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refusing to strike allegation that defendant "'performed surgery at 4 to 5 times the local and national average'" in fraud case, as the figures were "directly relevant to defendant's motive to commit the scheme."
Summary of this case from United States v. EdwardsOpinion
Case No. 99-40099-01-DES.
Decided/Filed Date: May 22, 2000.
Plaintiff Counselors: Richard L. Hathaway, Assistant U.S. Attorney, Topeka, KS.
Defendant Counselors: Leslie A. Greathouse Gregory B. Hancks, Kutak Rock, Kansas City, MO; Thomas J. Kenney, Kutak Rock, Omaha, NE; Alan D. Stradder, Kutak Rock, Washington, DC.
MEMORANDUM AND ORDER
On April 19, 2000, the court held a hearing on the Government's Motion for Order Setting Deposition of Government Witness Esther S. for April 25, 2000, (Doc. 62) and the defendant's Motion Requesting Pretrial Production of Documents Pursuant to Subpoenas Duces Tecum (Doc. 64). The court took both motions under advisement.
The court issued previous orders allowing the deposition of Esther S. (Doc. 57) and ordering the parties to complete discovery by May 1, 2000 (Doc. 58). In order to comply with the court's schedule, the government wishes to conduct the deposition of Ester S. on April 25, 2000. The defendant argues that he needs information, not provided by the government, to effectively cross-examine Esther S. at the deposition. Defendant subsequently filed a motion requesting Rule 17(c) subpoenas.
The court finds that the following requested information is needed to effectively cross-examine Esther S.: from Bethany Medical Center, the records of the June 1995 emergency room visit, March 1996 coronary surgery, March 1996 bypass surgery, April 1997 coronary procedure, and 1999 cognitive assessment/amnesia; from Providence Medical Center, the records of the February 1999 admission and June 1999 Pa. D. C. procedure; from Saint Luke's Hospital records of the July 1996 bypass surgery; and from all those medical institutions, policies and forms regarding informed consent. These requests satisfy the Nixon requirements of relevance, admissibility, and specificity. United States v. Nixon, 418 U.S. 683, 700 (1974). However, the court has modified the requested subpoenas, as the information requested in the motion is not identical to that in the proposed subpoenas.
The court will not grant defendant's request for the medical records of Dr. Mario Gumucio and Dr. Sabato Sissillo because defendant has not shown relevance. Defendant has not described what role these doctors played in the treatment of Ester S. or how they might have information regarding the alleged pre-existing medical condition. The court will also not grant defendant's request for Providence Medical Center's records from August 1999, as "illegible" copies of those records have already been supplied by the government. At the hearing, the government agreed to provide legible copies. Such a dispute should be resolved between the parties, and not addressed in a Rule 17(c) request.
The court will issue the modified Rule 17(c) subpoenas. The subpoenas are to be served by a Kutak Rock LLP representative on the designated hospital/medical center no later than Friday, April 21, 2000, at 5:00 p.m. The subpoenas shall direct that the hospital/medical center to make copies of the subpoenaed material. Defendant shall be responsible for the costs associated with the subpoenas, and ensuring prompt payment for the copies so they can be timely delivered to the court. Copies of the subpoenaed information shall be delivered to the Chambers of the Honorable Dale E. Saffels no later than Monday, May 1, 2000, at 5:00 p.m. The parties shall set a date for the deposition of Esther S. no later than Friday, May 12, 2000 at 5:00 p.m.
IT IS THEREFORE BY THE COURT ORDERED that the government's Motion for Order Setting Deposition of Government Witness Esther S. for April 25, 2000, (Doc. 62) is denied. The parties shall set a date for the deposition of Esther S. no later than Friday, May 12, 2000 at 5:00 p.m.
IT IS FURTHER BY THE COURT ORDERED that the defendant's Motion Requesting Pretrial Production of Documents (Doc. 64) is granted in part and denied in part. The court grants defendant's request to subpoenas to Bethany Medical Center, Providence Medical Center, and Saint Luke's Hospital. The court denies defendant's request to issue subpoenas to Dr. Mario Gumucio, Dr. Sabato Sissillo, and Providence Medical Center (August 1999 records). The subpoenas are to be served by a Kutak Rock LLP representative on the designated hospital/medical center no later than Friday, April 21, 2000, at 5:00 p.m. Defendant shall be responsible for the costs associated with the subpoenas, and ensuring prompt payment for the copies so they can be timely delivered to the court. Copies of the subpoenaed information shall be delivered to the Chambers of the Honorable Dale E. Saffels no later than Monday, May 1, 2000, at 5:00 p.m. The parties shall set a date for the deposition of Esther S. no later than Friday, May 12, 2000 at 5:00 p.m.
EXHIBIT A
1. With respect to Esther Shaver, all medical records concerning her June 1995 emergency room visit, March 1996 coronary surgery, March 1996 bypass surgery, and April 1997 coronary procedure and 1999 cognitive assessment/amnesia, including any diagnostic tests, operative reports, pathology reports, informed consent forms, nursing notes, or other records.
2. Hospital policies and other documents relating to "medical necessity" and "informed Consent.
3. All hospital consent forms.
EXHIBIT A
1. With respect to Esther Shaver, all medical records concerning her February 1999 admission and June 1999 Pa. D. C. procedure, including any diagnostic tests, operative reports, pathology reports, informed consent forms, nursing notes, or other records.
2. Hospital policies and other documents relating to "medical necessity" and "informed Consent.
3. All hospital consent forms.
EXHIBIT A
1. With respect to Esther Shaver, all medical records concerning her July 1996 bypass surgery, including any diagnostic tests, operative reports, pathology reports, informed consent forms, nursing notes, or other records.
2. Hospital policies and other documents relating to "medical necessity" and "informed Consent.
3. All hospital consent forms.