Judge orders immunity for doctor in Gage case

The government's criminal case against personal injury attorney Noel Gage took a hit Monday, when a federal judge ordered prosecutors to grant immunity to a witness whose testimony could benefit the defense.

U.S. District Judge Justin Quackenbush ordered the U.S. attorney's office to grant immunity to Dr. Mark Kabins by Friday or he will dismiss the fraud case against Gage.

Natalie Collins, a spokeswoman for the U.S. attorney's office, and Thomas Pitaro, Gage's attorney, declined to comment on Quackenbush's decision.

"Dr. Kabins is pleased that the court provided him with the same protection provided to Dr. (Benjamin) Venger and Dr. (John) Thalgott," said Kabins' attorney, David Chesnoff.

The federal government claims the 69-year-old Gage belonged to a network of Las Vegas doctors and personal injury attorneys who conspired with self-proclaimed medical consultant Howard Awand to inflate clients' medical costs, protect doctors from medical malpractice lawsuits and share kickbacks from legal settlements.

They referred clients with seemingly solid legal claims to one another, keeping the scam alive and the money flowing, according to prosecutors.

A jury who heard weeks of testimony could not reach a verdict last month, and Quackenbush declared a mistrial. Gage's new trial is scheduled to begin on May 27.

The case is centered on Melodie Simon, who underwent routine back surgery in 2000 and ended up paralyzed after a sac protecting her spine was punctured.

Prosecutors told the jury that Gage initially told Simon that her case was solid and she could receive a judgment of between $8 million and $12 million.

But, according to the government, Gage opted not to sue Thalgott and Kabins, the surgeons who operated on Simon, and instead went after the anesthesiologist. Simon was awarded a $2.3 million settlement, of which she received $1.3 million after attorneys fees and related costs.

The government contends Gage switched courses when he agreed not to sue the surgeons for medical malpractice in exchange for a referral on a lucrative case that ultimately settled for $18 million.

During the trial, Thalgott testified that he, Kabins and Gage had a secret meeting in 2001 and devised a plan to blame the anesthesiologist for Simon's injuries. Thalgott said he and Kabins agreed to tailor their testimony at Simon's trial to match Gage's argument.

However, in motions filed by Gage's defense team, Kabins told federal authorities a different story shortly before Gage's trial began in February. During an interview with the FBI, Kabins explained that "Gage advised Kabins and Thalgott that he was not going to commit legal malpractice by promising not to sue them."

The defense team suggested that Thalgott was offered immunity and Kabins was not because Thalgott's testimony supported the government's theory.

"The government has used its power to get Dr. Thalgott to provide them with testimony that is beneficial to the government's case by giving him limited use immunity, but has not given the same benefit to Dr. Kabins, whose testimony will provide important and contradictory testimony, thus undermining the government's case," the defense argued to Quackenbush. "The government should not be permitted to benefit from this ploy."

The jury deliberated for one week before announcing they could not reach an unanimous decision.

A defense attorney unrelated to the case said the government should be concerned if three or four jurors sided with Gage. Eight jurors sought a guilty verdict, resulting in a hung jury. After the mistrial was declared, U.S. Attorney Gregory Brower said he was looking forward to retrying the case.

The order to grant immunity to Kabins and the mistrial were not the only hits the government has taken in what was said to be a massive case that would ultimately include several high-profile doctors, lawyers and even judges.

The day the case was handed over to the jury, Quackenbush dismissed 13 of the 19 charges against the personal injury attorney. Most of those charges related to Gage's dealings with the family of Carlos Pachas, a Las Vegas man who underwent kidney surgery and emerged from the operating room in a permanent vegetative state.

Quackenbush, noting the $18 million settlement Gage had negotiated, told the government it failed to provide adequate evidence that the attorney had defrauded the Pachas family.

If charges against Gage are dismissed, the government will set its sights on Awand, who is scheduled to go to trial in October.

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