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."

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.