When Insys founder John Kapoor was found guilty on federal racketeering charges in May, it marked the stiffest conviction yet for an opioid executive at the center of the nation’s addiction crisis. Now, a federal judge says prosecutors failed to present enough evidence to support some of those claims—likely lowering Kapoor’s sentence.
Prosecutors failed to present evidence showing Kapoor and three former Insys sales executives intended for under-the-tongue fentanyl spray Subsys to be prescribed to patients for nonmedical purposes, U.S. District Judge Allison Burroughs said in an order overturning part of the May conviction.
That order would vacate the criminal conspiracy portion of Kapoor and the other ex-employees’ convictions and likely have a big effect on their sentencing in a Boston courthouse scheduled for January.
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The order did not affect the sales fraud charges on which those executives were convicted as part of a long-running scheme to drive up prescriptions of Subsys by underselling the drug’s addictive properties and capitalizing on patient titration, or gradual resistance to painkillers over time.
In her order, Burroughs called the defendants’ actions “reprehensible and designed to financially incentivize healthcare practitioners to prescribe Subsys without regard for the best interests of their patients,” but not grounds for a criminal conspiracy charge.
“Overturning the verdicts … is not meant to condone or minimize this behavior, but is simply a reflection of the fact that the Government did not prove the requisite intent on the part of Defendants, that is, an intent that healthcare practitioners prescribed the drug to people that did not need it or in unnecessarily high doses,” Burroughs wrote. “The Government could have easily proved bribery, but it elected not to charge bribes or kickbacks and now must live with that decision.”
