Desai self-incrimination concerns noted


Citing worries about self-incrimination of her client, a lawyer for Dr. Dipak Desai suggested Tuesday that the pending class action lawsuit related to the ongoing hepatitis C crisis be postponed until the end of any criminal case.

Dominique Pollara made her remarks during a hearing on a motion to prevent Desai and the three other doctors who owned the Endoscopy Center of Southern Nevada from giving depositions in the civil suit involving the tens of thousands of patients who were not infected with a blood-borne diseases.

Lawyers for the patients wanted to question Drs. Desai, Eladio Carrera, Clifford Carrol and Vishvinder Sharma on standard medical practices at the clinic.

Pollara argued that her client shouldn't be forced to give a deposition in the civil case because anything he said could be used against him in a potential criminal case.

"I understand the public wants a response, but that's not an excuse to trample on a defendant's Fifth Amendment right," Pollara said.

District Judge Allan Earl had several options in handling the issue, Pollara said, but she prefers a postponement until any criminal cases come to an end.

Desai's criminal lawyer, Richard Wright, said his client was cooperating with a federal grand jury that had issued several subpoenas for records.

Lawyers for Carrera and Sharma also argued against the depositions but not for Fifth Amendment reasons. They said other clinic employees would be better sources for the information the patients were seeking, especially on issues such as anesthesia.

Will Kemp, who represents clinic patients, argued that any potential criminal action shouldn't hold up the civil case. He cited the MGM Grand fire in 1980 that killed 87 people. A special prosecutor was appointed to investigate, but no one was prosecuted, he said.

"A threatened criminal prosecution is just that: threatened," Kemp said.

He also argued that the doctors who owned the clinic and set policy would know the most about clinic operations.

Earl, who is handling all pretrial issues in the civil cases, ordered that the doctors did not have to give depositions until at least the end of July, when the matter will be revisited at another hearing.

Lawyers for clinic patients still can depose two of the doctors for financial information, Earl ordered in rejecting a motion to overturn his earlier decision to monitor large financial transactions by Desai and Carrera.

Earl last month ordered the doctors to get court approval for any transactions of $50,000 or more.

Dennis Kennedy, a lawyer for Desai and his wife, argued the original decision was based on conjecture and that there was no evidence the doctors were moving assets overseas. As a result, the Desais' constitutional property rights were "taken away," he said.

Patients lawyer John Muije said the harm to the doctors was minimal compared with the potential harm to patients should the assets disappear.

"If this money gets out of the country, we'll never be able to get at it," he said.

Earl stood by his original decision, which will be reviewed at the end of August and could be changed depending on whether Muije finds evidence of unusual asset transfers. The decision is under appeal to the Nevada Supreme Court.

Earl said he carefully crafted his decision to balance the interests of both sides, but he said he would follow any order by the Supreme Court even if it ruled otherwise.

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.

 

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