Case 3:17-cr-00027-MPS Document 62 Filed 02/01/17 Page 1 of 20

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,

v.

Case No. 3:16-mj-437 (SALM)

JEFFREY PEARLMAN,
Defendant

SUPPLEMENTAL BRIEFING TO REMOVE DRUG TESTING
CONDITION

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................3
I.

MR. PEARLMAN SUFFERS FROM SERIOUS CHRONIC MEDICAL
CONDITIONS THAT CAUSE HIM SEVERE PAIN ........................................3

II.

MEDICAL MARIJUANA BECAME A SAFE ALTERNATIVE FOR OPIOIDS
THAT GREATLY ALLEVIATED MULTIPLE MEDICAL ISSUES ....................9

III.

THERE ARE NO MEDICALLY ADVISABLE ALTERNATIVES THAT WILL
PROVIDE SUFFICIENT RELIEF TO MR. PEARLMAN’S CONDITIONS ........12

CONCLUSION........................................................................................................17

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INTRODUCTION
On October 28, 2016, Defendant Jeffrey Pearlman moved this Court to
remove drug testing from his conditions of release while on bail. Requiring Mr.
Pearlman to be drug tested would effectively bar him from being able to continue
to use medical marijuana, which was lawfully prescribed to him by a doctor under
the State of New Jersey’s medical marijuana program to treat various chronic
medical conditions. Prior to his enrollment in New Jersey’s medical marijuana
program, Mr. Pearlman successfully worked with his doctor to break his
dependency on opioids. Mr. Pearlman had become completely reliant on addictive
opioids for years to manage his persistent pain. If Mr. Pearlman is now denied
access to medical marijuana treatments while on bail, he would likely be forced to
revert to the use of these opioids again – and face the renewed threat of addiction
as well as harmful side effects – to manage his pain. A return to opioids carries
obvious health risks to Mr. Pearlman.
Mr. Pearlman submits this supplemental memorandum, at the request of the
Court, to: (1) provide further details concerning his medical history; (2) explain
why no meaningful alternatives to medical marijuana treatments (other than opioid
use) exist for him; and (3) provide medical support for the position that treatment
with medical marijuana is safer for Mr. Pearlman than a reversion to potentiallyaddictive opioid use.

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In Mr. Pearlman’s case, the imposition of a drug testing condition is not
required under the Bail Reform Act, which seeks only to impose the “least
restrictive” conditions to ensure the defendant’s presence at future Court
appearances and the safety of the community. Further, the imposition of a drug
testing condition in this case would impair Mr. Pearlman’s ability to participate
meaningfully in his defense – by forcing him to revert to the use of mind-clouding
opioids – and serve as an undue punishment in advance of any adjudication of his
guilt or innocence. In light of the arguments previously presented to the Court and
supplemented by the facts and arguments in this memorandum, the Defendant
submits that any drug testing condition imposed upon him that would prevent him
from treatment and participation in New Jersey’s medical marijuana program is
unjust as a matter of equity and unconstitutional as a matter of law.
ARGUMENT
I.

MR. PEARLMAN SUFFERS FROM SERIOUS CHRONIC MEDICAL CONDITIONS
THAT CAUSE HIM SEVERE PAIN
Mr. Pearlman suffers from a host of chronic medical conditions, most of

which derive from a severe injury to his spine that he suffered in a car accident
over twenty years ago. As a consequence of these ailments, Mr. Pearlman suffers
extended bouts of extreme pain and discomfort. At the request of the Court we
have compiled, from available documents and medical records, a timeline of Mr.

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Pearlman’s medical history during the time period relevant to the criminal
complaint.
A.

