Mistrial declared in federal trial of lawyer Noel Gage

By Jeff German

Tuesday, March 18, 2008 | 1:50 p.m.

After a week of deliberation, a jury was unable to agree on a verdict in the federal conspiracy and fraud trial of lawyer Noel Gage.

Senior U.S. District Judge Justin Quackenbush declared a mistrial after the jury sent him a note saying that after "examining and re-examining" the evidence "at this time we are not able to reach a consensus."

U.S. Attorney Gregory Brower said, "We feel very confident in the case we put on, and we intend to retry the case."

Gage declined immediate comment, but his lawyer Thomas Pitaro responded, "We'll be there, too."

In closing arguments last week week, federal prosecutors described Gage as a corrupt lawyer who deprived one of his clients, Melodie Simon, of honest services. Simon, a former Olympian, had become paralyzed during what should have been routine back surgery in 2001.

Gage, the prosecutors charged at the end of their two-week case, conspired with medical consultant Howard Awand to protect the two surgeons who operated on Simon from a malpractice case. Awand is set to stand trial later this year. Awand had a close business arrangement with the two surgeons, Mark Kabins and John Thalgott.

Gage changed his strategy in the Simon case just days after Awand brought Gage another potentially more lucrative malpractice case. Instead of suing the surgeons, who had up to $9 million in insurance coverage, Gage filed a malpractice complaint against the anesthesiologist who assisted in the surgery and ultimately obtained a $2.3 million settlement for Simon, the prosecutors charged.

Prior to closing arguments, Quackenbush dismissed 13 of the 19 charges against Gage, but allowed the most serious and sweeping charge of conspiracy, along with the five others, to go to the jury.

In his closing argument, Pitaro described Gage as a “skilled, knowledgeable and dedicated” attorney who pursued a prudent strategy to get Simon the best settlement.

Pitaro said Gage is the only lawyer he knows who was charged criminally for “only getting his client $2.3 million.”

He told the jury that the “square peg” facts of the case didn’t fit into the “round holes” of the government’s conspiracy theory.

And borrowing from a line used by the late Johnny Cochran in the O.J. Simpson murder trial, Pitaro told the jurors, “If the facts don’t fit, you must acquit.”