Case 3:15-cr-30032-MGM Document 53 Filed 10/12/16 Page 1 of 23 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA ) ) Plaintiff, ) ) v. ) Case No. 15-cr-30032-MGM ) MARGARET LUTHRA ) a/k/a RITA LUTHRA, ) ) Defendant. ) MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO COMPEL DISCOVERY (Dkt. No. 37) ROBERTSON, U.S.M.J. I. INTRODUCTION On October 21, 2015, Defendant Margaret Luthra, M.D., was charged in a three count indictment with violating the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(1)(B) ("AKS") (Count One), wrongfully disclosing individually identifiable health information, in violation of 42 U.S.C. § 1320d-6(a) (Count Two), and obstructing a criminal investigation of a health care offense, in violation of 42 U.S.C. § 1518 (Count Three) (Dkt. No. 3). Currently pending is Defendant's motion to compel the government to provide information responsive to eighteen discovery requests (Dkt. No. 37). Defendant contends that she is entitled to this information to develop her claims of selective and vindictive prosecution and to prepare her defense to the charge that she violated the AKS. The government objects to Defendant's motion with limited exceptions (Dkt. No. 44). After consideration of the pleadings and after argument on September 7, 2016, Defendant's motion to compel discovery that is material to her defense is allowed in part and 1 Case 3:15-cr-30032-MGM Document 53 Filed 10/12/16 Page 2 of 23 denied in part, and Defendant's motion to compel discovery to support her claims of selective and vindictive prosecution is denied. II. BACKGROUND The charges against Defendant arose from her relationship with Warner Chilcott, a pharmaceutical company that sold Actonel and Atelvia, which are included in a class of drugs known as bisphosphonates that are prescribed to prevent and treat osteoporosis (Dkt. No. 3 at ¶¶ 2, 10). The following facts are drawn from the indictment (Dkt. No. 3). See United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) ("When a defendant seeks dismissal of an indictment, courts take the facts alleged in the indictment as true . .") (quoting United States v. Savarese, 686 F.3d 1, 7 (1st Cir. 2012)). Defendant was a gynecologist at the Women's Health and Education Center in Springfield, Massachusetts (id. at ¶ 1). Because Defendant "was a high volume prescriber of bisphosphonates in western Massachusetts," in October 2010, a Warner Chilcott sales representative ("Sales Rep. # 1") asked Defendant to participate in Warner Chilcott's speaker program, which was part of Warner Chilcott's aggressive campaign to promote sales of Actonel and Atelvia (id. at ¶¶ 3, 11). Defendant allegedly agreed to become a speaker at medical education ("med. ed.") events in her office (id. at ¶ 11). 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. at ¶ 12). On one occasion, Sales Rep. # 1 purportedly provided food for a barbeque that Defendant hosted at her home (id.). 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. at ¶¶ 9, 12). In return, Defendant is alleged to have "significantly 2 Case 3:15-cr-30032-MGM Document 53 Filed 10/12/16 Page 3 of 23 increased" the number of prescriptions that she wrote for Warner Chilcott's bisphosphonate drugs (id. at ¶ 13). However, the number of her prescriptions for these Warner Chilcott pharmaceuticals dropped sharply after December 2011 when Sales Rep. # 1 left Warner Chilcott and Defendant stopped receiving payments (id.). Medicare, the Federal health care program, paid for some of Warner Chilcott's drugs that Defendant prescribed (id. at ¶¶ 4, 9, 13). 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. at ¶ 6). 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. at ¶ 7). 