Alleged Attempt to Intimidate Defense Experts Does Not Warrant a New Trial

Written on Thursday, August 13th, 2020 by T.C. Kelly
Filed under: General

Salomon Melgen was charged with operating a scheme to defraud Medicare. The charges were based on allegations that he deliberately misdiagnosed his patients so he could bill the government for unnecessary treatment. A jury found Melgen guilty of 67 counts of fraud. The court sentenced Melgen to 17 years in prison.

On appeal, the defense argued that attempts by a government expert to intimidate two defense experts should result in a new trial. The Court of Appeals for the Eleventh Circuit rejected that argument and affirmed the conviction.

Facts of the Case

Melgen was an ophthalmologist. He focused his practice on age-related macular degeneration. That disease comes in two forms: “wet” and “dry.” The dry version is much more common and is essentially untreatable. The wet version afflicts no more than 15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of patients who suffer from macular degeneration, almost all of whom are white.

The government became suspicious because 97{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of Melgen’s billings to treat macular degeneration were for the wet version of the disease. That in itself might not be unusual, since only the wet version is treatable. However, all of Melgen’s billings for macular degeneration treatment of African American patients were for the wet version of the disease. The wet version rarely affects African Americans.

In addition to billing for treatment for those who did not have a treatable disease, the government alleged that Melgen billed for treatment of patients who had healthy eyes or patients who were legally blind. The government presented evidence that Melgen billed for 96 treatments of a prosthetic eye.

Melgen also administered an expensive drug to patients that could slow or stop the progress of the wet version of the disease. The drug was ineffective if the patient had the dry version. The government produced evidence that Melgen gave the drug to patients who would not benefit from it.

The government argued that Melgen not only administered an unnecessary medication that costs $2,000 per vial, but that he improperly administered three doses from a vial that contains only a single dose. That evidence suggested that Melgen thus tripled his medication reimbursement requests and pocketed the difference.

Finally, the government contended that Melgen used laser surgery to correct the wet version of the disease. The government argued that medication is an effective treatment and that laser surgery is almost never medically necessary.

Expert Witness Intimidation

Among the other arguments made on appeal, Melgen complained that the government’s expert witness intimidated two defense experts during breaks in the trial. While the appellate opinion does not elaborate on the nature of those encounters, a news report indicates that the prosecution’s expert “harangued” the defense experts during a confrontation in a parking lot. The prosecution expert allegedly “intimidated one of the defense witnesses by saying his reputation would be ruined for testifying in favor of Melgen.”

If the reports were true, the government expert’s conduct would certainly be unprofessional. The role of an expert witness is to provide information to the party that hires the expert and to testify about relevant opinions the witness has formed. Berating the other side’s experts is not part of the job description.

The appellate court noted that there was “contact between a government witness and two defense witnesses” but did not discuss the circumstances of that “contact.” Instead, it was satisfied that the district court “conducted a brief hearing before deciding that the contacts had not been prejudicial in the end because no testimony had been altered.”

In the end, the appellate court found no abuse of discretion in the district court’s refusal to grant a remedy for the alleged attempt to intimidate the defense experts. The district court declined to order a new trial or to conduct an evidentiary hearing to find out exactly what happened in the parking lot. The appellate court was satisfied with the district court’s decision not to explore the facts because the defense could produce no evidence that the intimidation changed the content of their experts’ testimony. “No harm, no foul” appears to be the legal standard that governed the outcome.

Lessons Learned

An attempt by government witnesses to intimidate defense experts should result in more that a “brief hearing.” In some circumstances, it may require the kind of inquiry that leads to a criminal prosecution for witness tampering. Unfortunately, since the decision to bring criminal charges is up to the government, they are generally lodged against people who intimidate government witnesses, not against government witnesses who attempt to intimidate defense experts.

One lesson to learn from the Eleventh Circuit decision is that “it’s good to be the government.” Had defense witnesses tried to intimidate government witnesses, the court would likely have taken a firmer stand to protect the integrity of the proceedings.

A more important lesson is that no expert should attempt to intimidate an opposing expert. Witness intimidation is a crime. The best practice for experts is to avoid any contact at all with an opposing expert during a trial. Keeping a safe distance from opposing experts will avoid even the appearance of an improper contact.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.