In a case being watched across the country, an Oakmont doctor convicted of illegally prescribing OxyContin to addicts, often in exchange for sex in his office, has lost his third and probably final appeal.

The 3^rd U.S. Circuit Court of Appeals last week said Bernard Rottschaefer will not get a new trial based on his lawyer's claim that "newly discovered evidence" in a related civil malpractice case proved that the witnesses who testified against him had legitimate medical conditions that the painkiller helped treat.

The appellate court also rejected Dr. Rottschaefer's argument that two former patients lied when they said they had not been promised leniency for their testimony, an allegation he supported by noting that the patients received lenient sentences on charges they were facing.

The 3^rd Circuit, which had denied Dr. Rottschaefer's previous appeals, said the "new" evidence presented by the doctor's lawyer, Eli Stutsman, wasn't really new.

Rather, wrote Judge Walter Stapleton for the three-judge panel, it was "nothing more than cumulative impeachment evidence that is unlikely to produce an acquittal."

That's one of the standards the court has to consider in granting a new trial, and Judge Stapleton said it wasn't met.

During Dr. Rottschaefer's criminal trial, the women said there were no medical reasons that they should have been given the drugs. But in depositions in the civil case, they said they had serious medical ailments for which they required the medication.

Essentially, the appellate panel said that the contradiction doesn't matter.

Dr. Rottschaefer and his lawyers had ample opportunity to challenge the witnesses at trial and did, they ruled.

The panel agreed with U.S. District Judge Gary Lancaster's earlier conclusion that "veracity of witnesses may not be tested a second time."

The judges also affirmed Judge Lancaster's opinion that "regardless of what the patient witnesses may have told the defendant about their symptoms, the prescriptions were not written for medical purposes."

The government said they were written in exchange for oral sex, although prosecutors didn't have to prove that claim. They only had to show that the OxyContin was not prescribed for a legitimate medical purpose.

"The crime for which Rottschaefer was convicted was not, as he claims, trading drugs for sex," wrote Judge Marjorie Rendell in an earlier appellate decision. "Rather, he was convicted of unlawfully distributing controlled substances outside the course of professional practice."

The appellate court also rejected Dr. Rottschaefer's claim that two of the witnesses lied about promises of leniency. Judge Stapleton said the judges agreed with Judge Lancaster's conclusion that nothing in the record indicates the women were promised leniency before they testified.

Dr. Rottschaefer was convicted in March 2004 of 153 counts and acquitted on 55 others. He was sentenced to 6¹/₂ years in prison. The sentence was later reduced to five years because of a 2005 Supreme Court decision that made sentencing guidelines advisory instead of mandatory.

Judge Lancaster decided to reduce the sentence in part because Dr. Rottschaefer lost his medical license after his conviction. He had to forfeit his practice on Delaware Avenue and had been working as a pipe installer last year.

The case against him has attracted attention from critics of the Drug Enforcement Administration who say the agency is targeting doctors who treat chronic pain to make up for losing ground in the larger war on drugs. DEA denies that claim, saying it has an obligation to pursue an explosion of prescription drug abuse in America.