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. at ¶ 17). When Warner Chilcott launched Atelvia in January 2011, Defendant, who allegedly was being paid to speak at Warner Chilcott's med. ed. programs, began receiving "numerous" denials from insurance companies for Atelvia prescriptions (id. at ¶¶ 12, 19). Defendant allegedly asked Sales Rep. # 1 to assist one of Defendant's medical assistants in completing PAs to obtain insurance coverage for Atelvia because their preparation was time consuming (id. at ¶¶ 18, 19). The government alleges that Defendant gave Sales Rep. # 1 access to her patients' medical records, and Sales Rep. #1 used them to prepare PAs for Atelvia that Defendant signed (id. at ¶ 19). These patient records contained "individually identifiable health information" or "protected health information" as defined by the Health Insurance Portability and Accountability Act (HIPPA) (id. at ¶¶ 5, 7).1 HIPPA restricts the disclosure of this private health 1 As a physician, Defendant is a "covered entity" under HIPPA and its privacy regulations (Dkt. No. 3 ¶¶ 5, 16). See 45 C.F.R. §§ 160.102(a), 160.103. 3 Case 3:15-cr-30032-MGM Document 53 Filed 10/12/16 Page 4 of 23 information to the patient, the physician and her staff, and the insurance company (id. at ¶¶ 5, 7). Defendant was not authorized to disclose the information to Sales Rep. # 1 (id. at ¶ 15). On February 10, 2014, Special Agents from the Office of the Inspector General of the United States Department of Health and Human Services ("HHS"), who were investigating potential federal health care fraud, questioned Defendant about her relationship with Warner Chilcott and Sales Rep. # 1 (id. at ¶¶ 21, 22). Defendant allegedly told the HHS agents that Warner Chilcott paid her to read studies and to provide her opinion, and that Sales Rep. # 1 assisted with the preparation of PAs, but did not have access to patients' private medical information (id. at ¶ 22). 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. at ¶ 23). 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. at ¶ 24). The HHS investigators interviewed Defendant again on March 7, 2014 when 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 research paper (id. at ¶ 25). The government alleges that Defendant's representations to the investigators were false (id.). III. DISCUSSION Discovery in criminal cases is left to the trial court's discretion. See United States v. Lewis, 517 F.3d 20, 23 (1st Cir. 2008). The government has produced automatic discovery in 4 Case 3:15-cr-30032-MGM Document 53 Filed 10/12/16 Page 5 of 23 accordance with Fed. R. Crim. P. 16 and LR 116.1(C) and 116.2.2 Defendant seeks eighteen categories of additional discovery to support her claims of selective and vindictive prosecution and to defend the charge that she violated the AKS. See Brady v. Maryland, 373 U.S. 83, 86 (1963) (Brady); Fed. R. Crim. P. 16(a)(1)(E). Each category will be discussed in turn. A. Selective Prosecution Defendant alleges that she has been singled out for prosecution "based on an amalgam" of race, religion, national origin, and gender -- she is "non-Caucasian," Hindu, "of Indian origin," and female -- and seeks discovery to support a future motion to dismiss the indictment for selective prosecution (Dkt. No. 38-1 at 5-6 ¶¶ 13, 14, 15). Lewis, 517 F.3d at 26. The government responds that Defendant is not entitled to discovery on this basis because she cannot satisfy her evidentiary burden to demonstrate both the discriminatory effect of the prosecution and the prosecutor's discriminatory intent, which are essential to a successful discovery request. See United States v. Armstrong, 517 U.S. 456, 465 (1996). The government's position is more persuasive: Defendant fails to make the requisite showing that entitles her to discovery to support a selective prosecution claim. 2 The government represents that it has produced the following: "all grand jury transcripts and exhibits of witnesses who testified about . [D]efendant; all interview reports and exhibits of witnesses who made statements about . [D]efendant; all agent notes of interviews of witnesses who made statements about . [D]efendant; all documents relating to the Master Speaker Services Agreement between . [D]efendant and Warner Chilcott; all Statements of Work signed by . [D]efendant and submitted to Warner Chilcott; a chart of all speaker fees that Warner Chilcott paid . [D]efendant; a chart of all of . [D]efendant's speaker events for Warner Chilcott; a chart of . [D]efendant's prescribing of Warner Chilcott's drugs between 2009 and 2013; a chart of . [D]efendant's prescribing of all bisphosphonates paid for by Medicare between 2009 and 2013; expense report data for the Warner Chilcott sales representative that called on .