Spine surgeon Mark Kabins has filed a motion in his fraud case that borrows a legal strategy used unsuccessfully in a related case.
In the document, Kabins seeks an order compelling federal prosecutors to grant limited immunity to personal injury attorney Noel Gage and medical consultant Howard Awand, defendants in the related case.
Kabins wants the pair to testify at his upcoming trial, which is scheduled to begin Nov. 3 before U.S. District Judge Robert Jones.
Gage previously filed a similar motion that sought immunity for Kabins. Gage initially won, but the 9th U.S. Circuit Court of Appeals recently ruled against him.
"For the exact same reason that it was necessary for Dr. Kabins to testify for Gage, it is necessary for Gage and Awand to testify for Dr. Kabins," the surgeon's lawyers wrote.
Gage and Awand are accused of conspiring to cheat injured clients by inflating medical costs, protecting doctors from malpractice lawsuits and sharing kickbacks from legal settlements. Gage was the first defendant to go to trial, and his case resulted in a hung jury in March 2008.
Senior U.S. District Judge Justin Quackenbush of Spokane, Wash., who presided over the trial, later dismissed the charges against Gage and Awand after prosecutors refused to grant limited immunity to Kabins, described at the time as a target of the fraud investigation.
Prosecutors had granted immunity to two other doctors, Benjamin Venger and John Thalgott, in exchange for their testimony at Gage's trial.
Although the defense subpoenaed Kabins, he exercised his Fifth Amendment right against self-incrimination and refused to testify. Defense attorneys argued that Kabins' testimony would have contradicted Thalgott's.
Kabins was indicted earlier this year on conspiracy and fraud charges.
Prosecutors appealed Quackenbush's decision to dismiss the charges against Gage and Awand, and the 9th Circuit reinstated the charges last month.
The appeals court ruled that due process compels immunity "only for defense witnesses who will offer testimony that directly contradicts the testimony of a government witness" who has been given immunity. The court concluded that Kabins would not have directly contradicted Thalgott.
Los Angeles attorney Donald Re, who represents Kabins, said the opinion was unpublished and, thus, sets no precedent. Re said the appellate judges did not change the rule regarding immunity.
"What they seemed to be very clear about is that, had there been contradiction between Thalgott's testimony and Kabins' testimony, immunity would have been appropriate," the lawyer said.
Greg Brower, the U.S. attorney for Nevada, said he would not comment on Kabins' motion until he had a chance to read it.
Re submitted a declaration with the motion in which he states that Awand, "if called to testify and immunized, would contradict the testimony of immunized government witness John Thalgott."
Contact reporter Carri Geer Thevenot at firstname.lastname@example.org or 702-384-8710.