Misuse of prescription opioids, which are used to treat both acute and chronic pain, has become a serious public health problem for the U.S. population, including Medicare beneficiaries. The Centers for Disease Control and Prevention (CDC) reported that from 1999 to 2013 the rate of drug poisoning deaths from prescription opioids nearly quadrupled from 1.4 to 5.1 per 100,000 people. In addition, the Department of Health and Human Services (HHS) Office of Inspector General (HHS-OIG) reported that 14.4 million people (about one-third) who participate in Medicare Part D received at least one prescription for opioids in 2016, and that Part D spending for opioids in 2016 was almost $4.1 billion.
—GOVERNMENT ACCOUNTABILITY OFFICE, OCTOBER 6, 20171
She was the only witness with a fashion blog. Jean Stone, recipient of one of the federal government’s highest civil service awards, wore her hair in a crisp white bob. An array of graphic bangles and rings decorated her arms and fingers, echoing the graphic black-and-white designs of her outfits. She wasn’t there to advise on style, however: she was there to teach the jury about the rules that Dr. Li had broken. She provided her full formal title: Director of the Northeastern Program Integrity Field Office in the Medicare Program Integrity Enforcement Group. She worked within the U.S. Department of Health and Human Services, in the Centers for Medicare & Medicaid Services’ Center for Program Integrity. After hearing her qualifications, the judge recognized that she would be testifying with expert knowledge about an issue that was beyond the understanding of a “typical juror,”I and allowed Stone to offer her opinion as an expert in Medicare program structures, Medicare enrollment policies, and Medicare claims processing.
Ms. Stone taught the jury that Medicare paid physicians according to the time and labor they invested in a patient’s care. Physicians communicated this information to Medicare through numeric codes, which described the nature of the care performed. A long, new-patient visit, for instance, involving extensive medical history and a physical examination, would pay more than a short repeat visit from a familiar patient that involved only limited medical work. Stone explained the codes to the jury and told them about the different “levels” of patient visits and how much time the doctor would be expected to spend with the patient at each level. It may not have been a view of medicine with which every doctor agreed, but it was one they had to accept if they wanted to participate in the Medicare program.
“Ms. Stone,” I asked, “are you familiar with the term ‘upcoding’?”
“Yes.”
“What does that mean?”
“That’s a term we use when a provider bills a higher level of service than was rendered to the patient.”
I needed the jury to know the term “upcoding” because they would hear it from the Medicare auditor, who, even without knowing how many patients Dr. Li had seen in one day, could tell from his patient records that he had not spent anywhere close to the amount of time he’d claimed to have engaged in the medical treatment of his patients. I needed them to remember Jean Stone’s explanation when they saw Dr. Li’s claim forms, all featuring the codes that stood for the longest, most complex visits.
Jean Stone also explained the “global surgery rule.” This was a fancy way to say that a doctor could only charge Medicare once for a procedure. Everything was included in the procedure fee: the underlying visit as well as the operation itself. You couldn’t charge Medicare for a visit and procedure on the same day unless an exception to the “global surgery rule” applied. If a doctor performed a visit on one day and a procedure on the next day, however, they could avoid the global surgery rule—and get paid for each service separately, which meant more.
The jury needed to hold this information in their minds long enough to hear from the Medicare auditor. She would tell them that Dr. Li billed Medicare for visits and injection procedures on two consecutive days, even though his own records indicated that he never saw patients two days in a row. The jury just needed to hold the testimony in their minds long enough to see the claim forms themselves, see the patient records themselves, and remember that this lie, repeated in claim form after claim form, meant more money for Dr. Li. They needed to connect this information back to the receptionists, who had testified earlier during the trial that they were instructed by Dr. Li’s wife to write false, consecutive dates on the claim forms.
I was so focused on the witness and keeping the jury awake that I had little clue that the judge, of all people, was absorbing this testimony with great interest.
A doctor enrolled in the Medicare program, Jean Stone explained, could not refuse to bill Medicare for patient visits—not if Medicare had been slow to pay claims, or if the Medicare beneficiary agreed, not even if Medicare was paying too little by the doctor’s standards. The doctor could not charge a cash fee other than co-insurance or deductible.
“Now,” I asked, presenting a hypothetical situation, “may a doctor make an agreement with a Medicare beneficiary that the beneficiary will pay cash up front, the doctor will bill Medicare, and when Medicare pays, the doctor will pay the patient back?”
Stone was firm.
