United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
matter is before the Court on the United States's request
to investigate whether to disqualify Defense counsel, Kent
Wicker, from representing Dr. Chalhoub in the current case.
Though a formal motion has not been filed, this Court is able
to assess a request for disqualification without a formal
motion. See Moss v. United States, 323 F.3d 445, 471
(6th Cir. 2003) (“[A] trial court has the duty to
inquire adequately into a trial counsel's conflict of
interest if it knows or reasonably should know that a
particular conflict exists.”) Both parties have
presented simultaneous briefing and oral argument took place
on May 26, 2017. For the following reasons, this Court finds
that Mr. Wicker is disqualified from representing Dr.
current case “stems from a broader health care fraud
investigation of unnecessary cardiac procedures at Saint
Joseph Hospital in London.” [R. 29 at 1.] Saint Joseph
Health System “is a wholly-owned subsidiary of the
national nonprofit health organization Catholic Health
Initiatives  and operated” Saint Joseph Hospital in
London, KY. [Id.] Kent Wicker represented Catholic
Health Initiatives prior to 2012 “regarding their
hospitals in Kentucky, including functioning as a liaison to
local federal prosecutors on certain self-disclosure
issues.” [R. 30 at 2.]
2011, Mr. Wicker began assisting on a matter related to
“overutilization of stent procedures by Dr. Samesh
Patil at the St. Joseph's Hospital in London, Kentucky,
owned by CHI.” [R. 30 at 2.] Mr. Wicker attended
“interviews of several employees” by Government
investigators. [R. 30 at 2; R. 30-1 at 2.] Dr. Chalhoub was
not at issue in this case, though his name came up in some of
the interviews as another cardiologist in the hospital. [R.
30 at 2; R. 30-1 at 2.] After interviewing some of the
employees, another attorney, Daniel S. Reinberg of the
Chicago office of Polsinelli PC, took over the case. [R. 30
at 2.] Mr. Wicker asserts that his only involvement after
this point was to be copied on occasional letters or emails.
Mr. Wicker asserts that Mr. Reinburg's office billed
during that time for copying and bates stamping documents
produced to the government in response to a civil
investigation demand. [R. 30-1 at 2.]
March 10, 2011, three doctors from Saint Joseph Hospital in
London, KY, filed a qui tam complaint under the False Claims
Act “alleging that several doctors affiliated with SJL,
including Chalhoub, performed a variety of unnecessary
cardiac procedures, such as stents and pacemakers.”
[See R. 29 at 3; See U.S. ex rel. Jones v. Saint
Joseph Health System, Inc, 6:11-cv-00081-GFVT.] Though
Mr. Wicker does not recall it, he admits he would have read
the complaint when he received the unsealed complaint in the
summer or fall of 2012.” [R. 30-1 at 2.] Chalhoub was
not a named Defendant in the False Claims Act, but the
“complaint did allege that he had installed unnecessary
pacemakers.” [R. 29-3 at 32-34.] For example, the qui
tam complaint makes the following allegation:
Anis Chalhoub, M.D. . . . implanted a permanent pacemaker in
Patient C at Defendant St. Joseph London. Based on
Relators' treatment of Patient C and their review of the
medical records and imaging, the patient had no symptomatic
or documented arrhythmias to clinically justify the placement
of a pacemaker. It was not reasonable or necessary for the
treatment of the patient, and it subjected the patient to an
unreasonably increased risk of morbidity and mortality.
[R. 29-3 at 33.] In fact, the Government points out that
“one or more” of the same exact procedures named
in the qui tam complaint is at issue in the current case
against Dr. Chalhoub. [R. 29 at 10.]
response to the qui tam complaint, on September 29, 2011, the
Government sent a Civil Investigative Demand to SJHS.
[Id. at 4.] They demanded SJHS “produce
medical records . . . for 41 pacemaker procedures, many of
which Chalhoub performed, so that the government could
conduct a review of the records to determine if those
pacemaker procedures were medically necessary and
reimbursable.” [R. 29 at 5; R. 29-3 at 2; R. 29-3 at 3;
R. 29-3 at 28.] The Civil Investigation Demand was served on
Kent Wicker, as counsel for St. Joseph Health System. [R.
