Lawyer Gage wins round in court, but taking a deal must be tempting

Now the real gambling begins.

Noel Gage said he would fight the federal government's case against him all the way. I guess we'll get a chance to see how far he wants to press his good luck.

Gage, 69, won a substantial victory Monday in federal court when Senior U.S. District Judge Justin Quackenbush dismissed 13 of 19 charges against Gage in a case of alleged medical malpractice fraud and conspiracy between lawyers and doctors.

Although Quackenbush has been criticized for being "pro defense" at trial, the fact is the government's key witnesses admitted behavior that's at least as nauseating as the crimes for which the defendant stands accused. Jurors notice such things.

The government appeared so confident in its case, or so obsessed with giving surgeons John Thalgott and Ben Venger the kid-glove treatment, that it failed to sufficiently inoculate those key witnesses against a withering cross-examination by Gage lead defense counsel Tom Pitaro. Thalgott came off as arrogant and uncaring, Venger overwhelmed and ill-prepared.

We know Venger laundered money received from Gage associate and self-styled medical consultant Howard Awand. He admitted it. We know Thalgott schemed to save his bacon in the malpractice case involving former Olympian Melodie Simon. He admitted it.

Combine that with the decidedly thin evidence directly linking Gage in a number of the other charges, and Monday's decision wasn't much of a surprise to those who actually watched some of the witnesses in the courtroom.

In the wake of the dismissals, we're now to believe Gage's attorneys are so confident the jury is unimpressed with the government's theory that they won't present a defense. Instead, Pitaro will offer his client's defense during closing arguments set to start today. As confident as Gage might be, I'm guessing his attorney is sharp enough to be concerned any defense witness might open a door he'd prefer to keep closed.

The defense isn't celebrating yet. Nor should it.

Nor, should the allies and associates of Howard Awand. Even the flawed Thalgott and Venger appear capable of busting out Awand. The Gage case has served to illustrate the government's substantive case against him.

If Awand were a roulette number, he would be "00."

Gage, meanwhile, is closer to even money.

In my mind, that leaves open a tempting door for Noel Gage.

He'll turn 70 in May. He has a wife and family. It would make perfect sense for a guy in his position to take a deal from the government and avoid the possibility of getting stung by those six remaining charges -- a couple of which might not be so difficult to prove.

Rumors of a settlement offer in the case have circulated more than once in recent days. It would have to be a cushy deal to rival the featherbed Thalgott and Venger received.

Of course, a prison bed isn't so soft.

If the jury is made to understand the basic concept of "joint and several liability," Gage could have problems that will challenge Pitaro's best argument. In medical malpractice cases, even physicians with a lesser culpability can be pursued successfully. It's reasonable to believe that Gage, with his medical degree and lifetime of courtroom experience, should reasonably have pursued surgeons Thalgott and Mark Kabins in the Simon case. Instead, they got a pass from the bulldog litigator after what Thalgott testified was a clandestine meeting in which the doctors caught a break in exchange for sending lucrative cases through Awand to Gage.

Maybe jurors didn't buy Thalgott's haughty act, but is it a gamble Gage will be willing to take?

Perhaps he really will fight to the end and be vindicated. Maybe Gage will wisely handicap his odds and sagely surmise the facts are on his side, the government really wants to nail Awand most, and the jury was genuinely unimpressed with those witnesses.

Perhaps that's it.

Of course, the penitentiaries are filled with fellows who made similarly logical arguments. They're intelligent people who pressed their luck and the facts, then awoke to find jurors didn't see things their way.

We know Gage is a proud trial attorney who keenly understands the system. We know the U.S. attorney and FBI believe he's a lawyer who gamed the system he swore to uphold.

Now we'll see whether Noel Gage is a gambler.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.