Judge throws out some convictions in Insys opioid marketing case

Insys Therapeutics founder John Kapoor, leaving federal court in Boston in March.
Insys Therapeutics founder John Kapoor, leaving federal court in Boston in March. Pat Greenhouse/Globe Staff

A federal judge in Boston has tossed some of the convictions of four former Insys Therapeutics executives who were found guilty of conspiring to get doctors to prescribe a highly addictive opioid painkiller.

But the judge allowed convictions of all four on other criminal charges to stand — convictions that still carry a maximum prison sentence of 20 years.

In a blow to prosecutors, US District Judge Allison D. Burroughs on Tuesday overturned the convictions of Insys founder and former billionaire John N. Kapoor and three former executives for violating the federal Controlled Substances Act and for offering bribes and kickbacks that deprived people of “honest services.”


Burroughs concluded that prosecutors failed to prove at the Boston trial that Kapoor and three other defendants — Richard Simon, Sunrise Lee, and Joseph Rowan — persuaded doctors and other health care providers to prescribe the painkiller to patients who didn’t need it.

She didn’t dispute that pain specialists received fees through a speakers program if they prescribed the under-the-tongue fentanyl spray Subsys, and received higher fees if they prescribed higher doses. The defendants’ behavior “was reprehensible and designed to financially incentivize health care practitioners to prescribe Subsys without regard for the best interests of their patients,” she wrote in an 85-page ruling.

But convicting someone of conspiring to illegally distribute a controlled substance “requires more than an ‘intentional failure to adhere to the standard of care,’ ” she wrote, quoting case law. “The threshold for criminal liability is when a physician ‘ceases to be a physician at all’ ’’ and acts more like a drug dealer, she said.

Testimony at the 10-week trial indicated that some patients had a legitimate need for Subsys, which was approved in 2012 to treat cancer pain that could not be relieved by other medicines.

Burroughs didn’t disturb the convictions of the four former executives on mail fraud and wire fraud. Each of those convictions carries a prison sentence of up to 20 years.


A fifth defendant, Michael J. Gurry, wasn’t convicted of violating the Controlled Substances Act and honest services fraud law but was found guilty of mail fraud and wire fraud.

All five were convicted of racketeering conspiracy; those convictions will also stand.

Burroughs wrote that instead of seeking convictions under the laws dealing with controlled substances and honest services fraud, the government “could have easily proved bribery, but it elected not to charge bribes or kickbacks and now must live with that decision.”

A spokeswoman for US Attorney Andrew E. Lelling said prosecutors had no comment.

The five defendants are scheduled to be sentenced in Boston in January.

Peter Horstmann, who defended Lee at trial, declined to comment.

The criminal trial was believed to be the first of pharmaceutical executives who marketed an opioid painkiller since the nation’s deadly epidemic began.

The jury deliberated four weeks before reaching its verdict in May. Two jurors said afterward that they were horrified when they saw that Insys had produced a slick, thumping music video that was played in court.

Inspired by a song by A$AP Rocky, it featured two Insys salesmen rapping about increasing the dose of Subsys. It was intended to motivate the Chandler, Ariz., company’s staff to get doctors to prescribe higher amounts of the drug.

Insys filed for bankruptcy protection in June, five days after striking a $225 million settlement with the Justice Department to settle criminal and civil cases against the company.


Jonathan Saltzman can be reached at jsaltzman@globe.com.