Mistrial request rejected in Gage trial

The defense team representing personal injury attorney Noel Gage urged a federal judge to declare a mistrial Friday after learning that evidence that was not admitted during the three-week trial was discovered in the deliberation room.

Jurors have been mulling over six counts, including conspiracy and mail and wire fraud charges, since Tuesday. Jurors will resume deliberations Monday morning.

Senior U.S. District Judge Justin Quackenbush denied the mistrial request, saying that it is the duty of the prosecution and the defense to look over exhibits before they are delivered to the jury for deliberation.

Over the course of deliberation, jurors found exhibits that were not admitted by Quackenbush and complained that exhibits that were part of the evidence were not in the deliberation room.

"They're probably in there saying, 'What's wrong with those people? Why can't they get their act together,' " Quackenbush said, referring to the jurors' opinions of the attorneys who submitted the evidence.

Prosecutors and defense attorneys also began discussions Friday on how much Gage should forfeit if he is found guilty of conspiring with self-proclaimed medical consultant Howard Awand and local surgeons to boost medical costs and lawsuit settlements. The network is alleged to have protected doctors from medical malpractice lawsuits and shared millions of dollars in kickbacks.

If Gage is found guilty of being involved in the criminal conspiracy, attorneys are expected to engage in a debate about when the conspiracy began and how much Gage profited from the illegal agreement.

The government contends that the conspiracy began when Gage accepted a lucrative personal injury case involving Carlos Pachas, a man who was left in a permanent vegetative state during kidney surgery.

Three days later, Gage pursued a different strategy in his lawsuit involving Melodie Simon, a former Olympian who was left paralyzed after routine back surgery in 2000.

The government claims that Gage failed to go after surgeons Dr. Mark Kabins and Dr. John Thalgott because they were protected by Awand. Gage feared, according to prosecutors, that he would lose future lucrative referrals from Awand if he sued the surgeons.

"The government's theory has been all along that the Pachas case was the bribe; it was the buy-in," First Assistant U.S. Attorney Steven Myhre said Friday.

The government believes that Gage had a conflict of interest when he continued to represent both Simon and Pachas because he was not providing Simon with honest representation. Myhre argued that Gage should forfeit the $6 million he received in attorney fees from Pachas and the $760,000 from Simon.

Myhre also suggested Gage should pay Simon, who received a $2.3 million settlement, restitution for his dishonesty. Before his involvement with Awand, Gage told Simon he probably could render a judgment between $8 million and $10 million.

Defense attorney Thomas Carlucci said Gage might have violated ethics rules by failing to disclose a conflict of interest, but that infraction shouldn't amount to a criminal charge.

Carlucci said the government alleges that the conspiracy was sealed when Gage met with Kabins and Thalgott in 2002 to discuss how to handle the Simon case. During that meeting, the three agreed to blame the anesthesiologist. Thalgott testified that he lied during the deposition to place blame on the anesthesiologist.

Because the meeting took place well after Gage accepted the Pachas case and because Gage secured an $18 million settlement for the Pachas family, Carlucci argued that Gage is entitled to the attorney fees he earned.

Contact reporter Adrienne Packer at apacker@reviewjournal.com or (702) 384-8710.