Melissa Jampol Quoted in “Hints of ‘Sloppy’ Prosecution Could Haunt Esformes Trial”

Law360

Melissa L. Jampol, Member of the Firm in the Health Care & Life Sciences and Litigation practices, in the firm’s New York office, was quoted in Law360, in “Hints of ‘Sloppy’ Prosecution Could Haunt Esformes Trial,” by Carolina Bolado. (Read the full version – subscription required.)

Following is an excerpt:

Jurors seated Monday for the $1 billion health care fraud case against Miami businessman Philip Esformes won’t hear details about the pitched battle over prosecutorial errors that a judge called “sloppy” and “careless,” but experts say pretrial rulings leave just enough wiggle room for the defense to hint at it and derail a conviction.

U.S. District Judge Robert Scola has barred Esformes from bringing up evidence during the trial that related to prosecutorial misconduct found by U.S. Magistrate Judge Alicia Otazo-Reyes, but the limits of Judge Scola’s one-sentence order on the issue will likely be tested in court by the defense. …

The record-setting case — the largest health care fraud prosecution brought by the government — involves allegations of kickbacks and medically unnecessary services routinely supplied at the network of 30 nursing homes and assisted-living centers run by Esformes. Prosecutors say the scheme resulted in $1 billion in false billing and at least $464 million in improper reimbursement payments from Medicare and Medicaid.

It’s a case that health care fraud practitioners are watching closely not just because of the massive dollar figure but also because of the controversy over the government’s actions with regard to documents and recordings that Esformes says are privileged.

“I think the issues involving the abuse of the attorney-client privilege by the prosecutors really transform this case from a health care fraud case into a case of concern,” said Melissa Jampol, a white collar defense attorney at Epstein Becker Green.

At issue are allegedly privileged documents taken during a July 2016 raid of Esformes’ Eden Gardens Assisted Living Facility — where attorney Norman Ginsparg, who worked for Esformes, maintained an office — and secret recordings of Esformes by alleged co-conspirators Guillermo and Gabriel Delgado. …

Still, the burden for the government is high, as prosecutors will have to prove that Esformes intended to rip off Medicare and Medicaid, which can be murky in health care fraud cases, according to Jampol. She said they’ll also have to break through the numerous shell companies that owned the facilities and connect the alleged fraud to Esformes directly.