Lawyers for Las Vegas urologist accused of reusing medical devices want trial moved

Experienced defense lawyers are mounting a campaign to move the upcoming federal trial of urologist Michael S. Kaplan out of Las Vegas.

At issue is the mass of publicity in the civil and criminal cases of another physician, Dipak Desai, stemming from the deadly 2007 hepatitis C outbreak.

In court papers, Kaplan’s defense team — Dominic Gentile, Paola Armeni and Vincent Savarese — argue that the publicity generated by Desai’s misconduct has made it difficult to select a jury and give Kaplan a fair trial. He is facing similar criminal charges of unlawfully reusing medical devices meant for single use.

A District Court jury convicted Desai in July of 27 counts tied to the hepatitis outbreak, including second-degree murder in the death of a patient, and he is now serving a life prison term with the possibility of parole after 18 years. The disgraced gastroenterologist was accused of reusing syringes and bottles of the anesthetic propofol.

More than $1 billion in civil damages also have been awarded against the manufacturers and distributors of propofol, according to Kaplan’s lawyers.

“These developments are still fresh in the collective mind,” the defense lawyers say. “Therefore, this event is exactly the type that can and should be viewed as saturating and inflaming an entire community with respect to similar allegations in another case at this time.”

The defense lawyers submitted media articles in the Desai and Kaplan cases, including several from the Las Vegas Review-Journal, they claim have contributed to the community-wide prejudice against Kaplan.

Compounding matters, the lawyers argue, Desai is to stand trial in federal court on conspiracy and health care charges three days before Kaplan is to face a jury Aug. 11 in the courtroom of Chief U.S. District Judge Gloria Navarro.

Desai is undergoing another round of competency evaluations, leaving questions about whether his trial date will be met. His lawyers also have been negotiating a plea deal.

Federal prosecutors, meanwhile, don’t share the Kaplan defense’s claims that it will be nearly impossible to select an unbiased jury in his case.

“Missing from this case is the sort of pervasive and inflammatory media coverage to justify a transfer,” Assistant U.S. Attorney Crane Pomerantz says in a written response. “The existing coverage has been diffused throughout a large community, been factual and neutral in substance and his old.”

Pomerantz suggests Kaplan and his lawyers contributed to the media blitz by taking out a full-page ad in the Review-Journal in March 2011 containing “self-serving” statements promoting his integrity as a physician.

Navarro has the final say on whether the case should be moved out of Las Vegas.

Kaplan was indicted by a federal grand jury in October in a scheme to reuse needle guides meant for one-time use in prostate procedures.

“To enrich himself, defendant Kaplan ignored product use specifications and placed his patients at significant risk by re-using needle guides for one use each,” the indictment says.

The guides, plastic sheaths through which needles are directed to obtain biopsy material, were alleged to have been reused between December 2010 and March 2011 at Kaplan’s Green Valley Urology medical practice.

Kaplan’s medical license was suspended briefly in March 2011 after a joint investigation by the Nevada State Board of Medical Examiners and the U.S. Food and Drug Administration.

The Southern Nevada Health District sent letters to more than 100 of his patients, advising them to get tested for HIV and hepatitis B and C. The district did not report a positive case among the patients.

In April 2011, the medical board reinstated his license after Kaplan explained that a salesman for the needle guides told him he could reuse the devices even though they were labeled for single use.

As part of his conspiracy to conceal the multiple use of needle guides, Kaplan made false representations about the practice to the medical board and in the 2011 Review-Journal ad, the indictment alleges.

He also is accused of lying to FDA agents during an interview that year.

Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135. Find him on Twitter @JGermanRJ.