2013 - 2015: Treatment by Dr. Patharkar

In 2013, Mr. Pearlman was under the treatment of Dr. Manoj Patharkar for
pain management, although he also saw his primary care physician, Dr. Andrei
Terentiev. Attached as Exhibit 6 is Dr. Patharkar’s report from February 26 th,
2013, which noted that Mr. Pearlman’s range of motion was limited in all
directions in the lumbar spine and diagnosed Mr. Pearlman with a lumbar
joint/ligament sprain, lumbar herniated discs, and lumbar radiculopathy (i.e.
damage to the nerve which can cause both local pain as well as radicular pain in an
extremity - in this case, Mr. Pearlman’s leg). Ex. 6; see also Ex. 1 (chart of
medical treatment). Dr. Patharkar’s diagnosis was in part based on a lumbar MRI
that showed the disc herniations, and a grade one anterolisthesis at L5/S1 (i.e.
where the L5 vertebrae slipped out of line with the S1 vertebrae, pinching the
nerve). Ex. 6; Ex. 18 (2/2/13 lumbar spine MRI report). Dr. Patharkar’s
prescribed course of treatment consisted of continuing Mr. Pearlman on a regimen
of medications and follow up visits. Ex. 6.
During this treatment period, Dr. Patharkar prescribed for Mr. Pearlman
various opiate-based pain relievers, including oxycodone (Percocet), and
oxycontin, as well as other medications for a variety of ailments including anxiety

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and gastro-intestinal problems. Ex. 2 (summary of Mr. Pearlman’s medications
over time). In or about August 2013, Dr. Patharkar also began prescribing Subsys
for Mr. Pearlman, a very powerful sublingual fentanyl spray that provides almost
instantaneous pain relief.1 Finally, to treat Mr. Pearlman’s mental health issues,
Dr. Patharkar prescribed antidepressant drugs and anxiety medication in 2015.
Treatment with Dr. Patharkar continued from 2013 until the Fall of 2015,
during which time, in addition to the medications described above, Dr. Patharkar
administered a lumbar epidural steroid injection on Mr. Pearlman. During this
procedure, steroids are injected near the spinal nerve to temporarily reduce pain
and inflammation. Ex. 7 (6/3/14 injection report by Dr. Patharkar). The injection
provided some relief to Mr. Pearlman, but the relief proved to be temporary.
Rather, during this time period, Mr. Pearlman turned with increasing frequency to
the prescribed opioids and the use of Subsys; building up to a point where he was
reliant on taking excessive quantities of the drugs to find relief.
B.

Late 2015 – Mid 2016: Treatment by Dr. Freedman

In the Fall of 2015, Mr. Pearlman began treatment with a pain specialist, Dr.
Gordon Freedman. Dr. Freedman continued to prescribe large doses of opioids to
manage Mr. Pearlman’s pain, with the exception of Subsys that Mr. Pearlman
could no longer afford because he had been terminated by Insys (which had
1

As Your Honor is aware, Subsys is the fentanyl spray manufactured by Insys, Mr. Pearlman’s employer during the
time period relevant to the criminal complaint.

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subsidized his Subsys costs). Dr. Freedman also continued to administer spinal
injections to Mr. Pearlman, providing one at the end of 2015, and three in 2016. 2
Ex. 1. On May 25, 2016, Dr. Freedman attempted a nerve ablation (i.e. where the
nerve is burned in an attempt to disrupt pain signals) with the hope that it might
provide more lasting relief than the temporary effect of an injection. Unfortunately
for Mr. Pearlman, while the ablation provided temporary relief, his pain continued
and therefore he remained reliant on his prescribed regimen of Oxycodone,
Oxycontin, and drugs for anxiety and depression.
C.

July 2016 – Present: Treatment By Dr. Sen, Dr. Diakolios, and
Dr. Howard

In approximately July 2016, Mr. Pearlman began treatment with Dr. Surjya
Sen. Even before his first visit with Dr. Sen, however, Mr. Pearlman met with Dr.
Constantine Diakolios to discuss weaning himself from high dosages of opioid
drugs on which he had become dependent. Ex. 8 (7/18/16 notes by Dr. Sen).
During July and August of 2016, with guidance from Dr. Diakolios, Mr. Pearlman
courageously attempted to liberate himself from his reliance on opioids. The path
to break his addiction was painful, both physically and psychologically. The
withdrawal process began with a course of the drug Suboxone and eventually led
to complete opioid withdrawal. During this process Mr. Pearlman barely slept and
2

The dates of these injections are based on insurance reimbursement forms, which do not indicate the type of
injection. While the initial injections are likely epidural steroid injections, the injections preceding the ablation are
likely medial branch blocks, which would be common before an ablation. In all cases, however, pain relief is
delivered to the offending nerve.

