Sarah Hall, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “The Insys Case Made History. Why an Exec's Appeal May Not,” by Chris Villani. (Read the full version – subscription required.)
Following is an excerpt:
Insys Therapeutics Inc.'s founder has asked the U.S. Supreme Court to hear his appeal after being convicted of orchestrating a scheme to bribe doctors to prescribe opioids, a landmark case that rested on novel legal theories but may not pique the justices' interest.
A Boston jury found John Kapoor and four other Insys higher-ups guilty in 2019 of using a sham speaker program to funnel cash and perks to doctors in exchange for writing more prescriptions and higher doses of Insys' expensive fentanyl spray, Subsys. It was the first successful prosecution of top pharmaceutical executives tied to the opioid crisis.
The one-time billionaire argued earlier this month that the top court has a chance to clarify how juries should weigh the knowledge of a non-physician when it comes to the prescribing practices of doctors charged with illegal distribution.
But attorneys practicing in the health care fraud space told Law360 the question may not be as muddled as Kapoor would have the high court believe. …
Kapoor's appeal stems from an August First Circuit ruling that reinstated the CSA violation."The panel reinstated the jury's verdict based on a 'tacit understanding' between petitioner and physicians," Kapoor's petition states. "[H]owever, the court of appeals overlooked that petitioner — who is not a medical doctor and has never prescribed any drug — could have relied on the good-faith statements of physicians that their actions adhered to the standards of professional practice."
Sarah Hall, a former federal prosecutor now working in the health care investigations and enforcement group at Epstein Becker Green, said it could be difficult to argue for undoing a jury verdict reached after weeks of testimony."If you go back and look at the fact that the jury, who sat through a 51-day trial, hearing all of the evidence, did not see it in the way that the district court judge did, it's a pretty big deal to try to back out of the jury's verdict and the jury's view on this issue," Hall said, adding that Kapoor's case may not be the right one to test the liability theory when it comes to non-physicians. …
Even if Kapoor prevails, Hall doubted it would force prosecutors to hit — or even tap — the brakes on bringing similar conspiracy cases.
"Conspiracy charges are the darling of the federal prosecutor," she said. "It's perceived as easier to prove beyond a reasonable doubt that someone was involved in a conspiracy because of their dynamic. I think potentially the outcome of this case is not as momentous as one might think it may be."
