United States Court of Appeals For the First Circuit

No. 18-1980

UNITED STATES OF AMERICA,

Appellee,

v.

RITA LUTHRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Thompson, Barron, and Boudin, Circuit Judges.

Dana A. Curhan, with whom Thomas M. Hoopes and LibbyHoopes, P.C. were on brief, for appellant. Andrew E. Lelling, United States Attorney, with whom Mark T. Quinlivan, Assistant United States Attorney, was on brief, for appellee.

August 6, 2020 BOUDIN, Circuit Judge. This is an appeal by Rita Luthra,

a doctor based in Springfield, Massachusetts, whom a jury convicted

on two counts: aiding and abetting the wrongful disclosure of

individually identifiable health information,

; 42

U.S.C. § 1320d-6, and obstructing a criminal investigation of a

health care offense,

(a).

At trial, the government presented a detailed case;

Luthra presented no case beyond her claims that the evidence did

not permit a conviction. The district court sentenced Luthra only

to a year's probation, but the convictions may adversely affect

Luthra in her professional capacity. The serious convictions and

the light penalty reflect a tension not uncommon in regulatory

cases.

Luthra's convictions stem from an investigation not into

Luthra's activities but those of Warner Chilcott, a pharmaceutical

company. Chilcott ran a speakers program aimed at publicizing the

company's drugs to clinicians. These prescription drugs included

Actonel and Atelvia, which treat osteoporosis. In 2010, Warner

Chilcott sales representative Jose Cid signed Luthra to serve as

a speaker about Actonel and Atelvia. Between October 2010 and

November 2011, Warner Chilcott paid Luthra $23,500 for speaking at

approximately 31 events.

In addition to speaking about Atelvia, Luthra prescribed

the drug to her patients. Many insurance companies, however, did

- 2 - not cover Atelvia because a less expensive generic drug was

available. To get coverage, the prescribing physician needed to

complete a prior authorization form explaining why a patient

required Atelvia. As insurance companies denied coverage, the

prior authorization forms piled up.

Luthra asked Cid to help her medical assistant, Joanne

Rivera, complete the forms. Rivera testified that Cid assisted

Rivera on more than one occasion. Cid confirmed that Luthra saw

them working on the prior authorization forms in Luthra's office.

In one instance, Luthra stopped and spoke with Cid, who said that

he was helping Rivera while pointing to a patient's record on the

desk.

Eventually, the federal Department of Health and Human

Services ("HHS") began investigating Warner Chilcott for potential

kickback violations and health care fraud, and federal law

enforcement agents interviewed Luthra. Rivera testified that,

shortly after Luthra's interview, Luthra called her and said that

Cid got them in trouble. Luthra then asked Rivera to tell the

agents that they never showed Cid patient records. The next day

Luthra repeated her instruction and told Rivera to say that Luthra

was not in the office on Fridays.

The jury convicted Luthra on count one, aiding and

abetting the wrongful disclosure of individually identifiable

health information, and count three, obstructing a criminal

- 3 - investigation of a health care offense. It acquitted her on count

two, witness tampering in violation of

(b)(3).

This appeal addresses Luthra's claim that the evidence was

insufficient for conviction.

We review the district court's decision de novo, drawing

all reasonable inferences in favor of the jury verdict, asking

whether any rational factfinder could have found the essential

elements of the crime beyond a reasonable doubt. United States v.

Martínez-Mercado,

(1st Cir. 2019). The credibility

of witnesses in support of the verdict is largely assumed. United

States v. Moran,

(1st Cir. 2002).

As to count one, Luthra concedes that Cid accessed

patient medical information but argues that the government failed

to prove that Luthra knew Cid accessed protected patient

information. On the contrary, Rivera and Cid collectively

testified that Luthra witnessed Cid assist Rivera complete the

prior authorization forms, which included protected patient

information; stopped at their desk and spoke with Cid, who told

Luthra that he was assisting Rivera and gestured to a patient file;

and signed at least one prior authorization form on which Cid wrote

a patient's current medications.

Further, Luthra instructed Rivera to not tell federal

law enforcement agents that they showed Cid patient records and to

inform agents that Luthra was not in the office on Fridays when

- 4 - Cid assisted Rivera. Inferring from this evidence that Luthra

knew Cid accessed protected information is neither "unreasonable,

insupportable, [nor] overly speculative." United States v.

Spinney,

(1st Cir. 1995).

Luthra's critique of the count three conviction also

fails. The burden on the government was to show that Luthra

willfully prevent[ed], obstruct[ed], misl[ed], delay[ed] or attempt[ed] to prevent, obstruct, mislead, or delay the communication of information or records relating to a violation of a Federal health care offense to a criminal investigator[.]

. The government claimed that Luthra lied in her

second interview when she stated, to explain her compensation,

that Warner Chilcott paid her to author a research paper.

The government presented Warner Chilcott statements of

work that show that Luthra was paid for speaker events for the

time period during which she claimed she was paid to author a

paper. Luthra failed to produce the paper. These statements,

alongside testimony and notes from investigating agents, permitted

the jury to disbelieve Luthra's statement that she authored a

research paper for Warner Chilcott. Martínez-Mercado,

.

Lastly, Luthra argues that the government failed to

prove that her statement was "relevant to or otherwise affected

the investigation." The undeveloped and perfunctory nature of

Luthra's argument, which consists of two sentences and a citation

- 5 - to out-of-circuit precedent, offers reason enough for us to

disregard this claim. United States v. Zannino,

(1st Cir. 1990).

Modern medical practice entails endless regulation and

frightening penalties. But without minimizing the burdens on

overworked doctors who now risk much for their patients, a jury

could and did find that Luthra made statements she knew were not

true. The sentencing judge went as far as he could in softening

the sanction.

Affirmed.

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