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suffered sustained periods of intense pain. He wrestled with anxiety and
depression while his body fought to rid its dependence on opioid-based pain
killers. His withdrawal symptoms lasted for more than a month. As discussed
infra, this led Dr. Sen to refer Mr. Pearlman to Dr. Howard for a medical marijuana
evaluation with the hope that it could provide pain relief and help with Mr.
Pearlman’s digestive and mental health issues.
Dr. Sen also ordered additional MRIs, which made it apparent that Mr.
Pearlman’s medical problems were even greater than previously diagnosed. On
August 1, 2016, in addition to the anterolisthesis at L5/S1 (which the radiologist
described now as grade 1/2), a lumbar MRI showed disc desiccations and bulges at
multiple levels in the spine. Ex. 9 (8/1/16 MRI report). Dr. Sen thereafter
diagnosed Mr. Pearlman with spondylosis (i.e. spinal degeneration), multiple
herniations with radiculopathy, and severe stenosis (i.e. where the open spaces of
the spinal column are narrowed, most often causing radicular pain). Ex. 10 (8/8/16
examination by Dr. Sen). Dr. Sen also ordered a thoracic MRI, which evidenced
four additional herniated discs at T2/T3, T7/T8, T8/T9, and T9/T10. Ex. 12
(10/1/16 MRI report). This led Dr. Sen to add yet another diagnosis: thoracic
herniation with radiculopathy. Ex. 13 (10/5/16 examination by Dr. Sen).
Mr. Pearlman’s pain consistently rated as a 6/10 or more during every doctor
visit – whether it be locally in his spine or radiating to his leg. Ex. 6 (2/26/13

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examination by Dr. Patharkar) (pain is 8-9 out of 10); Ex. 8 (7/18/16 examination
by Dr. Sen) (local pain is 2, but radiating pain to leg is 10); Ex. 10 (8/8/16
examination by Dr. Sen) (pain is 6/10); Ex. 11 (9/21/16 examination by Dr. Sen)
(pain is 6/10); Ex. 13 (10/5/16 examination by Dr. Sen) (local pain is 2, but
radiating pain to leg is 7).
In short, before being recommended for medical marijuana treatment, it was
clear that Mr. Pearlman suffered from a multitude of spinal, psychological, and
gastrointestinal issues. Prior doctors had attempted injections (which provided
only temporary relief), a nerve ablation (which did not alleviate his pain for any
extended period of time), and extremely high doses of opioids (in addition to
antidepressants, among other medications). As indicated in our initial brief, before
medical marijuana, the opioids controlled Mr. Pearlman’s life. There are serious
risks in taking such high levels of opioids and they carried with them significant
side effects including cloudy thinking, fatigue, lack of focus, and other physical
issues such as rotting teeth.
Finally, each medication that Mr. Pearlman took and every procedure that
his doctors performed incurred substantial costs. Most notably, Mr. Pearlman was
charged $1010.85 for his monthly dose of Oxycontin. Ex. 15. 3 This pales in
comparison, however, to the cost of just one epidural steroid injection ($13,376) or
3

Note that Dr. Jennifer Goonetilleke, who signed this prescription, works with Dr. Freedman.

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one nerve ablation ($18,151). Exs. 16, 17. Mr. Pearlman currently has health
insurance through a COBRA from his prior employer. Once Mr. Pearlman’s
COBRA terminates, he does not expect to have an ability to pay for the continuous
injections and/or more expensive treatment options. In contrast, one month of
medical marijuana costs approximately $500 – a still difficult, but much more
manageable cost.
II.

MEDICAL MARIJUANA BECAME A SAFE ALTERNATIVE TO OPIOIDS THAT
GREATLY ALLEVIATED MULTIPLE MEDICAL ISSUES
On August 8, 2016, due to Mr. Pearlman’s long history of pain and his

