obstruct justice for her involvement in that case.

Reynolds, the president of the Pain Relief Network, championed the defense of Dr. Stephen Schneider and his wife, Linda. The Haysville couple were convicted of unlawfully writing prescriptions leading to death, health care fraud and money laundering. Federal prosecutors want the couple, who face up to life in prison, to forfeit $4.2 million plus real estate and other assets.

Reynolds has become a leading voice for pain-relief advocates after the 2003 arrest of Dr. William Hurwitz, whose pain management clinic in a suburb of Washington, D.C. once treated Reynolds’ late husband, Sean Greenwood. He suffered from a painful connective tissue disorder that has been inherited by the couple’s son. After Hurwitz’s arrest, the family struggled to find another physician willing to prescribe for Greenwood high doses of painkillers. He died in 2006.

Her initial refusal to turn over e-mails and other subpoenaed documents related to the Kansas case has already led to a contempt citation and cost Reynolds and her nonprofit group $36,500 in fines before the money ran out. Faced with imminent jailing for contempt, Reynolds relented and turned over some 4,000 pages of subpoenaed material three weeks before the Schneiders’ trial.

“I am being beaten up in the dark by the government,” Reynolds said. “They have taken everything I have. They have coerced me into violating all kinds of oaths I had held firm. But when push came to shove at the very end here, I decided I would be more valuable to the Schneiders and this country out than in.”

Assistant U.S. Attorney Tanya Treadway declined to discuss the grand jury investigation, which has been vaguely referenced numerous times in public documents filed in the Schneider case. The doctor’s defense has argued in filings prosecutors have used the separate grand jury proceedings to improperly get defense work product in the Schneider case.

The government tried unsuccessfully in 2008 to get the judge overseeing the Schneider case to issue a gag order against Reynolds. In court documents, the government has portrayed Reynolds as having a “sycophantic or parasitic relationship” with the couple and claimed she is using the Schneiders to further PRN’s political agenda and her personal interests.

After the Schneiders’ arrest in 2007, Reynolds rallied his patients with petitions and demonstrations in a losing fight to keep the clinic open. The 49-year-old Santa Fe, N.M., woman helped the family line up attorneys experienced in physician prosecutions and provided the defense team with experts and information gleaned from her nine years of advocacy work.

To the chagrin of prosecutors, Reynolds also put up a highway billboard last year proclaiming: “Dr. Schneider never killed anyone.” Weeks after it went up, she got a subpoena seeking in part documents related to the sign.

“I put the billboard up to try to reawaken Wichita to the possibility that Dr. Schneider was entirely innocent – and I really thought it was within my First Amendment rights to do that,” Reynolds said.

Prosecutors alleged in a 2008 court document that after the Schneider clinic was closed Reynolds told a distraught pain patient that, if she was going to commit suicide because painkillers were no longer available, to “make it count” by doing it publicly.

Reynolds said many patients have told her they wanted to commit suicide and begged her to help them so it wouldn’t happen. She said that is why she tried to keep the Schneiders’ clinic open.

“PRN worked so hard, spent so much money to prevent that kind of thing,” Reynolds said. “Might I have said in a dark moment something like ‘well, make it count,’ I think I did, but the truth of the matter is I love people very much and I have spent every dime I ever had in my entire life to fight for their cause.”

She sees herself as a “theater director” – drawing upon her personal loss and her education in film to tell the story of chronic pain patients.

But malpractice attorney Larry Wall, who represents the families of several dead Schneider patients, said Reynolds has diverted attention from the true victims: “She has tried to concoct a phony excuse for a pill mill doctor and his actions.”

http://www.kansas.com/2010/08/20/1455552/doctors-advocate-targeted-in-grand.html

FOR IMMEDIATE RELEASE
Jul 9,2010

Press Conference and Argument: US Federal CourtSeattle, Washington
When: Monday, July 12th 2010 at 1:00pm

PRN TAKES ON THE STATE OF WASHINGTON
National Advocacy Group Working to End The Nationwide Witch hunt of people in pain and the doctors who treat them.

Responding to what doctors and patients are calling a dangerous crackdown on people with chronic pain, Pain Relief Network is seeking the protection of the courts, hoping to have the deadly disease of chronic pain declared a disability under the Americans With Disabilities Act.

Siobhan Reynolds, President of the Pain Relief Network and defender of people in pain sees Washington State as the patient’s last real opportunity to stop the War On Drugs from completely destroying a free and voluntary doctor/patient relationship, “Between Obamacare, The War On Drugs and the media’s rapacious focus on celebrity addiction, people in pain who merely want to live their lives and take care of their families are instead being herded like cattle into “safety programs’ which are anything but safe.” She goes on to say, “despite Washington State’s contentions that they are merely looking out for the welfare of citizens in pain, the data does not demonstrate that a public health crisis in overdose and addiction even exists. What the data does say is that some 25 to 33 percent of the American people suffer from the deadly disease of chronic non- cancer pain.”

Laura Cooper Esq. General Counsel for PRN and the lawyer who will be arguing on behalf of the doctor/patient relationship in Washington State from her wheel chair said, “Physician assisted suicide is now legal in Washington State but pain treatment is no longer supported in the law. So it’s ok for doctors to prescribe Controlled Substances to kill us but not to allow us to live. The courts have said they will step in if such a state of affairs comes to characterize pain treatment in the US and I am afraid that we are here.”

A recent article in Time Magazine explains the groundlessness of the state’s claims that a ‘wave of deaths by opioids’ necessitated this crackdown. According to one of the top medical experts in the world, the science around cause of death by opioids in people who were otherwise critically ill is far from exact. Dr. Steven Karch called the acceptance of the state’s word on the cause of death when pain medicines are present, “a giant miscarriage of justice.” He goes on to explain, “You can die from a drug and you can die with a drug, When you have four orders of magnitude separating either end of the curve, many of these deaths may not have to do with drugs at all.” http://www.time.com/time/health/article/0,8599,1996831,00.html?xid=rss- topstories#ixzz0tCmyzIMj