“No,” she said, then added, “We would consider that a kickback.”
I hoped the jury would remember her answer.
Of course, Medicare wasn’t just paying for doctors’ visits. They—or rather, we the taxpayers—were also paying for many of the medications that Dr. Li prescribed. While many of Dr. Li’s Medicare and health insurance patients paid cash at the pharmacy to elude scrutiny or avoid limits on monthly doses when they were getting extra, they always used up their monthly medication allowances, at great taxpayer expense. Dr. Li may have felt underpaid, but he was racking up significant societal costs without meeting even a minimum standard for care—and that wasn’t even taking into account the cost of medical intervention when patients overdosed.
I tried to ask Stone whether Medicare set higher standards for medical visits when doctors were prescribing opioids. “It seems to be a silly question,” the judge rebuked me. He turned to the witness. “There are no differences based upon what the prescriptions are for, are they [sic]?”
“Generally, no,” answered Stone, “but for controlled substances there is a stronger expectation that the patient is under the care of a physician and would be documented in a medical record.”
I recalled my prep sessions with Stone, in a conference room on a high floor of the federal building near Foley Square. She had betrayed a workaholic’s knowledge of the rooftops around the building, pointing out the loveliest gardens. If she, like the judge, had deemed some of my questions to be “silly,” she never let on. Instead, she took the time to teach me about her work. We’d combed through document after document, policy after policy, in satisfying and productive conversations where not a word went to waste and she held specific, enlightening answers to every single question I could conjure—a direct correlation between effort and understanding.
On cross-examination, Belair attacked Stone—and the Medicare program—for not having given Dr. Li a second chance with his claims. They should have sent him a warning, Belair suggested, instead of ratcheting up the case to criminal charges.
With Ms. Stone, however, Belair pushed on to a criticism of Medicare’s cheapness with physicians and an overt attack on the prosecution, challenging Stone to admit that, but for the pressure from our office, Dr. Li’s fraud would have remained undetected or unaddressed.
There wasn’t much more he could do with her—though he did try.
“Yes, sir,” Stone answered at one point during her cross-examination.
“Okay,” Belair responded, exasperated, “please drop the ‘sir.’ ”
Peter objected.
The judge turned to Belair. “If Ms. Stone wants to call you ‘sir,’ Mr. Belair, I won’t stop her.”
“All right,” Belair gave up. “Okay.”
I sat through the cross-examination of my Medicare expert, fuming over Belair’s tactics: they were both effective and maddening. He drew the jury’s attention away from the falsified claim forms, confirming instead that the Medicare payments were small and that a similar case, under different circumstances, might have resulted simply in a warning letter. He also asked questions based upon premises that the witness could not accept, but then restricted the witness to “yes” or “no” responses; when she tried to question the premise, she seemed combative. I reminded myself that if Belair was not quibbling over the existence of the fraud but rather trying to enlist the jury’s sympathy for the doctor or frustrate the witness, it meant that our proof was compelling.
Cross-examination is about control as much as it is about substance. I knew Stone would be fine and I knew that Belair’s role required him to deny Stone her due, but it was confounding to hear them tussle. What she was saying seemed so clear to me. I remained bewildered, and angry, that our system of justice created situations where a lawyer could blur meaning and dangle red herrings and just be doing his job. Nevertheless, I barely allowed myself to move, other than to take notes, and worked hard to maintain a neutral stance and expression. Belair was demonstrating his skill—and I needed to control my own reactions.
The title was printed on the cover, in large penciled letters: “Nina’s Book of Drawing + Witing [sic].” How cute! Inside, I found colorful sketches of kids doing gymnastics under the benevolent supervision of a long-legged teacher, followed by a list of eight children, including her little brother (aww!), whom Nina wished to invite to her birthday party.
Nina pointed me to another page—to the drawing meant for me. It was a cartoon. In the first frame, a brown-haired woman with a drawn-out, downturned mouth pointed an oversized arm toward a girl in a school uniform. Blue polka-dot tears fell from the girl’s eyes down to the floor. In the next frame, the girl lay on her bed, crying the same blue tears. Her sheets featured a red design—just like Nina’s. In case the drawing wasn’t clear enough, there was a purple crying sad face in the upper left corner. “You do this to me,” read the caption.
In the final frame, a little boy (labeled “Charles”) and a woman (labeled “you”) sat cross-legged together on the floor, smiling and playing under the caption: “You do this to Charlie.” In the upper left corner: a purple smiley face and a crossed-out girl.
