Witness immunity is sought

Personal injury lawyer Noel Gage is trying to force federal prosecutors to grant limited immunity to a witness who has made statements that could benefit him in his ongoing fraud case.

In a motion filed Monday, Gage asked Senior U.S. District Judge Justin Quackenbush for an order compelling the government to grant immunity to spine surgeon Mark Kabins.

"This motion is made on the basis that the denial of immunity to Dr. Kabins will distort the judicial fact-finding process and will deny Mr. Gage a fair trial," the defendant's attorneys wrote.

A retrial for Gage is scheduled to begin May 27. A previous trial resulted in a hung jury.

Gage was indicted last year with medical consultant Howard Awand. Prosecutors accused the pair of conspiring with doctors to cheat injured clients and enrich themselves.

According to Gage's motion, the government's case "relies heavily" upon testimony from two other doctors who were granted immunity, Benjamin Venger and John Thalgott. However, the motion alleges, Kabins is expected to give testimony that will contradict Thalgott's testimony.

"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," according to the motion. "The government should not be permitted to benefit from this ploy."

According to the document, defense attorney David Chesnoff has told Gage's lawyers that Kabins will assert his Fifth Amendment right against self-incrimination if called to testify by Gage without an agreement for "use immunity."

A witness with use immunity still may be prosecuted, but only based on evidence obtained independently of the witness' protected testimony.

When contacted Wednesday, Chesnoff declined to comment on Gage's motion. But when asked whether Kabins would be willing to take the witness stand at Gage's trial, Chesnoff said, "Dr. Kabins would love to testify, because Dr. Kabins has done nothing wrong, and all he wants is the same protections the government gave the other doctors."

Chesnoff described Kabins as a hard-working surgeon with "an impeccable reputation" who has performed "much charitable medical work." The lawyer said Kabins' patients have included judges, FBI agents, police officers and teachers -- "a complete cross-section of the community."

Representatives of the U.S. attorney's office in Las Vegas also declined to comment on the Gage motion.

Natalie Collins, spokeswoman for the office, said the government intends to file its response Friday.

Awand's trial is set to begin in October.

After hearing evidence earlier this year at Gage's trial, Quackenbush acquitted the lawyer of all counts other than those involving Melodie Simon, who was paralyzed after Thalgott and Kabins operated on her in 2000.

The counts involving Simon then went to the jury, which could not agree on any verdicts.

Prosecutors claimed Gage and Awand conspired to defraud Simon when they agreed that Gage would forfeit medical malpractice claims against Thalgott and Kabins, part of Awand's network of doctors, in exchange for Awand referring a more valuable personal injury case to the lawyer. Gage instead sued an anesthesiologist on Simon's behalf.

In support of its theory, prosecutors argued that Gage, Awand, Kabins and Thalgott ironed out details of their conspiracy during a secret meeting in 2001.

On Feb. 16, shortly before the start of Gage's trial, Kabins was interviewed by an FBI agent as part of a "proffer session." A summary of that interview, known as a "302," was attached to Gage's recent motion.

Proffer sessions typically involve an agreement between federal prosecutors and individuals under criminal investigation. They permit these individuals to give the government information about crimes with some protection against prosecution.

During the 2001 meeting, according to Kabins' 302, "Gage advised Kabins and Thalgott that he was not going to commit legal malpractice by promising not to sue them."

In addition, Kabins expressed his belief that he did nothing to harm Simon.

"If Kabins would have been sued in the Simon case, he would have fought it 'tooth and nail' and would have won the case against him," according to the 302.

At Gage's trial, Thalgott testified that he thought Gage had a strong case against him and Kabins.

According to Gage's motion, prosecutors may argue that they have not granted immunity to Kabins, because they "may someday decide to pursue criminal charges" against the surgeon."

"However, the government has been investigating the alleged conduct for over three years and has never taken any action against Dr. Kabins," the motion states. "Common sense indicates that if the government truly intended to charge Dr. Kabins, it would already have done so."

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-383-0264.