Home Subscribe Las Vegas Review-Journal
  Jobs Cars Homes Shopping Travel Weddings Golf Best of Las Vegas Photo   Search:

RECENT EDITIONS
Sun Mon Tue Wed Thu Fri Sat

News
May. 03, 2008
Copyright © Las Vegas Review-Journal

Prosecutors stand firm against immunity for Gage witness

By ADRIENNE PACKER
REVIEW-JOURNAL

Federal prosecutors filed a motion late Friday requesting that a U.S. district judge lift an order directing the government to grant immunity to a surgeon tied to the investigation of personal injury attorney Noel Gage.

First Assistant U.S. Attorney Steve Myhre stated in the motion that granting immunity to spine surgeon Mark Kabins would damage its ongoing investigation into a network of doctors and lawyers who the government claims conspired to defraud clients and line their own pockets.

"Trial testimony by Kabins under grant of immunity would seriously jeopardize the possibility of charging Kabins," Myhre wrote.

Last month, a jury deadlocked on charges that Gage conspired with self-proclaimed medical consultant Howard Awand and Las Vegas physicians to inflate medical costs and boost legal settlements while protecting the participating surgeons from medical malpractice lawsuits.


Most Popular Stories
  • MOUNT CHARLESTON: Four die in plane crash
  • Two couples died in crash
  • NORM: Steve Wynn goes for mega-yacht
  • FAMILY SERVICES: Three visits preceded boy's death
  • NORM: Kirshner works on big Vegas project
  • NORM: Playboy models in state spotlight
  • Body of diver who jumped off 90-foot Lake Mead cliff found
  • NORM: Playboy 'coed': Dad's OK with it
  • NORM: Elvis fan club will have star its way
  • NORM: Curtain falling on Stage Deli



    • Gage's legal team claims Kabins' testimony will contradict that of Dr. John Thalgott, a former partner who testified on behalf of the government after being granted immunity.

    On Monday, U.S. District Judge Justin Quackenbush said that if the government failed to offer Kabins immunity by Friday, he would dismiss the charges against Gage. A new trial for Gage is slated to begin May 27. It was unclear late Friday whether Quackenbush would follow through with his threat after receiving the government's 25-page motion.

    An assistant to Thomas Pitaro, Gage's attorney, said Pitaro does not comment on pending cases.

    "We're still very pleased with Judge Quackenbush's original ruling, and we will wait to see how it develops," said attorney David Chesnoff, who represents Kabins.

    The charges against Gage stem from a case involving Melodie Simon, who in August 2000 went to Sunrise Hospital and Medical Center and had an operation to replace screws holding together fused lumbar discs. She expected to spend three days in the hospital.

    But Simon, then 41, began suffering weakness in her legs and testified that, panicked about her worsening condition, she alerted hospital staff. A sac protecting her spine had been punctured, causing internal bleeding that ultimately resulted in permanent paralysis.

    Thalgott, one of the surgeons who performed the operation, left town for a fishing expedition immediately following the procedure. Kabins, the other physician, waited 11 hours to perform an emergency operation to release the pressure from Simon's back, according to the government.

    The government claims Kabins was a member of the network of doctors and lawyers who shared kickbacks from their scam. He is considered a target of the investigation but has yet to be indicted on any criminal charges.

    Simon hired Gage to determine what went wrong and weigh the possibility of filing a lawsuit against those responsible. Gage told Simon that her case was solid and could render a settlement of between $8 million and $12 million, according to the government. Prosecutors said Kabins was an easy target.

    "The government contends and offered testimony at the first trial, including that of various experts, that Ms. Simon's paralysis was the result of medical negligence on the part of Dr. Kabins," according to court documents filed by prosecutors.

    But Gage didn't pursue medical malpractice lawsuits against Kabins or Thalgott. Instead, he successfully sued anesthesiologist Dan Burkhead and Sunrise Hospital for a total of $2.3 million. After attorneys fees and associated costs, Simon received $1.3 million, an amount that she testified will not cover the cost of her ongoing medical needs.

    In exchange for backing off the surgeons who worked closely with Awand, according to the government, Awand referred a lucrative case to Gage that eventually resulted in an $18 million settlement.