It took a lot of effort not to cry. I wasn’t with them all the time, so it was always so hard to draw the line between just enjoying their presence and doing my job as a parent. And what was my job as a parent? How are you supposed to discipline or help or teach your child if you can’t follow through?
Parenting was my hardest and most important job. I worked at it—but I just couldn’t seem to get it right, no matter how many books I read or counselors I consulted.
I received little comfort from my co-parent, who never seemed to experience the challenges of bedtime or sibling rivalry and lived, more than ever before, at a different rhythm. We didn’t just have different visions of what a family should be, we now had different experiences of family—but with the same children. Far from supporting each other, we were always in conflict or competition.
My email in-box turned into a minefield. I held my breath as I scanned the messages: Would there be another grenade hidden in there? If there was, I read it and fumed, then fired off my own responses, scathing or disappointed or self-righteous or trying in vain to set boundaries. Even after more than a year of separation and a signed, mediated agreement, there was no respite and no predictability. Despite my best efforts to set up a stable structure, I felt unable to protect my children from a jagged and confusing new life between two very different homes. And I certainly never had thought to put on the armor before looking at my own child’s drawings.
It was so hard to know what to attribute to normal friction between parents and children, to the divorce, to “normal” sibling dynamics, or to my own shortcomings. Yes, I was frazzled, angry, sad at times—not usually at the kids, but of course it sometimes came out with or at them. Was this just a normal parenting pitfall? How the heck was I supposed to know? What was the standard for “normal parenting”? Was the standard set by “intact” families, however dysfunctional? My own parents? Other divorced parents? Some idealized movie mom, always able to acknowledge, validate, support, and comfort?
“You’re so lucky,” some friends would say, envious of my “free” evenings and weekends when the children were with their father, or of my ability to make decisions for myself, without compromise. If only it were so simple. In reality, just at the moment when the kids and I settled into a routine together and I’d finally had an opportunity to set parental expectations about bedtime, homework, respect for each other, and the daily brushing of teeth, they would be whisked away to their other home, with its own set of rules, where everything seemed to be easier, better, freer, and fairer. Of course, I did not know those rules and I had no say in them. Each time the children came back, it felt like we started again from scratch. Was anything sinking in?
I may have succeeded only in making them feel inadequate. While I played the role of perpetual “bad cop,” we still seemed to be landing on the lowest common denominator. Could it be enough that they were safe and alive? Was it even in my power, under the circumstances, to make them feel safe, let alone happy?
I also sometimes wasn’t sure of the right course and felt the need for a trusted partner with whom to discuss and decide. Someone to whom I could say, “I’m not sure what to do about this, what do you think?” and then talk it out. Some people looked to prayer for such guidance, others to their own internal compass. I had neither, apparently. I was fortunate enough to be able to pay a therapist to hear me out and give me advice, but then I’d still find myself on Wednesday mornings hugging the kids good-bye, taking in a big breath of them to hold out until the next time we’d see each other before letting them go. They were just going to their dad’s, but for me they were disappearing into an unknown. Of course, I also knew that I was lucky to expect them home again: I felt guilty about the divorce, guilty about the transitions, and guilty for not appreciating the simple, precious fact of their aliveness and safety. I could’t help but miss them desperately.
Only work could interrupt the downward spiral. If I worked long enough to feel okay again, on topics complex and precise enough to occupy my brain circuits, I could take myself home and coast into a night of sleep, however uneasy. I preferred to toss and turn over professional challenges rather than revisit the usual nightmares about losing my children, or the children whom others had lost.
Eddie Valora always had suspected that the doctor was getting paid, but now he had proof. It was right there, in black and white, in the Explanation of Benefits letters and the Medicare Summary. It was a fact that Medicare was paying the doctor. Always had paid the doctor. When the doctor had told Valora that he hadn’t received any payment, that had been a lie. When the doctor had forced Valora to pay cash for the visits and promised to pay Valora back when Medicare paid, that had been a scam. You know what else had been a scam? This whole thing. All of it. He should have known on the first day, when he brought the doctor that pile of medical records, everything to explain his illness, and the doctor didn’t seem to care. And then the doctor didn’t even remember him the next time. What a waste of time and money, and now he wasn’t even better. He couldn’t do without the meds anymore—and he was still in pain. Actually, he’d added another layer of pain because in addition to the tightening and trembling and endless aching of his muscles, there was the craving and the shaking and the soreness of the withdrawals. He rode the waves of craving and pain until he couldn’t anymore, but when he took the meds—especially the Xanax—he just dropped out, knocked out, blacked out, for hours and hours, just lost.
