A slip-up by prosecutors led District Judge Valerie Adair to abruptly recess the hepatitis C outbreak trial of Dr. Dipak Desai Monday to consider a defense motion for a mistrial.
Lead defense attorney Richard Wright asked for the mistrial after key prosecution witness Tonya Rushing, Desai’s former clinic manager, told the jury she was under federal indictment with Desai.
Outside the presence of Rushing and the jury, Wright told Adair that he was “flabbergasted” that the lead prosecutor, Chief Deputy District Attorney Mike Staudaher, solicited the information from Rushing on the witness stand.
Rushing, given limited immunity by federal authorities to testify in the state case, had been on the witness stand for only a few minutes after the lunch break when she implicated Desai in the federal case.
Wright said telling the jury of the federal health care fraud indictment against Desai amounted to impermissible evidence and severely prejudiced his client in the eyes of the jury, and he didn’t see any way to correct it short of a mistrial.
“I don’t know how to unring the bell,” he said.
Adair was concerned about Rushing’s testimony but was reluctant to determine on the spot whether it rose to the level of a mistrial in the eighth week of the high-profile trial.
She politely chided Staudaher for posing questions that prompted the witness to link Desai to the federal charges but said she didn’t believe he did it intentionally.
Staudaher acknowledged that he should have done a better job with Rushing on the stand but suggested the matter could be resolved through an instruction to the jury to disregard her comments.
Wright argued that an instruction would still call attention to the federal case and put the defense in a tough position when cross-examining Rushing.
Adair asked prosecutors to think about the language of an instruction and told both sides to research the legal issues and report back to her at 9 a.m. today .
She then called the jury back into the courtroom and dismissed it for the day.
Rushing, 45, and Desai, 63, each face one count of conspiracy and 25 health care fraud counts alleging they schemed to inflate the length of medical procedures and overbill health insurance companies.
The case, which mirrors the state fraud allegations against Desai, is to be tried on Aug. 20.
In a bizarre move earlier in the day, another prosecution witness in the state case recanted key damaging testimony against Desai’s co-defendant, nurse anesthetist Ronald Lakeman, after reading an account of his testimony in the Las Vegas Review-Journal.
Before being cross-examined by defense lawyers, Rod Chaffee, a nurse who once worked for Desai, told Adair outside the presence of the jury that he wanted to change a statement he made in testimony on Friday.
Chaffee, who was fired from Desai’s clinic several months before the 2007 outbreak began, had testified that he saw Lakeman reuse needles and syringes on patients.
But on Monday, he told Adair that after reading his statement in the newspaper, he realized that it was inconsistent with previous statements he made to investigators on the subject.
Adair asked Chaffee to briefly leave the courtroom, and Lakeman’s angry defense lawyer, Rick Santacroce, called for a mistrial.
Santacroce described Chaffee as a “nut job.”
Chaffee was arrested and fired in April 2007 after he was accused of making a bomb threat at the clinic. He attributed his conduct at the time to erratic behavior caused by his wife’s 2006 death, which was a homicide.
Santacroce said Chaffee’s testimony on Friday was “so damaging and prejudicial” to Lakeman that a mistrial was the only remedy.
Adair denied the motion but allowed defense lawyers to bring out Chaffee’s recantation on the witness stand before the jury.
When questioned by Wright, Chaffee testified that he saw Lakeman go back into opened bottles of the anesthetic propofol during procedures but could not say whether he had reused any needles and syringes to do it.
The new testimony was more favorable to the defense.
Federal and local health officials concluded that the combination of double-dipping syringes into propofol bottles used on multiple patients spread the blood-borne virus from patients infected with hepatitis C on two different dates in 2007.
Prosecutors contend a Desai-created work environment that placed profit above the well-being of patients led to unsafe injection practices and the outbreak.
Desai and Lakeman, 66, are standing trial in Adair’s courtroom on more than two dozen charges, including murder, criminal neglect of patients, theft and insurance fraud.
The charges focus on the cases of seven hepatitis infections health officials linked to Desai’s now-closed Endoscopy Center of Southern Nevada on Shadow Lane.
One of the patients, Rodolfo Meana, died last year.
Desai gave up his medical license after health officials disclosed the hepatitis outbreak in early 2008.
Contact Jeff German at email@example.com or 702-380-8135. Follow @JGermanRJ on Twitter.