Insys Prosecutors Push Back Against Expert Witness Disqualification

By Emily Cox
Insys Prosecutors
flickr/Bryan Furnace

The founder of Insys and several former top executives at the opioid company are accusing a doctor of double-crossing them by agreeing to testify for the federal government in an upcoming racketeering trial after meeting with the pharmaceutical company’s attorneys on multiple occasions. Consequently, the company is moving for the court to disqualify the expert from testifying; however, the federal government fought back Tuesday, saying that the doctor should still be able to take the stand for Insys prosecutors.

The government retained Dr. Christopher Gilligan as one of numerous pain management experts to possibly testify against Insys’ founder, billionaire John Kapoor, and his predecessor as CEO, Michael Babich, who Insys prosecutors allege created a fraudulent speaker program to conceal illegal kickbacks for doctors to prescribe the powerful Schedule II narcotic Subsys and illicitly boost sales. According to Insys executives, Gilligan met with their attorneys several times before the government retained his assistance. The executives further assert that Gilligan learned confidential information about their case and defense strategy during these meetings.

However, Insys prosecutors pushed back Tuesday, telling District Judge Allison D. Burroughs that the court should allow Gilligan to testify, arguing that the information he learned from defense lawyers wasn’t significant enough to substantiate an agreement of confidentiality.

“The lack of any confidentiality agreement is a telling factor, which weighs heavily against the defendants’ claims,” the government stated in its opposition. “The defendants do not assert that they advised, or even requested, that Dr. Gilligan keep his interactions with counsel confidential.”

“Despite that omission, defense counsel claim that they ‘repeatedly’ held ‘privileged calls and meetings’ with the witness during which they shared confidential information,” prosecutors continued. “That experienced counsel failed to contemplate the need to simply request confidentially from a possible expert strongly suggests confidentiality was simply unnecessary.”

Insys Prosecutors Opposition to Expert Disqualification

Gilligan, who the government has retained in other cases, told Insys prosecutors about his meetings with defense counsel when the government first reached out to him in July. According to Gilligan, defense lawyers asked him about off-label marketing and if he had prescribed Subsys. Prosecutors argue that these lines of discourse do nothing to tip the defense’s hand. Furthermore, if they do, then the defendants should have exercised more caution.

“This court should not reward the defendants’ failure to protect whatever confidential information they believed they needed to protect, particularly from a doctor whom the government has previously called upon,” the opposition stated. “Such a ruling would be contrary to the interests of justice.”

Insys prosecutors conceded that confidentiality isn’t exclusive to having an agreement. However, they added that it is ““also true that this court can reject any assertion that it is objectively reasonable to believe that a confidential relationship existed where experienced counsel, from respected law firms, failed even to mention confidentiality in five different meetings with the witness.”

Insys Executives Motion to Disqualify

The defendants’ motion to disqualify indicates that Gilligan met with their lawyers repeatedly, discussing confidential case strategy with them. Gilligan informed them that he had not spoken about the case with the government, saying he would be open to acting as a defense witness. In May, Gilligan notified them that his employer would not allow him to serve as a witness in the case and even offered to help find a replacement.

After discovering that the government had named Gilligan as a potential expert, the executives tried to figure out what happened. They said they informed the government about their past involvement with Gilligan and asked for assurance that the government would drop him as an expert witness. According to the defendants, the government told them that it would not communicate with the doctor until the court settled the matter. However, the government wrote in a Friday letter that an assistant US attorney had spoken with the doctor five days before its expert witnesses’ disclosure deadline and that Gilligan had told the government lawyer he had previously met with the defendants’ attorneys.

The Insys prosecutors included a footnote in Tuesday’s filing, saying that they would have no further contact with Gilligan until the court decided on the motion. If the court opts to remove Gilligan as a witness, prosecutors requested 60 days to locate a replacement.

Insys Racketeering Indictment

The Insys indictment claims that at least nine doctors and one nurse took bribes to distribute the fentanyl-based spray. The company organized parties or intimate meetings to disperse these payments, cloaking them as speaking events to people who did not need it to treat breakthrough cancer pain, which is the only FDA-approved use for Subsys. Company executive Michael J. Gurry and Babich reportedly directed the Insys call centers to fraudulently tell insurance companies that patients needed the spray to get them to cover the prescription cost.

Federal prosecutors say Kapoor and Baich hired four sales executives to network with prescribers and launch the plan into action. Alec Burlakoff, Sunrise Lee, Joseph A. Rowan, and Richard M. Simon are the other defendants in the case.

The executives claim the conspiracy is actually a series of perfectly legal marketing strategies that “safe harbors” laws specifically protect. They also argue the indictment fails to sufficiently show that the executives targeted doctors they knew would break the law.

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