29-3 at 2.]
of its response to the Civil Investigation Demand, SJHS
“provided a privilege log . . . which contained a
number of entries that related to Chalhoub.” [R. 29 at
5.] Mr. Wicker was copied on this email. [Id. at 5.]
After an internal investigation following the qui tam
complaint, SJHS terminated Dr. Chalhoub's employment on
June 24, 2013. [Id.] On January 22, 2014, the United
States settled with SJHS and “[t]he “Covered
Conduct” released in the settlement agreement included,
among other allegations, the same alleged conduct by Dr.
Chalhoub that now forms the basis for the indictment in this
case.” [Id.] SJHS also agreed to cooperate in
the Government's investigation. [Id.]
Government presented an affidavit from Daniel Reinburg of
Polsinelli PC, who presented additional facts regarding Mr.
Wicker's representation. [See R. 29-1.] Mr.
Reinburg alleges that “[w]hile the government's
initial investigation appeared to focus on the procedures
performed by Dr. Patil, it became clear to [him] as SJHS
counsel that within a short period of time . . . the
government had initiated parallel civil and criminal
investigations of issues broader than just the procedures
performed by Dr. Patil.” [Id. at 3.] He based
this conclusion on contacts with the Eastern District of
Kentucky United States Attorney's Office and the
“information they began requesting from SJHS.”
[Id. at 3.] Mr. Reinburg alleges that, “by
September 2011, it was clear to [him] as counsel for SJHS
that the government's investigation related (or at least
in part) to Dr. Anis Chalhoub . . . and certain pacemaker . .
. procedures he performed” at Saint Joseph London. [R.
20-1 at 4.] Daniel Reinberg also reported that “SJHS
provided its initial response to the CID on October 28, 2011,
its supplemental response on May 18, 2012, and its second
supplemental response to the CID on April 5, 2013.” [R.
29-1 at 4.] Mr. Reinberg asserts that Mr. Wicker was listed
as counsel for SJHS on all these responses and “[s]ome
of the documents and information provided in the CID
Responses related to Dr. Chalhoub and pacemaker procedures he
performed . . . [and] . . . payment information from SJHS to
Dr. Chalhoub and contracts between SJHS and Dr.
Chalhoub.” [Id.] Mr. Reinberg claims that he
“continued to interact with Mr. Wicker up to, and
through, the period of the settlement, ” and that his
communications with Mr. Wicker related to the
“underlying facts . . ., but also the formulation of
legal strategy with respect to the investigation.”
[Id.] In contrast, Mr. Wicker claims he was not
involved in the defense or settlement of this case and
“learned about the settlement by reading the
newspaper.” [R. 30-1 at 2.] Finally, Mr. Reinberg
states that “SJHS has not, and will not, waive the
conflict of interest created by Mr. Wicker's
representation of Dr. Chalhoub.” [R. 29-1 at 8.]
Wicker was approached in mid-April 2017 to represent Dr.
Chalhoub. [R. 30 at 4.] He considered whether his
representation of CHI would impact his ability to represent
Dr. Chalhoub and appropriately reached out to the Kentucky
Bar Association Ethics Hotline in a timely manner.
[Id.] Mr. Wicker spoke with Frank Mellen, a partner
at Wyatt, Tarrant & Combs and a volunteer for the
Kentucky Bar Association Ethics Hotline Committee, about his
representation and Mr. Mellen “concluded that there was
no conflict precluding Mr. Wicker's
representation.” [Id. at 5.] This Court
acknowledges the careful thoughtfulness of Mr. Wicker in
seeking an ethics opinion before accepting representation.
Chalhoub has submitted an affidavit asserting that he wants
Kent Wicker to be the “lead counsel” in his case.
[R. 30-2 at 1.] He acknowledges that Mr. Wicker represented
CHI, but does not believe that Mr. Wicker's prior
representation “impairs his representation of [Dr.
Chalhoub], or gives [him] an unfair advantage.”
Argument was conducted on May 26, 2017, on this limited
issue. This Court requested Mr. Wicker return to the Kentucky
Bar Association and seek another opinion with the additional
information the Government provided concerning Mr.
Wicker's representation of CHI and SJHS. [R. 37 at 47.]
Mr. Wicker promptly submitted the additional information to
the Kentucky Bar Association. On May 31, 2017, Mr. ...