How many times had he told the doctor, for nothing. For nothing.
“You look anxious,” the doctor had said.
“Just keep taking it,” the doctor had said. “You’ll get used to it.”
Was he used to it now because he needed it all the time? But if he were used to it, would it still knock him out the way it did? Now he had to stop—he had to—because this guy was ripping him off and Valora was pissed.
He had to be careful. He couldn’t let anger get the better of him. He had the law on his side, though; he was pretty sure about that. And he had the proof: the official statements from Medicare. The doctor would have nothing to say to that. Just one last time, to get his money and make his point—and get one last set of prescriptions to tide him over until he could find someone else, a real doctor this time, someone who’d understand his medical records and learn about his illness and treat him.
He didn’t even bother to go early. There were already forty or fifty people there already, between the people waiting outside the drab brick building in Flushing, the people in the basement hallway, and those already in the office. Valora blew right past them, past the reception desk, cutting the line without hesitation. He used to have confidence in his body. He walked like he used to walk, strong and fast, right up to the room the doctor always used. He banged on the door. That got everyone’s attention.
“You have to wait!” The receptionists and other patients tried to stop him. They didn’t know him, clearly.
“I’m not waiting,” he said, and banged some more. “I want to talk to the doctor right now!”
The door opened and as the patient came out, Valora pushed right past him. The doctor was sitting at his desk. “We have to have a talk right now, Doc,” Valora insisted. “I want my money back.” He didn’t want to be aggressive. He wanted to be treated right. He wanted things to be set straight. He suspected there was a storm brewing outside the door, in the office, because he’d cut so many people, so this had to be quick.
The doctor shook his head. “No, you’re not getting your money back.”
Maybe the doctor hadn’t understood, Valora thought. He told the doctor about the Medicare summaries. He reminded the doctor about that promise, that if Valora paid cash up front for the visit, the doctor would pay him back when Medicare paid. He wanted his money back—and he wanted another prescription. Maybe he should ask for that now. He didn’t have much time. He didn’t like the fact that he was asking for a prescription at the same time that he was asking for his money back, but he needed that medication; he couldn’t go without it anymore. It’s the last time, he promised himself, and the doctor. “The last time. Never again. I need my prescription.”
The doctor started writing. “That’s one hundred fifty dollars,” the doctor said.
Valora’s voice strained with anger. “I don’t have money. You owe me money. Give me my prescriptions. I’m going to go and I’m not going to see you no more. That’s it.”
Was he yelling? He was yelling. The door opened, bringing in trouble: two big guys who looked like bouncers from a bar. Where’d they come from? Did they work here? They lunged at Valora, who tussled his way out of their grasp and ran out. This is it, he thought. He’d fought people before, but he was alone and he wasn’t that strong anymore—actually, it had been a long time since he’d felt strong. They were catching up to him—he stumbled and there they were, in his face, yelling, “Shut up! Shut up!”
Valora hollered, but they were bigger and louder, one screaming, “Shut up! Get out of here!” and the other yelling at him, “Sit down! What are you doing?”
“I don’t care about any of you!” Valora yelled back. “I want my money! I’m going to call the cops on him for this!”
Wrong thing to say? The two guys went nuts. “We’re gonna fucking kill you,” they growled, and Valora believed them and ran away, ran down the hallway and up the stairs and panicked: where to go, where to turn, because he didn’t want to die right then, not now, not by these guys—
And then he saw someone he knew. A tall, dark-haired, tattooed man, the longtime neighborhood “businessman,” who always seemed to be hanging out in front of the doctor’s office these days, buying prescriptions and pills from the patients. The very person who had referred Valora to this doctor, as if that shouldn’t have tipped Valora off that maybe it wasn’t a good idea.
The two guys—well, they stopped. Maybe it was Valora’s friend’s face or his size or his reputation or just something about him that made it clear that he was capable of inflicting more pain than them—things got so quiet that Valora wondered if maybe there was still a chance.
“Hey,” he asked his friend.
“What?”
“You got a hundred fifty dollars I can borrow?”
