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United States v. Chalhoub

United States District Court, E.D. Kentucky, Southern Division

June 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANIS CHALHOUB, M.D., Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         This 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. Chalhoub.

         I

         The current case “stems from a broader health care fraud investigation of unnecessary cardiac procedures at Saint Joseph Hospital in London.”[1] [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[2] “regarding their hospitals in Kentucky, including functioning as a liaison to local federal prosecutors on certain self-disclosure issues.” [R. 30 at 2.]

         In 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.]

         On 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.]

         In 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.]

         As part 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.]

         The 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.]

         Mr. 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.

         Dr. 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.” [Id.]

         Oral 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. ...


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