A lot has changed since Noel Gage’s mistrial in March 2008

I don’t know whether Noel Gage is a betting man, but I can tell you he doesn’t flinch easily.

If there were bookmakers for such things, recent developments in the federal government’s ongoing investigation into allegations of medical malpractice fraud would be enough for handicappers to take Gage’s game off the board. After being indicted in May 2007 on 18 charges related to allegations he took part in a conspiracy to defraud clients and jack up settlements in medical malpractice cases, Gage won a stunning mistrial in March 2008.

Although charges were eventually reinstated by the 9th U.S. Circuit Court of Appeals, next month’s second trial will focus only on charges related to client Melodie Simon. Simon became a paraplegic after undergoing a spinal procedure performed by Las Vegas surgeons John Thalgott, Mark Kabins and a local anesthesiologist.

Gage is accused of cutting a nefarious deal with the surgeons in exchange for future consideration on medical malpractice cases worth many millions of dollars. Simon eventually received $2 million in a case that might have netted her as much as $10 million.

Gage won Round 1 in his fight, but a lot has changed since then. By my pencil, the odds have shifted against him. If I were him, I’d be wincing.

His co-defendant in the upcoming case, medical consultant Howard Awand, recently was convicted on four misdemeanor charges that he willfully failed to pay $2.5 million in income taxes. Now that it’s known Awand bought things like fancy cars, condos and bed-and-breakfasts but couldn’t find the time to pay his taxes from the killing he was making in the medical malpractice racket, he might be feeling a little more heat.

Although Gage only faces charges that he ripped off Simon, he will go to trial with the knowledge that surgeon Kabins has admitted to a damning set of facts and has agreed to pay a whopping $3.5 million in restitution to the damaged woman.

Kabins was sentenced Thursday in Senior U.S. District Judge Justin Quackenbush’s court for having knowledge of a felony but failing to report it. Although Kabins avoided jail time, he still took a whipping: five years of probation, six months of home confinement, 250 hours of community service and the $3.5 million in restitution.

The real news is contained three paragraphs down in the U.S. attorney’s news release: “In his guilty plea agreement, Dr. Kabins admitted that on August 3, 2000, in Las Vegas, he assisted another orthopedic surgeon, John Thalgott, M.D. in performing spine surgery on patient Melodie Simon. Simon became paralyzed from complications that arose after the surgery.

“Dr. Kabins knew that experts could say that he fell below the standard of care in his treatment of Simon, and that he could be sued.

“To avoid being sued, Dr. Kabins asked Howard Awand, a medical consultant who referred personal injury cases to him and to lawyers, to persuade Simon’s attorney, Noel Gage, not to sue him and Dr. Thalgott. Dr. Kabins believed that Awand would corruptly attempt to persuade Gage by referring lucrative personal injury cases to Gage. After receiving referrals from Awand, Gage chose not to sue Dr. Kabins or Dr. Thalgott. Instead, he sued an anesthesiologist.

“Dr. Kabins believed that Gage did not sue him because Awand had referred cases to him. To help Gage sue the anesthesiologist, Dr. Kabins drafted a ‘Letter of Complaint’ from which he intentionally omitted information about his secret dealings with Gage and information about Simon’s medical condition following her surgery.”

Now that’s devastating.

Kabins’ attorneys have whined about how their client took his plea and didn’t cooperate with the government. But by signing off on the above set of facts, Kabins has essentially assisted the prosecution in the cases against Awand and Gage without receiving the benefits of cooperation enjoyed by others.

This spells trouble for Gage and Awand.

I’m no Jimmy the Greek, but I’ll bet one of the defendants is tempted to cooperate.

John L. Smith’s column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at or call (702) 383-0295. He also blogs at

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