They’d known each other for a long time. Valora wouldn’t have a choice but to be good for it. His friend unfolded a fat roll of money and peeled off a few bills. Valora walked right back down those stairs and right back in that office and right by those meatheads, the bouncer-looking guys, right up to the doctor’s door, and knocked. It wasn’t pleasant, you can say that, but he did what he had to do.
“I got the hundred fifty dollars right here,” he said through the door. “I need my pills and I’ll never see you again,” he added, looking around, careful, watchful.
The doctor opened the door. Valora showed him the cash. The doctor walked past Valora and gave one of the girls in the front a prescription form, with Valora’s medication already written out. Valora handed over the money. He’d stop soon, but not now.
Dr. Li took the money and put it right into the pocket of his white coat.
Special Agent Cindy Hearn, of the United States Internal Revenue Service, was poised to tell the jury how much money Dr. Li had earned from his cash-only, weekend-only pain management practice. She’d just told them that he had several bank accounts: two accounts at the Bank of America, including one personal account for his private practice in anesthesiology (which received automatic payroll deposits amounting to more than $10,000 every other week, indicating a net salary of approximately $240,000 a year), and one for insurance payments related to the pain management practice (totaling more than $140,000 between May 2009 and December 2011); he had another account at PNC Bank, also in New Jersey, where he’d purchased certificates of deposit worth thirty-five thousand dollars with a check from his personal account at the Bank of America; he and his wife shared an account at a small community bank, Roma, in New Jersey, which received cash deposits; and another account at the Bank of Princeton, which also received cash deposits. The cash deposits were always made on Mondays or occasionally Tuesdays, and almost always signed by Dr. Li’s wife, Anna Guo.
I was ready to ask Special Agent Hearn for the grand total of cash deposits. I put the question to the witness: “What was the total value of the cash deposits in just Roma Bank and the Bank of Princeton between 2008 and 2011?”
It was a moment of high drama, just like in the movies. Cinematic courtroom dramas, however, often fail to capture the complete lack of suspense at trial: that’s the cost of fairness and procedural integrity.
The judge stopped Agent Hearn as she was reaching for her folder. “Do you need to look at a document to refresh your recollection?”
“Yes.”
“Agent Hearn,” I said, trying to be helpful and professional and move things along, “next time just ask the Court’s permission or let me know.”
“We are there already,” the judge said to me with a snap. My inner critic piled on—there you go again, being redundant and looking like a fool. The judge then turned to the witness. “If you need to look at a document, you need to let us know that that’s what you are doing.”
“Yes, Judge,” responded Agent Hearn. “I’d like to look at a document.”
“You can look at it if you need to refresh your recollection,” the judge reminded her. “You can’t read from it because it’s not in evidence.”
“Correct,” acknowledged Agent Hearn, before perusing the document, raising her head, and speaking into the microphone.
The total value of cash deposits in just the Roma Bank account, between 2008 and 2011, was $462,860. The Bank of Princeton account, during the same time period, accumulated more than $80,000 in cash deposits. Together, Agent Hearn told the jury, the cash deposits in those two accounts amounted to approximately $542,000. Additionally, the cash deposits in the PNC account, made over a period of just eight months, amounted to $42,000.
Later in the trial, the jury heard examples of a few weeks’ worth of cash deposits into the Roma account.
“February 2, 2010: seven thousand dollars.
“February 8, 2010: seven thousand dollars.
“April 26, 2010: eight thousand, five hundred dollars.
“June 28, 2010: eight thousand dollars.
“July 7, 2010: seven thousand, five hundred dollars.”
I hoped the jury, considering all this evidence at the end of the trial, would make the connection to a set of statistical charts prepared by our analyst, Stefani Miotto. I hoped the jury would see, as we had, the direct correlation between the number of patients and the amounts of money collected.
Of course, since most of Dr. Li’s proceeds from the weekend clinic had been in cash, we had no way of knowing if the amounts in these various accounts and financial instruments represented his total gains.
In the middle of my direct examination, during key trial testimony, a class of middle schoolers entered the courtroom. The children’s faces revealed excitement and reverence: A homicide trial?! A judge in a long black robe!? A jury?! A big cart full of crime evidence?! A prosecutor questioning a witness!? This was going to be awesome!
“Sir,” the judge said to their chaperone, “why don’t you put them on that side of the courtroom. Folks, please. Yeah. Thank you. We’re being visited by a class.”
I continued asking my questions, one after another for a full fifteen minutes. Once I’d executed the necessary tasks, I ended with a dramatic salvo:
“Do you recognize the type of information that’s contained in these spreadsheets?”
