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United States v. Luthra

United States District Court, D. Massachusetts

January 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RITA LUTHRA, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO COMPEL DISCOVERY OF GRAND JURY INSTRUCTIONS (DKT. NO. 98)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On August 1, 2017, Defendant Rita Luthra, M.D., was charged in a three count superseding indictment with aiding and abetting the wrongful disclosure of individually identifiable health information, in violation of 42 U.S.C. § 1320d-6(a) and 18 U.S.C. § 2 (Count One), tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3) (Count Two), and obstructing a criminal investigation of a health care offense, in violation of 18 U.S.C. § 1518 (Count Three) (Dkt. No. 89). Currently pending before the court is Defendant's motion to compel the government to provide the instructions on the law that were delivered to the grand jury that handed down the original indictment and the grand jury that returned the superseding indictment (Dkt. No. 98). Defendant contends that she is entitled to this information to develop her claim of vindictive prosecution. The government opposes Defendant's motion (Dkt. No. 104).

         After consideration of the pleadings and after argument on October 20, 2017, Defendant's motion to compel discovery of the instructions that were delivered to the grand juries is DENIED for the reasons detailed below.

         II. Background

         A. Facts Alleged in the Superseding Indictment

         Defendant was a gynecologist at the Women's Health and Education Center in Springfield, Massachusetts (Dkt. No. 89 ¶ 1). The charges arose in the aftermath of her involvement with a Sales Representative ("Sales Rep. # 1") of Warner Chilcott, a pharmaceutical company that distributes and sells Actonel and Atelvia, which are included in a class of drugs known as bisphosphonates that are prescribed to prevent and treat osteoporosis (id. ¶¶ 2, 4, 5).

         Because Defendant was a "high volume prescriber of bisphosphonates in western Massachusetts, " in October 2010, Sales Rep. # 1 asked Defendant to participate in Warner Chilcott's speaker program (id. ¶ 5). Defendant allegedly agreed to become a speaker at medical education ("med. ed.") events in her office (id.). The government alleges that these med. ed. events involved Defendant speaking to Sales Rep. # 1 for about thirty minutes while Defendant ate food that Sales Rep. # 1 provided to Defendant and her office staff (id. ¶ 6). Between October 2010 and November 2011, Defendant allegedly received a total of $23, 500 from Warner Chilcott for speaker training and for speaking at approximately thirty-one med. ed. events (id.). The government alleges that Sales Rep. # 1 provided food to Defendant's office and paid Defendant speaker's fees to induce Defendant to write more prescriptions for Warner Chilcott's products (id.).

         Insurers "typically identified the drugs that they paid for on behalf of their members [so-called 'covered drugs'] in a list called a formulary" (id. ¶ 9). If a drug was not covered on formulary, many insurers required a prior authorization ("PA") from a physician, explaining the medical necessity for the drug, before the insurer would pay for it (id. ¶ 10).

         In January 2011, Warner Chilcott launched Atelvia as a replacement for Actonel (id. ¶ 13). Because a less expensive, generic bisphosphonate was available, the majority of insurance plans did not include Warner Chilcott's Atelvia on their formularies and insurers required a PA to cover it (id.). Defendant began receiving "numerous" denials from insurance companies for the Atelvia prescriptions that she wrote (id. at ¶ 14). Due to the high volume of denials, Defendant allegedly asked Sales Rep. # 1 to assist one of Defendant's medical assistants in completing PAs to obtain insurance coverage for Atelvia (id.). The government alleges that Sales Rep. # 1 was given access to Defendant's patients' medical records to complete this task (id.). Defendant purportedly signed the PAs that Sales Rep. # 1 prepared (id.). Because Defendant's patients' records contained "individually identifiable health information" or "protected health information" as defined by the Health Insurance Portability and Accountability Act (HIPPA), the Act and the regulations permitted only the patient, the physician and her staff, and the insurance company to be involved in the PA process (id. ¶¶ 7, 14). The government alleges that Defendant violated 42 U.S.C. § 1320d-6 and 18 U.S.C. § 2 by disclosing patients' confidential health information to Sales Rep. # 1 (id. ¶ 12).

         On February 10, 2014, Special Agents from the Office of the Inspector General of the United States Department of Health and Human Services ("HHS") questioned Defendant about her relationship with Warner Chilcott and Sales Rep. # 1 (id. ¶ 17). Defendant allegedly told the HHS agents that Sales Rep. # 1 assisted with the preparation of PAs, but did not have access to patients' confidential medical information (id. ¶ 17). The government alleges that after Defendant's interview, she directed her medical assistant, who Sales Rep. # 1 had assisted in preparing the PAs, to tell the HHS agents that Sales Rep. # 1 did not have access to patients' records (id.). Defendant purportedly repeated this instruction to the medical assistant the next day and said that "there is a HIPPA law and there would be hefty fines for them both" if the investigators learned that they shared medical records with an unauthorized person (id.). Defendant's statements to the medical assistant form the basis of the witness tampering charge (id.).

         The government further alleges that, during the February 10, 2014 interview, Defendant also told the HHS investigators that Warner Chilcott paid her to review and opine on clinical research (id. ¶ 20). However, when the HHS investigators interviewed Defendant again about a month later on March 7, 2014, she allegedly told them that Warner Chilcott paid her $3, 250 in 2010 for speaker training and $19, 500 in 2011 for reading abstracts of clinical trials and writing a 5, 000 word research paper, which she shared with Warner Chilcott and the World Health Organization (id. ¶ 21). The government alleges that Defendant obstructed its investigation of a health care offense by knowingly making false representations to the investigators (id. ¶¶ 19, 21).

         B. Procedural History

         On October 21, 2015, a grand jury returned a three-count indictment ("original indictment") against Defendant, charging her with violating the Anti-Kickback Statute ("AKS"), 42 U.S.C. § 1320a-7b(b)(1)(B) (Count One); wrongfully disclosing individually identifiable health information, in violation of 42 U.S.C. § 1320d-6 (Count Two); and obstructing a criminal investigation of a health care offense, in violation of 18 U.S.C. § 1518 (Count Three) (Dkt. No. 3). On October 12, 2016, the undersigned denied Defendant's motion to compel discovery that she contended would support her claim of selective and vindictive prosecution (Dkt. No. 37, 53). See United States v. Luthra, No. 15-cr-30032-MGM, 2016 WL 5946864, at *8 (D. Mass. Oct. 12, 2016). On July 7, 2017, Defendant moved to dismiss the indictment (Dkt. No. 87). On August 1, 2017, before the court ruled on Defendant's motion to dismiss, a second grand jury returned the superseding indictment (Dkt. No. 89). Because the charges in Counts One and Three of the superseding indictment also appeared in the original indictment, the presiding judge considered so much of Defendant's motion to dismiss as it related to those counts and denied it on September 26, 2017 (Dkt. No. 100). The judge rejected Defendant's contentions that Counts One and Three of the superseding indictment should be dismissed because they lacked specificity and ...


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