courageous decision to stop using opioids, Dr. Sen referred Mr. Pearlman to Dr.
Brandon Howard, an internist in Hackensack, NJ, to see if he was a candidate for
medical marijuana. Dr. Howard examined Mr. Pearlman on August 18, 2016, and
determined that medical marijuana could greatly benefit Mr. Pearlman. Ex. 4
(1/19/17 report summarizing 8/18/16 notes); Ex. 19 (certification). With Dr.
Howard’s certification, Mr. Pearlman thereafter obtained his New Jersey medical
marijuana card. Ex. 5.
Attached as Exhibit 3 is a letter submitted by Dr. Howard reflecting his
determination that medical marijuana is a vital treatment for Mr. Pearlman. Ex. 3.
Dr. Howard describes how Mr. Pearlman was prescribed narcotics, other drugs,
and injections, but “continues to suffer with back pain, radiculopathy, and
paresthesis, and muscle spasticity from herniated disks and nerve impingement.”
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Ex. 3. Dr. Howard notes that Mr. Pearlman “took it upon himself to undergo the
stress of withdrawal because he no longer wanted to be dependent upon opioids.”
Id. Dr. Howard stresses that surgery is not a pragmatic option because it would
involve multiple surgeries, multiple periods of recuperation between each one, and
even then “has limited efficacy long term, and is associated with many risks.” Id.
He ends his letter by requesting that this Court allow Mr. Pearlman to continue
taking medical marijuana:
Mr. Pearlman has demonstrated less pain overall, more mobility, more
mental focus, and less anxiety. This has had a dramatic effect on his
quality of life. He is currently more functional on medical marijuana
than he ever was on opioids and benzodiazepines. . . . Please permit
Mr. Pearlman to continue use of his current medical marijuana
prescription throughout his trial. It will permit him to function more
normally throughout the trial.
Id.
As described by Dr. Howard, the positive effect on Mr. Pearlman’s health
from taking medical marijuana is readily apparent. First and foremost, Mr.
Pearlman no longer takes opioids. At the zenith of his opioid use, Mr. Pearlman
was taking powerful oxycontin three times a day, oxycodone one to two times a
day, and 800 mcg of Subsys four times a day. The side effects of high-level, longterm opioid use can “interfere with long- and short-term memory,” and, more
seriously, “the death rate associated with opioid pain medication has increased
markedly.” Mot. to Remove Drug Testing Condition, at pp. 6-7 [Dkt. Entry No.

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36]. Both of Mr. Pearlman’s physicians have warned that a return to opioids is not
medically advisable. Ex. 11 (9/21/16 examination by Dr. Sen noting that Mr.
Pearlman should be kept off opiates); Ex. 4 (8/8/16 examination by Dr. Howard
noting that “returning to the use of narcotics and benzodiazeipines is not
recommended”). Medical marijuana has effectively replaced the dangerous
amounts of opioids that Mr. Pearlman had been taking for years without the serious
side effects.
Second, Mr. Pearlman’s mental health has greatly improved. Prior to Mr.
Pearlman’s decision to stop opioids, he was taking two to three different drugs for
pain (Oxycontin, Oxycodone, and, previously, Subsys), and had taken six different
drugs for his mental health (Xanax, Wellbutrin, Oleptro, Ambien, Effexor, and
Prozac). Today, Mr. Pearlman does not take Oxycontin or Oxycodone, no longer
needs any of the drugs for depression (Wellbutrin, Oleptro, Effexor, and Prozac),
and, while Mr. Pearlman used to take Xanax every day and Ambien every night, he
now only takes it as needed. Ex. 2. Mr. Pearlman’s thinking is clearer and more
focused, and is no longer impacted by the impairment of opioids. As described by
Dr. Howard, “[s]ince starting the medical marijuana program, Mr. Pearlman has
demonstrated less pain overall, more mobility, more mental focus, and less
anxiety.” Ex. 3.

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In short, medical marijuana has completely replaced all other pain
medications, and allowed Mr. Pearlman to cease antidepressants and take less
anxiety and sleep medication. His mental function has drastically improved from
when he was on opioids when his thought process was flawed and his thinking was
foggy. He is “[o]verall significantly better on MMP [medical marijuana program]
than traditional pain treatments [and] functions much better on MMP than with
traditional medications.” Ex. 4, at 3; Ex. 3 (noting that medical marijuana has
“dramatically improved his quality of life”). Most importantly, opioids, with all of
their dangerous side effects and health risks, are no longer the center of his life.
III.

