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Lawyers Of The Year - AL JOHNSON
Missouri Lawyers Weekly
December 25, 2000

BY STEPHANIE S. SKINNER

St. Louis attorney Al W. Johnson had big successes at both the trial and the appellate level this year.  While he is pleased with the results of his efforts, he is making an effort to keep his "business torts" practice at a size where he can continue to handle the occasional small case.

"I'm trying to be a lawyer with a firm that is willing to take on a small or unpopular case if It's just cause or someone is being bullied," he said.  "It's a concern of mine that success in the legal profession often leads to people who aren't rich and famous getting squeezed, out."

Health Care

Johnson said he thinks juries are beginning to send a strong signal that they do not view health care fraud prosecutions favorably.

"I think we're starting to see the general public recoil a little because in health care fraud cases even if the defendant committed the conduct - it is so hard to prove they had criminal intent," he said.  "Generally in criminal prosecutions, the government starts with the advantage of strong public sentiment on their side because nobody likes drug dealers or murderers, but in health care fraud cases these people are often very upstanding individuals."

Johnson successfully represented Philip Salvati, a former vice-president of Abbott Ambulance Company.  Although Salvati resigned from the company in 1995, he was charged two years later with Medicare fraud in an indictment that he and other Abbott executives manipulated billing to Medicare for ambulance service.

In 1997, the government began an investigation of Abbott Ambulance, prompted by a qui tam complaint filed in the Eastern District of Missouri by Bob Goeggel, the president of Abbott's competitor Gateway Ambulance.

After working with Goeggel, the government then began its own investigation and prosecution.  Salvati was targeted because they believed him to be a disgruntled ex-employee.

Convinced by FBI investigators that they had developed extensive evidence against Abbott, Salvati talked to them several times without consulting an attorney.  Salvati believed he would receive significant prosecutorial leniency in exchange for his cooperation.

However, after a three-year investigation, Mr. Salvati was charged with Medicare fraud in April 2000 in a 39-count indictment.  The indictment included allegations that Salvati and other Abbott officials had engaged in wrongful billing through the manipulation of billing codes in bills submitted to Medicare.

Seventeen counts were submitted to the jury regarding individual ambulance trips with charges in the range of $150 to $200 per trip totaling approximately $2,500.

In "Defending the Medicare Fraud Case," which appeared in the Oct. 30 issue of Missouri Lawyers Weekly, Johnson advised that careful attention should be paid to Rule 16 of the Federal Rules of Criminal Procedure.

"This rule allows a defendant to subpoena and obtain documents prior to trial pursuant to court order.  In our case, we carefully reviewed all the documents that were provided by the government and then organized and cross-referenced them chronologically and by exhibit number.  While compiling this information we noticed a telltale gap in the chain of documents.  The government had produced documents from Abbott Ambulance for every year from 1986 to 1994.  There, however, the document trail stopped.  We found this ironic since all 17 counts with which our client was charged allegedly in 1995!

"At that point we utilized Rule 16 to subpoena Abbott Ambulance's meeting minutes and other internal documents from 1995.  We instantly saw why the government did not want to utilize these documents.  They revealed that our client had been completely out of the management loop in 1995, the year our client was allegedly participating in a scheme to defraud Medicare," he noted.

Salvati was found not guilty on all counts.

The government settled its lawsuit against the ambulance company for $5.4 million.  Terrence W. Dougherty, the company's president, was found guilty of mine counts of mail and Medicare fraud.  He was sentenced Dec. 15 to one year and one day in prison.

Johnson said one of the most interesting things about the case was that he favored what would typically be considered a "prosecutor's jury."

"We left on politically and personally conservative people because we thought they would be offended by the bureaucratic inefficiency and arrogance, not of the prosecutors, but of the way the federal government implements and administers the Medicare program," he said.  The most unusual aspect of the case was certainly the makeup of the jury.

"It's a disaster to hear what goes on in the program and the arbitrariness that occurs such as high school graduates second-guessing doctors," Johnson said.

"Prosecutors have a responsibility to scrutinize these cases carefully and make sure the immense resources of the government are not misdirected," he said.

To that end, Johnson described a "very satisfying" case he handled this year for a county couple who were being sued by their wealthy landlord for property damages.  When he looked into it, he began to feel the landlord was "strong-arming" the couple.  The firm was able to get the other side to drop the case just by filing some aggressive discovery requests.

Slander Case

Johnson made a splash this year with a case in which a doctor sued another doctor for slander three years after the defamatory statements were made.  The plaintiff doctor had only discovered the remarks after he read a patient's deposition in an unrelated medical malpractice case.

The Missouri Court of Appeals' Eastern District disagreed with the defendant doctor that the two-year defamation statute of limitations applied to bar the claim. The court then reversed the judgment of the trial court.  The case was Kennedy, et al. v. Bailey, et al.

The Eastern District opined that because the doctor was not aware that he had suffered a legal wrong until he read the deposition, the statute was tolled.

"Tm not sure if the decision expanded Plaintiff's rights as much as it clarified them," said Johnson.  "Slander and defamation are difficult areas of the law, and very few cases survive appellate scrutiny, so we're very happy this one did."

He noted that the result was fair because it is common in defamation cases for time to elapse before the plaintiff finds out what was said about him or her.

Life After Prosecuting

Johnson spent eight years working as an assistant Prosecuting attorney under George "Buzz" Westfall.  He said it has been "interesting, fun and fulfilling to see the other side".

"As a prosecutor, you can tend to develop a cynical view of life.  My practice now allows me to be more flexible and open-minded," he said.

Johnson said that 90 percent of his caseload is civil but added that he recently took on his first defense of a murder case.  He is representing Gregory Bowman, whom he says was wrongly convicted of murdering two woman 21 years ago.  He filed an appeal seeking a new trial in St. Clair County, Ill., Circuit Court on the basis of newly discovered evidence.

The case is currently under consideration by a St. Clair County judge.  Johnson claimed that new evidence shows that Bowman was tricked by a sheriff into making incriminating statements.

"This is the kind of case that can define you in a way that you don't want to be defined, but I took it on because I believed in it," he said.

Johnson, who has one associate and one attorney working as of counsel, said one of his biggest challenges these days is expanding his staff.  He predicts he may have four or five attorneys working with him in the next year or so.

"It's a challenge and a thrill to teach younger attorneys because when you're used to working hands on, it can be hard to step back and learn how to manage others and help them develop their skills," he said.


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