A prominent Dallas spinal surgeon convicted in the Forest Park Medical Center fraud case is seeking a new trial, citing what his lawyer called a string of harmful errors by federal prosecutors and the trial judge.
In a 56-page pleading filed Monday in U.S. District Court in Dallas, Dr. Michael Rimlawi asked that a jury’s three findings of guilt against him be vacated, and that he be granted a court hearing on his motion for a new trial.
Representing Rimlawi in his effort to secure a new trial is David Gerger of Gerger Khalil & Hennessy of Houston, with Stephen F. Malouf and Jonathan Nockels of Malouf & Nockels of Dallas listed as of counsel.
Rimlawi, co-founder of the Minimally Invasive Spine Institute, was one of seven defendants convicted in April of participating in what federal investigators called a brazen scam to “manipulate and defraud our healthcare system.” In essence, the government’s allegation was that Forest Park, a now-bankrupt physician-owned hospital in North Dallas, bribed surgeons and others to send well-insured patients its way, then billed those patients’ surgeries out to insurance carriers at far higher rates than what large, established hospitals would have charged.
There were nine defendants at trial. In addition to Rimlawi, those convicted included two other back surgeons, a pain-management physician, and one of Forest Park’s top administrators.
One defendant, Dr. Nick Nicholson, a weight-loss surgeon, was acquitted. The jury was unable to reach a unanimous verdict regarding Carli Hempel, a non-medical business manager at Forest Park. To avoid a retrial, Hempel agreed to plead guilty to one count of conspiracy. Sentencing of all eight guilty defendants is pending.
Rimlawi, according to his 2016 indictment, received nearly $5 million in bribes from Forest Park in exchange for performing surgeries there. Dr. Douglas Won, Rimlawi’s partner at the Minimally Invasive Spine Institute and a co-defendant who was also convicted received almost $6 million, the indictment said.
Among other grounds, Rimlawi’s motion for a new trial claims that:
– U.S. District Judge Jack Zouhary, who presided at the Forest Park trial, erred by limiting testimony that Rimlawi had sought legal counsel on the validity and propriety of a marketing agreement he had with Forest Park – an agreement the government said was nothing more than a paper cover to hide the bribes being paid for surgeries.
– Zouhary improperly admitted an incriminating out-of-court statement by Mac Burt, the Forest Park executive who was one of Rimlawi’s co-defendants. In a pretrial proffer, Burt, then seeking a plea deal, told government investigators that he knew monthly marketing payments from Forest Park were “for doctor kickbacks.” Allowing that statement into the record, and allowing the government to refer to it, were unfairly prejudicial since Rimlawi’s lawyers had no opportunity to cross-examine Burt.
– Prosecutors from the U.S. attorney’s office “wrongly disparaged” Rimlawi and his trial lawyer, Tom Mesereau of Los Angeles, during closing arguments.
– Those same prosecutors “inflamed the jury with appeals to their personal interests” by arguing that insurance fraud raises the costs of health care, wastes tax dollars, and limits the choices available to Americans in need of medical care.
– Zouhary wrongly denied a motion for mistrial after a government witness blurted out that Mesereau had represented Michael Jackson in the pop singer’s 2005 child-molestation trial. The witness’s statement came days after the release of a damning, highly publicized Netflix documentary about Jackson’s sexual abuse of minors. Zouhary instructed the Forest Park jury to disregard the witness’s statement; however, Gerger wrote, citing 1979 Fifth Circuit decision, “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.”
– The federal anti-kickback statute under which Rimlawi was convicted is vague, ambiguous, “incredibly complicated,” “difficult to interpret,” rarely if ever applied in cases like the Forest Park prosecution, and, therefore, as applied to his case, unconstitutional.
“Sometimes,” Gerger wrote in conclusion, “the government gets too zealous – in pursuing a novel and vague theory; blocking valid defense evidence and jury instructions; pressing improper evidence; voicing disdain for the defendant and his counsel. All those happened here, and the court should grant Dr. Rimlawi a new trial.”
In hiring Gerger, Rimlawi secured the legal services of a trial and appellate lawyer with an impressive record of courtroom successes. He’s defended, among scores of high-profile clients, Andrew Fastow, Enron’s chief financial officer; Robert Kaluza, a BP supervisor on the Deepwater Horizon oil rig that exploded in 2010 off the Louisiana coast; and Khrosrow Afghani, a Houston executive who was charged with violating a U.S. ban on doing business with Iran.
Fastow, often characterized as the mastermind behind the $60 billion Enron scandal, was sentenced to six years in prison, when many legal experts thought he would spend the rest of his life behind bars. Kaluza was originally charged with 22 counts of manslaughter and one count of water pollution stemming from the disastrous BP oil spill. His lawyers convinced federal prosecutors to dismiss the manslaughter counts, and in 2016 a federal jury in New Orleans acquitted him of the pollution charge. That same year, President Barack Obama granted Afghani a pardon after Gerger argued that his client had been improperly accused.
Malouf & Nockels has a similarly noteworthy litigation portfolio, having successfully represented one of two Dallas nurses who contracted the Ebola virus while treating the first person in the United States diagnosed with the disease; and relatives of passengers killed in the 2000 crash of a Concorde flight taking off from Charles de Gaulle Airport in Paris – the only fatal accident in the Concorde’s 27-year operational history.