“Yes, I do.”
“What do you recognize it to be?”
“These data elements are unique items that are reported on the Medicare claim and these would be the record in our system as a Medicare claim is processed for all of the different information that we use to process the Medicare claim.”
“And did National Government Services inherit all of the data that was maintained by GHI for Queens County?”
“Yes, we did.”
“At this time, Your Honor, we offer One Fifty-Three A and B subject to connection.”
The students filed out, dejected.
“I’ve had lots of school classes come visit,” the judge quipped, “and none of the times have been particularly interesting. Sorry, Ms. Fishman.”
Cue: giggles, laughter, smiles.
There were many times when I wondered whether the strategy to focus on the money and the insurance fraud was more of a gamble than I had anticipated. This was one of them. This witness had been necessary to set our jurisdiction over the Medicare fraud crime, establish the chain of command for the subcontractors who performed the Medicare audit, and lay a foundation for the introduction of a crucial piece of evidence: the spreadsheets containing claim records. Her testimony was long, dense, and dry, but it was also indispensable.
I had come into this case as a Medicare novice, numbed by the technical jargon and with a vague but overwhelming sense of the program’s complexity, importance, controversy, and bureaucracy. Having moved to the U.S. in the mid-eighties and having reached voting age in the early nineties, I’d watched many rounds of presidential debates, and I cringed at even the word “Medicare.” But I knew fraud—and suspected that this side of Dr. Li’s business would reveal his true intentions.
Under the thoughtful and clear guidance of my Medicare experts—a whip-smart data investigator, a former secret service agent, and the formidable Jean Stone—I came to understand and love the program. I didn’t need the jury to share my love of the subject, but I needed them to understand the basics: taxpayers funded Medicare; Medicare served the elderly and disabled; Dr. Li participated in Medicare; Dr. Li cheated Medicare; Dr. Li cheated Medicare no matter the race or age of the patient, almost from day one of his private pain management practice.
If the jury understood that, I argued in our strategy sessions, they will see his true motive: they will see his greed. But would they be able to keep their eyes and ears open long enough? We’ll pare it down to a minimum, I promised. We’ll make it interesting!
“Why are we taking all this time to go through this?” the judge interrupted as I was asking a witness about the process by which Dr. Li could have opted out of the Medicare system.
“Your Honor—” I started to answer.
“You’re losing the jury,” the judge warned. “They’re falling asleep.”
There was no easy pep talk for this dilemma. “You can’t care what they think” didn’t apply here. Neither did “do one thing a day that scares you.” This trial wasn’t “scary”: it triggered the brainless, chilling anxiety of stepping out into a void. The judge had authority to make rulings on what we could and could not present to the jury. We were also sure that the defense would move for a “trial order of dismissal” at the close of the People’s case, which meant that Belair would ask the judge to dismiss some or all of the charges for lack of legally sufficient evidence. If the judge granted that motion in part or in whole, we were done: the jury never would get to deliberate on those charges. Entering seventy-two witnesses and hundreds of exhibits into the courtroom and onto the record was the first hurdle; surviving eighteen weeks without a mistrial or trial order of dismissal was another. Retaining the jury’s attention may have seemed like the least of our worries, but it was also paramount. We couldn’t afford to have them fall asleep or feel like we were wasting their time. We couldn’t hold back or go too far—and there was no way to know, at any given time, how close we were to the edge.
He’d had months to think about it, I fumed. So many meetings and discussions. So why did everything have to happen at the last minute and feel like such a jumble? Peter and I had to make decisions about which victims’ cases to pursue and time was running out, yet the digressions, jokes, and delays never ended.
And then suddenly—boom—the hammer came down. He was the senior trial attorney, so he had the final say and held on to it so long that by the time he decided, it was too late to re-argue.
You’d think I would have learned to be strategic—I hadn’t. I picked every battle and failed to conceal my outrage.
Our different styles bred tension: I didn’t let him take original documents back into his messy office for fear that they would be lost; he rolled his eyes at my protectiveness; I thought about this case night and day; he refused to reveal what else was occupying his time, out of deference to the luminaries who relied on him.