THERE ARE NO MEDICALLY ADVISABLE ALTERNATIVES THAT WILL
PROVIDE SUFFICIENT RELIEF TO MR. PEARLMAN’S CONDITIONS
Mr. Pearlman and his doctors have attempted to alleviate his pain and other

medical conditions through a variety of methods: (1) physical therapy; (2)
injections; (3) nerve ablation; and (4) medications. Unfortunately, each has either
failed to give him lasting relief or is otherwise not sustainable.
First, Mr. Pearlman has attempted physical therapy multiple times over the
last twenty years. Unfortunately it has not provided any meaningful relief. See Ex.
6 (2/26/13 medical report from Dr. Patharkar) (“His past treatments include
physical therapy with no relief.”); Ex. 10, at 2 (8/8/16 medical report from Dr. Sen)
(noting that physical therapy has been tried for “couple of years (no help)”). Most
recently, Mr. Pearlman tried a course of physical therapy last Fall at the suggestion
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of Dr. Sen, but the therapy, again, did not provide any relief. Indeed, Mr.
Pearlman’s insurance company declined to pay for any additional physical therapy,
stating: “you have reached maximum benefit from the treatment you have been
receiving . . . Your evaluation findings are not improving. Using the same or
similar type of treatment is not likely to improve your condition. Treatment should
change or stop.” Ex. 14.
Second, epidural steroid injections (“ESIs”) have provided short-term pain
relief for Mr. Pearlman, but unfortunately the partial relief that is provided wears
off after 1-4 weeks. See Ex. 11 (9/21/16 medical report from Dr. Sen) (injection
provided “50% relief of pain for approximately 1 week, however his pain has
returned.”). Unfortunately, it is not medically sound to continuously receive
injections every week. Such injections normally can only be performed a few
times a year. See, e.g., Mayo Clinic: Back Pain, available at
http://www.mayoclinic.org/diseases-conditions/back-pain/expertanswers/epidural-steroid-injections/faq-20058277 (last accessed January 30, 2017)
(“Epidural steroid injections are usually limited to just a few a year because there’s
a chance these drugs might weaken your spinal bones and nearby muscles.”).
Finally, as with many of these treatments and drugs, the injections, which cost over
$10,000 for each procedure, will likely be cost prohibitive once Mr. Pearlman’s
COBRA runs out. Thus, while the injections have been useful, they are only

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temporary, provide only partial relief, can only be performed a limited number of
times, and it may not be possible to continue with them in the future.
Third, Mr. Pearlman had a nerve ablation, i.e. burning of the nerve believed
to be causing pain, but it unfortunately did not resolve his symptoms. His pain
levels remained fairly constant both before and after the ablation. Ex. 1. Ideally, a
nerve ablation is supposed to last longer than an injection, but it, too, is only
temporary. See Mayo Clinic: Radiofrequency Neurotomy, available at
http://www.mayoclinic.org/tests-procedures/radiofrequencyneurotomy/basics/results/prc-20013452 (last accessed January 30, 2017). In
addition, even if it were to provide relief, with so many levels of injury in the
lumbar and thoracic areas, nerves up and down Mr. Pearlman’s spine would have
to be ablated, which is not a viable option. Moreover, like injections, the cost is
prohibitive.
Finally, Mr. Pearlman has taken a number of medications throughout the
years, but none are viable replacements for medical marijuana. Returning to
opioids is simply not a medically advisable option for Mr. Pearlman. Ex. 11
(9/21/16 examination by Dr. Sen); Ex. 4 (examination by Dr. Howard). Two other
medications, Gabapentin and Lyrica, were also provided to Mr. Pearlman, but they
did not alleviate his pain and were accompanied by “sedation and disorientation.”
Ex. 11 (9/21/16 examination by Dr. Sen). This led Dr. Sen to conclude in late

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September that his “only alternative in this situation is to consider a repeat epidural
steroid injection.” Id.
The only other option that Dr. Sen has ever mentioned to Mr. Pearlman is
the possibility of spinal surgery, although Dr. Sen could not provide any details as
he is not a spinal surgeon. At this point it is unknown what such a surgery, even if
it were possible, would entail. However, any spinal surgery would raise multiple
problems: (1) Mr. Pearlman has herniations at multiple levels in the thoracic and
lumbar spine in addition to two slipped discs. Thus, even assuming there was a
surgery that could help Mr. Pearlman, it seemingly would entail multiple surgeries,
each of which has its own risks; (2) any surgery would require recuperation
accompanied by significant pain, leaving Mr. Pearlman in the same situation of
needing pain relief, but not being able to use opioids; and (3) there is no certainty
that any surgery could fix Mr. Pearlman’s issues. As noted by Dr. Howard,
Surgery is another traditional option, but may require multiple
operations in different regions of his spine, requiring many months, if
not years, of rehab. It is best to avoid surgery on the spine if at all
possible. Spine surgery has limited efficacy long term, and is
associated with many risks.
Ex. 3. Moreover, given Mr. Pearlman’s precarious health insurance situation, any
surgery, which would likely cost tens of thousands of dollars, would likely be cost
prohibitive.