    Thalgott testified that he, Kabins and Gage met secretly in 2001 to devise a plan to blame Burkhead for Simon's tragic condition. The surgeons agreed to tailor their testimony at Simon's trial to match the strategy, Thalgott said.

    Kabins approached the government in February, just days before Gage's three-week trial commenced and a month after he was informed that he was a target in the investigation. Kabins signed a proffer agreement with prosecutors, meaning his statements cannot be used against him directly if he is indicted and goes to trial. The government can use the information only to further its investigation.

    Kabins told authorities that if Gage had filed a lawsuit against him, he would have "fought it tooth and nail and would have won the case against him," court documents say. Kabins also told federal authorities that Gage never guaranteed during the secret meeting that he would not file malpractice lawsuits against Kabins and Thalgott.

    In his order, Quackenbush acknowledged that "immunity is ordinarily left to the discretion of the prosecutor," but he went on to say that the court can step in if it is believed a witness who could support the defense is prevented from testifying by the government.

    "Principles of fairness and justice dictate that the defendant is entitled to have the testimony of Dr. Kabins presented to the jury," Quackenbush wrote.

    The government plans to appeal Quackenbush's ruling if he fails to drop his order.

    Prosecutors offered protection to Thalgott and Dr. Ben Venger, a surgeon who admitted on the stand that he committed perjury in past trials, because they approached the government and requested immunity in 2006. Neither was considered a target or subject of the investigation.

    Kabins became aware of the investigation in 2005 after receiving a grand jury subpoena. He was informed that he was a target in January. The request for immunity was filed in April. In addition, Thalgott and Venger admitted to wrongdoing, according to the motion, while Kabins has not.

    According to the government's motion, it is extremely rare for a judge to order immunity for the target of an ongoing investigation. In the few cases when it has occurred, the U.S. Court of Appeals has overturned the decision.

    "The Ninth Circuit clearly and unequivocally recognizes that the limited exception for immunizing a defense witness does not apply when the potential witness is himself a target of an investigation into the very conduct about which he would testify," the motion says.

    In 16 published decisions and in more than 30 unpublished opinions, the Ninth Circuit did not once require the government to grant immunity, according to the motion.

    The government claims Kabins has a joint defense agreement with Gage and declined during his meeting with federal agents to discuss information he received from or provided to Gage.

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



    Leave Your Comment 10 Reader Comments
    Terms & Conditions
    The following comments are provided by readers and are the sole responsiblity of the authors. The reviewjournal.com does not review comments before publication nor guarantee their accuracy. By publishing a comment here you agree to abide by the comment policy. If you see a comment that violates the policy, please notify the web editor.

    Some comments may not display immediately due to an automatic filter. These comments will be reviewed within 48 hours. Please do not submit a comment more than once.
    Current Word Count:

    Vegas Native wrote on May 05, 2008 10:52 AM: If the motion truly contained the line: "Trial testimony by Kabins under grant of immunity would seriously jeopardize the possibility of charging Kabins," then you can see the type of legal juggernauts the Guvernment has handling this case.


    lv native wrote on May 03, 2008 01:24 PM: Man, there's a lot of people sticking up for Kabins. How many people know anything about him? He's a great Plaintiff doc, which means he's very good at padding medical bills so that a Plaintiff can recover more in a lawsuit. He's made it a lucrative business for years. He pads the bills so the attorneys makes more on a case and he puts more in his pocket. No, I'm with you Mara, I am not an attorney, I'm much lower in the food chain. I do not know about a conspiracy between the docs and lawyers, but it does make sense given how Kabins works. I'm from a legal family and a medical family. The medical side says Kabins performs surgery whether it's needed or not. He's a great surgeon, but not ethical. The legal side says they can't believe it's taken so long for him to get caught. While Thalgott is no better, he just decided to roll over and save his skin. It was explained to me that Kabins has to have immunity or he just takes the 5th on everything so he doesn't incriminate himself. Loopholes everywhere. I think everyone should go down, but that's not going to happen. It's been a racket for years. As for the judge, it sounds about right "Quack"enbush. At this rate, everyone will get off and it will be business as usual for all invloved.