How did he do it? He could make intellectual leaps, in our debates or when questioning a witness, between high-priority topics without fretting about laying exhaustive foundations for each subject, closing out a topic, or losing his audience. If you tested his underlying knowledge of the law, it was flawless and profound. Was this the payoff of experience, memory, diligent study, instinct honed into habit? Was it confidence? There was no question that Peter knew more about the law than anyone else in the room and had a way with words: Was that why everyone had such patience for the extra stuff? Did Peter have more freedom to be himself and let loose his messy genius in this case because he was paired with me, his polar opposite in terms of neatness and predictability? Would a woman ever be able to get away with the “messy genius” approach?
My anticipatory anxiety, my need for preparation, organization, clarity, and my relentlessness made much of my work possible—it also made much of my life impossible. I thought of the filing cabinets in my office, filled with labeled manila folders, broken down by witness, patient, date, or topic. Those were helpful and necessary—at work. I thought about my task-tracker spreadsheets, compiling assignments for the entire team—also helpful, also necessary, given the scope of the case and the monumental trial prep still ahead. But what did spreadsheets and folders contribute to my parenting? Nothing. To my divorce negotiations? Nothing. I didn’t need to be a messy genius, but I would have liked to feel like I could be myself, trust myself, learn how to be better, build a strong team, take care of the things and people I cared about and execute a plan. The lack of self-confidence, the impostor syndrome, my reflexive protectiveness for the kids and my case—they limited me. They blurred reality. They made progress impossible.
Whether or not the prescription data, the bank records, or the Medicare case seemed boring to others, they were a joy for me. There were rules. There were promises. There was data. There were experts. There were answers. There were direct correlations between effort and understanding.
Jean Stone’s testimony spilled over onto a second day. When she finished on May 5, Valora was in the hallway, waiting his turn with apprehension. Did he see Stone pass by, the stylish woman with a commanding posture and a confident walk? Either way, he had no idea who she was or why she was there. Nor did she know him or his purpose. Nevertheless, together they constituted a dynamic duo of civic superheroes: the expert and the young man, both coming forward to say that they wouldn’t stand for Dr. Li’s fraud.
After Mr. Valora told his story, Belair hit hard. His aim was to reveal Valora’s flaws and then let the jury sit with the implications. This is the person the prosecutor’s siding with, he was telling the jury. This is the person they want you to believe over a hardworking, well-qualified, licensed physician. It was an explicit attack on the witness and an implicit attack on the integrity of the prosecution.
Belair struck a rich vein probing for the details of Valora’s criminal record. So rich, in fact, that he was unprepared for the witness’s candor on that subject. Just tell the truth, we’d told Valora. Be as helpful to Belair as you are to us, we had instructed him.
“Okay,” Valora started, without hesitation. “I was involved in an altercation where I just came out of the hospital with bacterial meningitis….” He told a long story of an altercation involving thirty-five fighters “on the other side,” “people with bats, knives,” himself weakened after an extended stay in an isolation chamber and significant weight loss, and a violent Marine who was “killing” someone with a chokehold. When Valora reached the part where he admitted to striking the Marine in the eye socket twice with a bat, inflicting critical injuries, Belair stopped him. “I think that’s sufficient,” he said, in a tone both smug and surprised. “Thank you.”
“And then it got broken up,” Valora volunteered, undeterred.
“That’s okay,” Belair checked him. “Thank you.”
The jury seemed shell-shocked. We weren’t handing them a neat package. Every witness came with baggage. We were asking them to see past Valora’s history. We couldn’t control the outcome and they couldn’t control the input.
I, for one, could relate to Valora, our intensely self-critical tipster, who could not seem to find a peaceful path through life. He seemed to be short-circuiting from one thought to the next, getting ahead of himself and yet never catching up, always doubting and second-guessing… it was all so familiar. It was something I knew.
She had pie charts. She had graphs. She had numbers. She had percentages and she had maps. Everything was ready, in a neat folder on the evidence cart. Most important, Stefani Miotto, our investigative analyst, was ready, despite her initial trepidation about any form of public speaking. In fact, she’d been ready for many months, but the rest of the case had needed time to catch up to her. She was better than an expert: she was a miracle. Stefani sweated to get the work done right and no one—other than Joe Hall—worked harder.
That effort paid off. There was a direct correlation between the intensity of her work and our understanding of the facts. We couldn’t change the data, but by the time Stefani was done with it we could see and read it.