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In short, Mr. Pearlman does not have any viable medical alternatives to
medical marijuana. His pain is persistent and he and his doctors have attempted to
alleviate the pain through multiple methods. The only successful treatments have
been opioids (which Mr. Pearlman should no longer take), injections (which only
provide temporary relief and may soon be cost prohibitive), and medical
marijuana. Medical marijuana is the safest option, the treatment that best alleviates
Mr. Pearlman’s pain, likely the only treatment he will be able to afford, and the
only one of these treatments that also helps to alleviate his psychological ailments.
Denying Mr. Pearlman medical marijuana denies him the ability to relieve his
serious pain and have a clear mind and focus to address the serious charges against
him and fully participate in his defense.
To address Your Honor’s concerns about the effect of this ruling on other
defendants, we note two points. First, every bail decision is made on an
individualized basis. A court must impose the least restrictive conditions
necessary when considering the particular defendant’s charged offense, the weight
of the evidence, the history and characteristics of the defendant, and the danger to
the community. 18 U.S.C. § 3142(g). These factors are going to be strikingly
different for every defendant. Thus, recognizing the unique facts and
circumstances of Mr. Pearlman’s health condition, which justify the removal of his
drug-testing condition, would not create a precedent that dissimilar defendants

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could rely upon to remove drug testing as a bail condition. In this case drug testing
is not required to insure Mr. Pearlman’s appearance in Court. Neither do Mr.
Pearlman’s prescriptions and use of marijuana pose a danger to his community.
His marijuana is not purchased from criminal elements but rather from statelicensed and heavily regulated dispensaries. In sum, Mr. Pearlman’s medical
marijuana treatments, prescribed by his physician, in full compliance with New
Jersey state law, has materially bettered his quality of life and is necessary for his
physical and mental health. Nothing in his history or characteristics merit
imposing a drug testing condition that would only serve to imperil Mr. Pearlman’s
health.
CONCLUSION
For the reasons stated above, in conjunction with those contained in Mr.
Pearlman’s initial brief, and made during oral argument before this Court, the drug
testing condition imposed on Mr. Pearlman is excessive and not necessary pursuant
to the factors set forth in 18 U.S.C. § 3141. Moreover, imposing such a condition
exerts an undue burden on Mr. Pearlman, effectively punishing him for making the
difficult decision to find an alternative to addictive opioids. Neither the
Government nor pretrial services have argued that Mr. Pearlman is a risk for flight
or a danger to the community – the two goals of the Bail Reform Act. Since the
drug testing condition is not necessary to achieve those goals, it simply should not

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be imposed. Forcing Mr. Pearlman back on opioids would endanger his health and
prevent him from fully participating in his own defense. Both equity and law
compel the result sought; allowing Mr. Pearlman to continue using medical
marijuana to manage and treat his pain and chronic medical conditions.

Dated:

February 1, 2017

KATTEN MUCHIN ROSENMAN LLP
By:

/s/ Scott A. Resnik
Scott A. Resnik
Michael M. Rosensaft
575 Madison Avenue
New York, New York 10022-2585
(212) 940-8800 (phone)
(212) 940-8776 (fax)

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CERTIFICATION
I hereby certify that on February 1, 2017, a copy of the foregoing was filed
electronically and will be served by mail on anyone unable to accept electronic
filing. Notice of this filing will be sent by e-mail to all parties by operation of the
Court’s electronic filing system or by mail to anyone unable to accept electronic
filing as indicated on the Notice of Electronic filing. Parties may access this filing
through the Court’s CM/ECF System.

/s/ Michael M. Rosensaft
Michael M. Rosensaft

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