    MIKE wrote on May 03, 2008 01:02 PM: mara, ignorance is unacceptable when putting it out for public review!!! Ms Simon was NOT "paralyzed by this Dr. Kabins". She sustained a complication from a surgery performed by Dr. Thalgott. Dr. Thalgott had immediately "left town"?!?... While Dr. Kabins WAS eventually called in to cover, there WAS intervention which had already been performed prior to his arrival. The issue of "internal bleeding" and waiting "11 hours to perform an emergency operation" is purely speculative on behalf of the government and requires further testimony from someone other than those who have already been caught as CHEATS to all of us for failing to pay taxes and then granted immunity for them to squeal like the pigs that they are. Please let's keep the big picture in focus. Only half of the story has been told so far...the quite evident "dirty" half! The government needs to "clean up" their agenda and simply recognize to whom they've given immunity...cheaters. Not only should you WANT the whole story, but you NEED the whole story before you sound-off and appear sooo ignorant.


    I'm with you Mara wrote on May 03, 2008 12:01 PM: You summed this up beautifully.

    Also it is so obvious when the attorneys/judges get on this blog and try to hide that they are attorneys/judges.

    Sorry fellas/felletts we see through the spin.


    curious wrote on May 03, 2008 10:37 AM: mara, i am for criminals going to prison. but, you sound like the "inquisition." that is why we have trials and judges. what do you know that any of these "people" did wrong? you don't know anything about the case other than what the govt is broadcasting. all, the judge did is tell the govt that they have to give gage a fair trial. are you against that? as far as the rest of you, the grant of immunity is to protect gage's right to have ALL the truth, not the "truth" that the govt controls. and, by the way, how do you know dr. kabins did anything wrong, malpractice, or criminally? gage just wanted a trial where all the evidence comes out. by the way, what is wrong with lawyers socially interacting with judges. that is not a crime, and no judge has been accused of anything. see, the problem is that in every case there is a winner and loser. a lot of you are losers (in trial and out) and figure when you lose it must be a crooked judge. it may be that you were wrong, or that you got a bad lawyer. that may explain your anger and hatred of everybody.


    mara wrote on May 03, 2008 10:00 AM: I am sick and tired of all of the dirty doctors in this scandal being treated with such concern while the lawyers are being strung up. What the doctors did was clearly worse as they are playing with people's lives and now poor Melodie Simon has been paralyzed by this Dr. Kabins and he makes a deal with some dirty lawyer to walk away from his own negligence without repercussion, and that stupid judge is going to give him immunity!!!! This is a travesty. Not evn the law is on the judge's side. I wonder what the relationship is between the judge and the good doctor? I hope everyone involed in this disgusting demonstration of greed and immorality is tried, convicted, and spend some time in a jail cell, instead of remaining free to hurt and rip off this community any more.


    Lanni wrote on May 03, 2008 09:44 AM: Maybe, they should indict Kabins now.

    These back door deals from the eighth district are just the way business is conducted there.

    Why did Quackenbush disallow the pictures of the judges partying with this bunch?


    Joe wrote on May 03, 2008 08:17 AM: Bill - If you are innocent, why would you approach the government before they tell you you are a target? Can you name one criminal attorney that would suggest you testify without immunity after you have been told you are a target? Why do you think the government would send a target letter right before the trial unless they didn't want Kabins to testify? This is another example of the government using its power to select the "truth" they want to present and preclude all other evidence. If the government couldn't convict Gage without any defense in the first trial, they certainly couldn't convict him with Kabins' testimony in a subsequent trial. It sounds like a hail mary on appeal is their only way out.


    Bill wrote on May 03, 2008 07:51 AM: If Kabins is innocent and did nothing wrong, he doesn't need immunity. Interesting how he approached the government only after he learned he might be a target.


    curious wrote on May 03, 2008 07:07 AM: wrong,as usual. the 9th circuit did not reverse judges who ordered immunity. the 30 cases she is talking about were cases where the judge exercised his discretion not to order immunity, the defendants were convicted, and the 9th circuit held that the judge did not abuse his discretion by failing to order immunity. there are NO cases where the 9th circuit, or any other circuit, has reversed a case where the judge said either grant immunity or i will dismiss the case. bottom line, the judge was fair, the case is going to be dismissed, and the US attys office has got very little chance of getting this judge reversed. reversals are rare, and when it involves the judge's discretion even rarer.