SANTA ANA (CNS) - An Orange County Superior Court judge's ruling will make it difficult for prosecutors to go forward with a case against multiple defendants accused in a $106 million workers' compensation insurance kickback scheme that allegedly led to an infant's death, a defense attorney said today.
On Friday, Judge Sheila Hanson ruled that prosecutors violated attorney-client privilege in the case against Kareem Ahmed, Andrew Robert Jarminski and Michael Rudolph, who are charged with involuntary manslaughter as well as multiple other felony insurance fraud-related counts.
The evidentiary hearings in the case started nearly a year ago.
Hanson “found that the (district attorney's office) had invaded the attorney-client privilege and had the materials at issue that were privileged, and that the defendants had not waived the privilege,” said defense attorney Jeffrey Isaacs.
He said the judge found prosecutors had violated the defendants' Sixth Amendment rights to counsel and Fifth Amendment rights to due process, and ordered that prosecutors “purge all privileged materials from their (computer) servers and that on the servers at the Orange County Regional Forensics Lab.”
Hanson also said that “going forward, she would exclude all evidence that was privileged or derived from privileged evidence,” Isaacs said, adding, “It would be the people's burden to show beyond a reasonable doubt that any evidence they wanted to use was not tainted, meaning it was not derived from privileged evidence.”
Hanson found that Deputy District Attorney Shaddi Kamiabipour had not intended to invade the attorney-client privilege and rejected a request to remove her or her office from the case, according to Isaacs, but did recuse District Attorney Investigator Fred Nichols.
“I think we won 75 percent of what we were seeking,” Isaacs said. “The big thing was there was a finding there was privileged information and the (prosecution) invaded the privilege.”
A hearing is scheduled Thursday to discuss how to proceed with the case, Isaacs said.
Going forward, prosecutors would have to prove evidence they plan to use in the case was not derived from the violation of the attorney-client privilege, Isaacs said. That will require what attorneys call a Kastigar hearing, he said.
“Usually when you have that kind of ruling and have to go through a Kastigar hearing, it's very, very hard if not near impossible for the people to sustain their burden,” said Isaacs, a former federal prosecutor.
Messages left with the District Attorney's public information office and Kamiabipour were not immediately returned.
The case has had a rocky legal road from the beginning.
In March 2016, the Fourth District Court of Appeal mostly junked an indictment against multiple physicians, pharmacists and other medical professionals implicated in the alleged kickback scheme. The justices did not comment on the merits of the complaint, but noted multiple technical mistakes.
Instead of going back to a grand jury for new indictments, prosecutors filed new charges. Nut the case was beset by the attorney-client privilege claims and has not yet gotten to the preliminary hearing stage.
Ahmed, who was a major booster of President Barack Obama's re- election, was the alleged mastermind of the scheme, which may have resulted in more than $200 million in losses, prosecutors have said.
Prosecutors previously alleged that Ahmed orchestrated a scheme to concoct a pain-relief cream and provide kickbacks to physicians and chiropractors to dispense it while also defrauding insurance companies with workers' comp claims.
Priscilla Lujan, a patient who was given the cream, filed a lawsuit in Los Angeles County in 2013 against one of the defendants, Dr. Andrew Jarminski. She alleged the cream came without standard warnings, which led her to expose the ointment to her 5-month-old son, who died after ingesting it while she used her fingers as a pacifier, according to Lujan's attorney, Shawn McCann.
The baby's death led to the involuntary manslaughter charge against Ahmed, Jarminski and pharmacist Rudolph.