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Law360 (March 30, 2021, 3:25 PM EDT) -- A convicted former Insys Therapeutics executive can postpone his prison sentence until he gets his second COVID-19 vaccine dose later next month, but he won't be allowed a longer delay to care for his terminally ill mother, a Massachusetts federal judge said Tuesday.
It's the eighth time the court has delayed Rich Simon's 33-month prison term, with many of the prior delays also due to the pandemic. Five other higher-ups at the bankrupt company also convicted in the opioid kickback scheme have similarly received numerous prison delays.
Simon had argued his date to self-report to prison should be pushed until early June so that he could care for his mother, who is in failing health. But once he landed a vaccine appointment, it became clear he could have complete protection from the virus long before June, leaving the question of whether to grant extra time for Simon to care for his mother.
U.S. District Judge Allison D. Burroughs said the reasoning wasn't enough to put off Simon's report date.
"Although the court has great sympathy for Mrs. Simon and her medical situation, it cannot continue to extend Mr. Simon's self-report date on this basis, particularly where her life expectancy, as reported by her physician, extends well beyond June 6, 2021," Judge Burroughs wrote.
The judge reminded the parties that she had given defendants "significant latitude to decide when to begin their sentences" in light of the pandemic.
"There will always be personal reasons that make the timing of prison challenging," Judge Burroughs said.
Simon is set to serve his time at the satellite camp at USP Atwater in California, which has been hit hard by the virus. Nine prisoners and eight staff had the virus at the time of Simon's motion, and hundreds more have recovered after previously testing positive.
Prosecutors claimed Insys used a sham speaker program to bribe doctors with honorariums and other perks so they would prescribe Subsys, Insys' powerful fentanyl spray. The executives also orchestrated a scheme to lie to insurance companies to get them to pay for the expensive drug, the government alleged.
The defendants — Insys founder John Kapoor and executives Michael Gurry, Joe Rowan, Simon, Sunrise Lee and Michael Babich — were sentenced to prison in January 2020, the terms ranging from 66 months for Kapoor to a year and a day for Lee. Kapoor and the other convicted executives are appealing the jury's verdicts to the First Circuit.
Lee last week urged Judge Burroughs to delay her sentence while her appeal plays out, arguing that a recent Fifth Circuit ruling upping the burden of proof for lesser players in a scheme boosts her chance of success. Her motion is pending.
Simon's attorney and a government representative declined to comment Tuesday.
The government is represented by Donald C. Lockhart, Mark T. Quinlivan, Fred M. Wyshak Jr., David G. Lazarus and K. Nathaniel Yeager of the U.S. Attorney's Office for the District of Massachusetts.
Simon is represented by William Fick and Daniel Marx of Fick & Marx LLP.
The case is U.S. v. Babich et al., case number 1:16-cr-10343, in the U.S. District Court for the District of Massachusetts.
--Additional reporting by Chris Villani. Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
