Carl Gallo v. Adrian Feinerman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 22, 2013∗
Decided August 27, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 12-3073
CARL GALLO,
Plaintiff-Appellant,
v.
ADRIAN FEINERMAN,
Defendant-Appellee.
Appeal from the United
States District Court for the
Southern District of Illinois.
No. 07-cv-32-SCW
Stephen C. Williams,
Magistrate Judge.
Order
Gallo v. Feinerman, No. 09-3575 (7th Cir. Nov. 3, 2010) (nonprecedential), held that
Carl Gallo had made out a constitutional claim against Adrian Feinerman, one of his
prison physicians, by alleging that Feinerman prescribed a drug known to have side
effects that were, for Gallo, worse than his condition (gastroesophageal reflux disease),
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12-3073 Page 2
while withholding a medication that Feinerman knew would treat the disease without
side effects.
On remand, a jury trial was held and ended in a verdict for Feinerman. Gallo
presents a single argument on appeal: That the district court should have allowed him
to question Feinerman about what happened to his medical license after he retired from
practice. Gallo asserts that the DEA suspended Feinerman’s license “for improperly
prescribing drugs.”
Though represented by counsel at trial, Gallo did not make an offer of proof and
therefore has not preserved this issue for appellate review. See Fed. R. Evid. 103(a)(2).
The Drug Enforcement Administration does not license people to practice medicine,
though it does control physicians’ ability to prescribe drugs such as opiates that are on
federal schedules of controlled substances. For all this record reveals, the DEA
concluded that Feinerman has prescribed painkillers excessively. Such a conclusion
would have no bearing on the question whether, in choosing how to treat Gallo’s acid
reflux disease, Feinerman made appropriate medical judgments. Without an offer of
proof, neither the district court nor this court could evaluate the evidence’s relevance or
accurately apply Rules 403 and 404 of the Federal Rules of Evidence.
AFFIRMED

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