Federal prosecutors are reluctant to grant immunity to Las Vegas surgeon Mark Kabins, arguing that their investigation of doctors and lawyers allegedly involved in a scheme to defraud clients could lead to charges against the spine specialist.
On Monday, U.S. District Judge Justin Quackenbush told the federal government to grant immunity to Kabins by Friday or he will dismiss a criminal case against personal injury attorney Noel Gage.
Gage's attorneys pushed for Kabins' immunity, saying that his testimony will contradict that of Dr. John Thalgott, a government witness who was granted immunity before Gage's trial in February. The defense team claims the government declined to offer protection to Kabins because his testimony would benefit Gage.
Quackenbush declared a mistrial last month after a jury deadlocked on charges against Gage, who is accused of conspiring with doctors and attorneys to inflate clients' medical costs, protect physicians from medical malpractice lawsuits and share kickbacks from legal settlements.
At issue is Gage's treatment of Melodie Simon, a woman who hired Gage after she underwent back surgery in 2000 and emerged from the hospital a paraplegic. Prosecutors claim Gage did not pursue medical malpractice lawsuits against Simon's surgeons, Kabins and Thalgott, because they were part of a network overseen by self-proclaimed medical consultant Howard Awand.
In return for backing off the doctors, the government claims, Awand referred a case to Gage that ultimately settled for $18 million.
A secret meeting between Gage, Kabins and Thalgott in 2001 is key to Kabins' testimony, the defense claims.
Thalgott told jurors in March that the three conspired to blame an anesthesiologist for Simon's injuries.
The two physicians agreed to testify at Simon's trial and craft their testimony to point the finger at the anesthesiologist.
Simon received a $2.3 million settlement from the case, but prosecutors claim that if Gage had pursued the surgeons, her reward would have jumped to between $8 million and $12 million.
Defense attorneys claim Kabins told the FBI that during the secret meeting, Gage said "he was not going to commit legal malpractice by promising not to sue them."
In its motion obtained Tuesday, the government claims Kabins' testimony would not contradict that of Thalgott.
Thalgott testified he was still unsure whether Gage would file a lawsuit against him after that meeting.
"Kabins purports to say nothing different in his anticipated testimony," according to the federal government's motion.
"Whether or not Gage said, at the meeting in the fall of 2001, that he was not going to promise not to sue them does not undercut Thalgott's recollection of the meeting, his interpretation of the meeting or his interpretation of events subsequent to the meeting."
The defense also claims Kabins will counter Thalgott's statements that Kabins never believed he was responsible for Simon's injuries. Prosecutors said Kabins waited several hours before performing emergency surgery to stop the internal bleeding that contributed to Simon's paralysis.
The government says Kabins can testify that Thalgott lied because Thalgott never stated a "proximate cause" of Simon's injuries. Thalgott testified only that both surgeons were concerned about being sued.
The government claims it is up to prosecutors to decide whether to grant immunity, not a judge.
"As the investigation continues, the government seeks to preserve its discretion in making a charging decision against Kabins," the prosecution's motion says. "A grant of testimonial use immunity to Kabins, on the other hand, would remove that decision from the prosecution and foreclose any prosecution of Kabins."
Contact reporter Adrienne Packer at apacker @reviewjournal.com or 702-384-8710.