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Law360 (March 18, 2021, 6:01 PM EDT ) Even as he acknowledged a judge's warning that further prison delays are unlikely, a former Insys Therapeutics Inc. executive convicted in an opioid kickback scheme asked for a 60-day postponement Thursday on the grounds that he has not been vaccinated against COVID-19 and his mother is terminally ill.
Rich Simon has already had his 33-month prison term pushed back seven times amid the pandemic, as have five other former higher-ups at the bankrupt company. After the most recent delay was granted in January, U.S. District Judge Allison D. Burroughs wrote that "further continuances are highly unlikely."
But Simon argued Thursday that, at 50, he is four times more likely to be hospitalized and 30 times more likely to die should he contract COVID-19 than people in their 20s.
"In addition, Mr. Simon's terminally ill mother has further declined, and Mr. Simon's availability to provide comfort and care warrant independent consideration as a basis to continue his surrender date," the motion states.
Federal prosecutors plan to oppose the latest delay request, according to Simon's motion. The former executive said he has pre-registered for the vaccine as a caretaker for his mother, but does not know when he will get it. In addition, he noted it will take at least two weeks after he receives his vaccine before he is considered inoculated against the potentially deadly virus.
"At a minimum, both for Mr. Simon's own safety and that of other BOP prisoners, it would be prudent to ensure that he is fully vaccinated before entering BOP custody," his legal team wrote.
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 there currently have the virus, and hundreds more have recovered after previously testing positive, according to the motion.
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.
Simon's attorney and a government representative declined comment when reached Thursday.
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.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
