Why would a successful cosmetic surgeon throw away his career to save a few thousand dollars a year by buying a knockoff version of Botox for wrinkle reduction, procedures that amount to less than 5 percent of his sales?
That's the question defense attorney Ronald Richards posed to a jury Wednesday in his opening statement in the trial of Las Vegas cosmetic surgeon Stephen Seldon and his wife, Deborah, an office manager.
Richards disputed the government's contention that, despite a signed agreement with patients confirming the clinic would use Botox, Seldon injected them with a cheaper, non-government approved product called TRItox.
"You are not going to hear of any evidence that Dr. Seldon's patients had any problems," Richards told the jury seated Wednesday. "That's because Dr. Seldon only used Botox."
Richard said not one patient will testify that they came into the Seldons' A New You clinic expecting to be injected with Botox only to be treated with TRItox.
The couple is charged with mail fraud and misbranding a drug held for sale. The government claims that the Seldons purchased the drug TRItox, which has never been tested by the Food and Drug Administration, from a Tucson, Ariz.-based company called Toxin Research International Inc.
During a one-year period ending in October 2004, the couple purchased 19,000 units of TRItox for $36,925, half the cost of Botox, Assistant U.S. Attorney Crane Pomerantz told jurors.
"The defendants were interested in padding their bank accounts and, in doing so, used their patients as guinea pigs," Pomerantz said, referring to the use of TRItox. "They used it and used it and used it and they lied and they lied and they lied."
The vials of TRItox were marked with labels that read, "For research purposes only, not for human use," Pomerantz said.
The owner of Toxin Research International Inc., Chad Livdahl, pleaded guilty in 2005 to conspiring to commit fraud in connection with distributing TRItox as a substitute for Botox. His guilty plea came after four patients at a Florida clinic became ill after being injected with the drug.
Livdahl, who is serving a nine-year sentence, is expected to testify during the trial that the Seldons regularly purchased the product from him. Richards pointed out that Livdahl also was indicted on charges of perjuring himself on the witness stand and said he cannot be trusted.
"The very core of their case is who their witness is," said Richards, who called Livdahl a "fantastic con man" who convinced more than 200 doctors nationwide to test the product because an FDA approval supposedly was imminent.
Richards pointed out that it is not illegal for physicians to test new products on themselves. He said the Seldons never used it on their patients.
But Pomerantz suggested that the Seldons' records related to Botox and TRItox purchases are fishy.
In October 2003, Allergan Inc., the only company licensed to manufacture Botox, stopped supplying Seldon's clinic with the product when he fell behind on bills, Pomerantz said.
Having marketed their Botox procedures in local magazines but no longer with a source for Botox, the Seldons began purchasing TRItox from Livdahl's company that same month, Pomerantz said.
An Allergan representative noticed the advertisements and confronted the Seldons.
"They were rude, abrupt and dismissive," Pomerantz said. "They were comfortable with what they were using."
Richards said the Seldons needed some Botox at their practice for the small number of procedures they did. He said Allergan is not the only source for the product and that many physicians and distributors are interested in getting rid of surplus drugs.
The trial is scheduled to continue this morning before U.S. District Judge Kent Dawson.
Contact reporter Adrienne Packer at firstname.lastname@example.org or 702-384-8710.