State Rep. Ed Henry’s lawyer is “awash in a sea of paper” after prosecutors in the Hartselle representative’s Medicare fraud case produced more than 80,000 documents, and he’s asking the federal judge to intervene.
“If I spent one minute looking at each one, it would take me 1,333 hours,” said Birmingham lawyer Max Pulliam.
The prosecution is required under local rules of the U.S. District Court for the Middle District of Alabama to produce all documents relevant to either the defense or prosecution, but Pulliam wonders if they’ve approached that obligation with a bit too much enthusiasm. He this week asked the court to require prosecutors to identify which of those 80,000 documents they intend to provide to the jury at the Feb. 4 trial.
“The government should not be permitted to bury Ed Henry in a sea of documents which are largely irrelevant so that it can surprise him at trial with the relevant documents on which its alleged charges are based,” Pulliam said in the motion filed with the court.
The U.S. attorney has not filed a response to the motion and did not respond to a request for comment.
Pulliam said the government produced the documents in five waves, the most recent including 45,000 pages.
The volume of discovery already prompted the court to push back the trial from Oct. 1 to allow defense attorneys more time to review the documents.
“On balance, the public’s interest in an expeditious trial of defendants is not so great as to outweigh the risk of a miscarriage of justice if defendants’ trial goes forward,” ruled U.S. District Judge Keith Watkins.
Henry is one of three defendants in the case. The other two — Dr. Punuru Reddy of Decatur and Dr. Nicole Scruggs of Huntsville — allegedly conspired with Henry in a kickback and bribery scheme.
Pulliam said he received the documents from the government in a digital format, but he’s already printed half of them to facilitate his review.
“There is a room now that I’ve dedicated to Ed’s case where I’ve got the 40,000 pages I’ve printed so far in ring binders,” Pulliam said. “My legal assistant has made an index. A lot of the documents appear to be billing records for patients of both of the doctors that are now charged in the case, Dr. Reddy and Dr. Scruggs.”
The federal grand jury's indictments involve Henry's business, MyPractice24 Inc., which provided chronic care management for the patients of doctors who contracted with the company. They allege Henry provided valuable benefits to the doctors in return for referrals, and that the doctors routinely waived co-payments for the services provided by Henry’s company in an effort to get their patients to use the service.
In a motion to dismiss filed last week, Henry argues he can’t be held responsible for the doctors’ decisions to waive their patients’ co-pays. The indictment, Henry’s lawyer argued, “does not allege Ed Henry in any way had control over how Dr. Reddy billed the Reddy Practice patients for out-of-pocket costs for chronic care management services.”
Pulliam also filed a motion asking that he be allowed to question jurors before they are selected for the Feb. 4 trial. He said the case has received extensive publicity, in part because the U.S. attorney in announcing the indictment “connected Ed Henry’s case to the ‘pill mill’ cases in which Dr. Gilberto Sanchez and others have pleaded guilty. … Dr. Sanchez and others who have pleaded guilty are expected to testify in the government’s case against Ed Henry.”
A federal grand jury indicted Sanchez of Montgomery for illegally dispensing prescription opioids. In court documents filed during the proceedings, the prosecution noted that “Sanchez’s cooperation with the government is ongoing.” Sanchez pleaded guilty Nov. 28 and forfeited his medical license Dec. 31.
Henry was initially indicted May 31 for an alleged Medicare kickback and bribery scheme with Sanchez. A superseding indictment July 24 added Reddy and Scruggs as defendants, with allegations that they participated with Henry in a similar scheme.
Pulliam has previously said the indictments against Henry, Reddy and Scruggs have been designed to pressure them to testify against others.
“I’m not supposed to talk about any sort of settlement negotiations,” he said this week, “but I can say generally … the objective is to not only get a conviction, but to get the citizen’s help in bringing a case against another citizen. There is an incentive to citizens … that if you cooperate with the government, they will file a motion with the sentencing court that your sentence be reduced.”