By Emily Cox
The former top executive and founder of opioid manufacturer Insys Therapeutics told a federal judge Monday that an Insys expert witness double-crossed him and other executives facing racketeering charges with plans to testify against them in the government’s case over an illegal kickback scheme to bribe doctors to prescribe the fentanyl spray, Subsys.
According to the government’s case, billionaire Insys founder John Kapoor and his CEO predecessor Michael Babich created a sham speaker program to lure prescribers and feloniously boost Subsys sales. Earlier this month, the government named five pain management experts who would be testifying on its behalf. To their “great surprise,” the executives found that Insys expert witness Dr. Christopher Gilligan is among them.
Insys Expert Witness Decides to Go to Bat for the Government in Racketeering Case
Before the government retained him, Gilligan repeatedly met with Insys attorneys and discussed confidential case strategy with them throughout this past spring. At this time, Gilligan told the attorneys that he had not discussed the case with the government and would be open to acting as an Insys expert witness.
However, in May, Gilligan told Insys attorneys that his employers wouldn’t permit him to serve as an Insys expert witness in the case and offered to help find a replacement.
Following the government’s announcement that Gilligan would be a potential expert for their cause, the executives claim they tried to figure out what happened. They notified the government about their involvement with Gilligan and requested assurance that the government would drop him as a witness.
The executives said that the government told them that it informed the doctor that it would not communicate with him until the matter was settled.
Executives Fight Government Retention of Insys Expert Witness
Then, the government wrote in a letter Friday that an assistant U.S. attorney had first spoken to Gilligan five days before the expert witness disclosure deadline and that Gilligan had told the attorney of his previous encounters with Insys lawyers. But, no one on the prosecution team asked the Insys executives if they had engaged in confidential conversations with the Gilligan.
“Instead, in an apparent rush to meet its expert disclosure deadline, the government relied on the descriptions and understandings of Dr. Gilligan — who is not an attorney — to assess the incomplete background of the conflict issue in a vacuum,” the executives wrote.
Based on the government’s letter, the executives claim Gilligan misrepresented the “substantial, confidential” nature of his communications with their attorneys, including the number and length of these conversations, as well as his previous desire to serve as an Insys expert witness until his employer said no to his involvement.
The executives further maintained that the government already has four additional pain management expert witnesses with two of them expected to produce testimony similar to Gilligan’s.
“More fundamentally, prosecutors should not be excused for waiting until the last moment to conduct their expert search, or for failing to timely consult with Defendants about the conflict issue,” the executives wrote. “The government has had plenty of time to identify and consult with experts, having investigated this case for over five years and presented two indictments to the grand jury alleging life-altering charges against defendants that have caused irreparable damage to their reputations and livelihood.”
The Case Behind the Insys Expert Witness Double-Cross
According to the federal indictment, at least nine doctors and one nurse took bribes to distribute the fentanyl spray at or after intimate meetings or social parties that Insys organized and disguised as speaking events. These medical professionals went on to distribute the powerful opioid spray to people who did not need it for the FDA-approved purpose – to treat breakthrough cancer pain. Babich and company executive Michael J. Curry also directed the Insys call center to fraudulently tell insurance companies that patients required to spray to get them to cover the prescription cost.
Government prosecutors allege that Kapoor and Babich hired four sales executives to network with prescribers to put the plan into action. Consequently, Alec Burlakoff, Richard M. Simon, Sunrise Lee, and Joseph A. Rowan are the four other defendants in the case.
The executives argue that the conspiracy was actually a series of perfectly legal marketing strategies that the law’s “safe harbors” specifically protect. They maintain the indictment fails to adequately allege that the executive targeted doctors they knew would break the law.