Gage wrist-slapping wise move for attorneys, victim
February 24, 2010 - 12:00 am
The government pinned the tail on another donkey Tuesday in U.S. District Court.
This time it was attorney Noel Gage’s turn to stand before the bar of justice, do the hee-haw routine and agree to be speared in the wallet in the government’s fading investigation of case-fixing involving local physicians and personal injury lawyers.
After battling the U.S. attorney to a standstill in a previous trial, Gage listened to his defense attorneys and wisely agreed to enter an Alford plea. An Alford allows Gage to enter a technical guilty plea and admit the government’s facts could result in conviction, in this case to a single obstruction of justice count, but he also gets to maintain his innocence. Essentially, he’s guilty with an asterisk.
Gage, 71, agreed to pay former client Melodie Simon the $702,600 he charged as attorney fees in her personal injury case. The government agreed to stand silent at his June 3 sentencing. Gage will get to expound about how he didn’t "knowingly and intentionally" fail to disclose to the grand jury three checks totaling $1.1 million he’d cut to malpractice consultant Howard Awand.
(Despite admonishments to the defense that the conviction carries a sentence of up to 20 years, no one expects Gage to serve a minute of jail time. In a further sign the feds are folding this tent, the judge announced Awand had agreed to a plea deal that’s scheduled to be heard March 8.)
I’m not a big fan of creative settlements and wrist-slap sentencing. Such deals always favor the guys with the best connections and healthiest checkbooks.
In this instance the deal makes sense. It not only puts a problematic case behind Assistant U.S. Attorneys Steven Myhre and Dan Schiess, but it also will mean more compensation for the victim: Melodie Simon.
She’s the poor woman who in 2000 went to her local physicians for an operation on her back and emerged from their expert care a paraplegic. She retained Gage to fight for her in court, and Gage was accused of cutting a secret deal through Awand to go easy on spine surgeons John Thalgott and Mark Kabins in exchange for lucrative future cases.
Although Thalgott, Kabins and Dr. Ben Venger have signed off on the government’s theory of the case, Gage saw all those charges against him dismissed Tuesday.
By agreeing to return Simon’s attorney’s fees, Gage acknowledged the ugliness of the ordeal. Although he can spin it in a favorable light, Gage now joins Venger, Thalgott and Kabins in compensating Simon. For his part, Kabins admitted damning facts and agreed to plead guilty to a felony along with coughing up a $3 million check to his former patient.
Only Simon can know how much solace that brings her.
Gage has maintained his innocence from the start and vowed to fight to the death. But the longtime litigator was smart to bow out and avoid a trial that would have seen Simon appear as a hostile witness. Even with capable defense attorneys at his side, I think the irascible Gage was a favorite for conviction on multiple counts of fraud and conspiracy.
Although technically not restitution, as Gage attorney Pamela Johnston was quick to point out, Simon will receive more of the money that ought to have been hers in the first place. She’ll also avoid yet another stressful trip to the witness stand.
In the end, the government gets its conviction, such as it is. Gage gets to protest his innocence, such as it is.
Let’s just hope he refrains from cutting one of those smug TV commercials favored by so many personal injury attorneys.
Tail or no tail, that would prove he’s a jackass beyond a reasonable doubt.
John L. Smith’s column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295. He also blogs at lvrj.com/blogs/smith.