The same logic applied to our partnership: we saw each other’s strengths and weaknesses and had much to teach each other. She always was a fearless wiz with Excel, but when she started, she was too shy to make “cold” calls. She taught me how to sort, filter, calculate, and—most important—verify the data; I put her to work making phone calls to hospitals and banks to gather addresses and fax numbers for our document requests. “Don’t worry about how you sound,” I told her. “You’re not asking for any favors; you’re just doing your job.” I quoted Eleanor Roosevelt: “ ‘You must do the thing you think you cannot do.’ ” It’s all about preparation, I told her: disregard the inner critic; get in, get out; do one thing every day that scares you. I rolled out every cliché, giving her all the advice that I struggled to follow myself.
By the time Stefani took the stand, we’d long since stopped working so closely. She was assigned to other cases and I prepped her like any other witness, turning over all our notes and emails to the defense. Still, I knew her well enough to know she was nervous. Of course, I was nervous, too.
The rules of evidence required that we stick to the facts. Only in the summation could we weave all the facts together into a compelling argument for the jury—and that would be Peter’s job, not mine. I could ask only narrow, direct questions, which Stefani could answer only with numbers and percentages and distances. There were no guarantees that the jury would listen, understand, care, or believe the testimony, but that uncertainty didn’t mean we could prepare less.
Dr. Li had written 21,837 controlled-substance prescriptions since January 2008, until the closing of his pain management practice. Stefani had reviewed them all.
Fifty-six percent of the prescriptions Dr. Li had written were for oxycodone, in any strength or formulation. Twenty-seven percent were for Xanax, followed by 5 percent for hydrocodone (including Vicodin or Norco).
Of the 21,837 controlled-substance prescriptions, opioid-based medications accounted for 14,811. Among the opioid medications, oxycodone took the lead by far, representing 82 percent of the prescriptions. By comparison—not that Stefani could furnish such a comparison to the jury, because she was not deemed qualified to do so—oxycodone represented only 49 percent of all the opioid painkiller prescriptions issued in New York City in 2010. Oxycodone was Dr. Li’s “go-to”—his bread and butter.
Xanax held the same position among the non-opioid medications, representing 81 percent of the prescriptions in that category.
In 2008, Dr. Li had written 1,947 controlled-substance prescriptions. In 2009, he wrote 5,454. In 2010, he wrote 7,740. In 2011, he wrote 6,694 between January and November—but we’d interrupted him before the end of the year.II
Some of Dr. Li’s patients had traveled from out of state, she added—Florida, Georgia, and Pennsylvania—but there were also Long Islanders who lived up to sixty-two miles away from the small basement clinic. As Stefani responded to my questions, I projected the charts she’d prepared to illustrate the findings. For instance, Stefani showed the jury that patients between the ages of thirty and thirty-nine received more than 33 percent of the prescriptions Dr. Li issued—a total of 7,282—by far the greatest portion for any age group. Among those were 4,482 controlled-substance prescriptions that Dr. Li had written for patients between the ages of twenty and twenty-nine years old, including Nicholas Rappold. Dr. Li had even written controlled-substance prescriptions for patients under the age of twenty—there were only fifty-eight, but among those, as the jury would later learn, were the prescriptions he’d written for Alli Walton, who started seeing him when she was just nineteen and who’d busted into his lunchroom, on November 27, 2010, begging for more pills.
There were so many hot spots like that in the data. In fact, every data point was a hot spot for one family.
Judge Sonberg looked concerned. His eyes scanned the jurors’ faces. I wondered what he was thinking, and I didn’t have to wait long to find out.
“While I understand to some people statistics are not exciting,” he said, breaking my heart, “I’m going to ask all of our jurors to try to keep their focus. I’m seeing some eyes look like they were starting to close. If you need a break, we will take one in a few minutes, so you can get up and walk around. For some people this is fairly dense and less than exciting.”
I took a breath before picking up again. This wasn’t even the most dry or technical testimony the jury would need to sit through and digest—not by a long, long stretch. In time, they would learn what each little dot in the charts represented: money and lives; overdose cocktails and fatal doses; children, husbands, girlfriends.
They never would hear that one of those dots represented a mass murderer, but he was in there, too.
I. “As a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court. The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.” De Long v. County of Erie, 60 N.Y.2d 296, 307 (1983) (citations omitted); “Ken: the range of perception, understanding, or knowledge,” Merriam-Webster Dictionary.
II. These were the numbers recorded in the transcript, based on the testimony and evidence at trial. Since I did not have access to the original exhibits, I could not verify them and therefore cannot, unfortunately, explain why there is a discrepancy of two units between 21,837 (the total number of controlled substance prescriptions) and the sum of these numbers.