An Ohio Court of Appeals recently weighed in on the proper protocols one must take in order to successfully assert one’s Fifth Amendment Constitutional Right against self-incrimination in relation to a discovery request in a civil case that may have incriminating affects in an ongoing anti-kickback statute (AKS) investigation. The Fifth Amendment of the United States Constitution reads in pertinent part that, “No person shall . . . be compelled in any criminal case to be a witness against himself.” In Marilyn Williams-Salmon v Deepak Raheja, M.D., the court ruled that to assert the Fifth Amendment in a civil case which in turn would have shielding effects in an ongoing AKS prosecution, one must, “answer with sufficient specificity to provide the trial court with a record upon which to decide whether the privilege has been properly asserted to each [request].” The court found that because the defendants did not provide the requisite specificity, the court ordered that the defendants must respond to the civil requests.

In Williams-Salmon, the United States Attorney’s office informed the plaintiff/patient, Marilynn Williams-Salmon, that she was a potential victim of an illegal kickback scheme. Although defendants, Dr. Deepak Raheja along with two Avanir Pharmaceutical Representatives had been federally indicted, Ms. Williams-Salmon proceeded to file a civil action against all defendants.  Plaintiff alleged that Dr. Raheja misdiagnosed her in an effort to prescribe medication provided by Avanir Pharmaceuticals. In return, according to the patient, Dr. Raheja was given illegal incentives for prescribing these medications. Dr. Raheja is even alleged to have prescribed these medications without patients showing the requisite symptoms to qualify for the prescription.

During the course of the litigation, Plaintiff issued more than 100 discovery requests to the defendants.  Defendants did not substantively respond to the requests; instead, for each request, they drafted the following response: “Defendant respectfully declines to answer based on the protection guaranteed by the Fifth Amendment of the United States Constitution.” For example, one of the interrogatories “asked each appellant to identify and/or confirm: Name, current, and former addresses, employers.” The appellate court noted that these basic questions do not ask for privileged or self-incriminatory information and in turn are neither eligible for Fifth Amendment protection in the defendant’s AKS prosecution nor protected in the civil suit.

Ms. Williams-Salmon subsequently moved to compel, the trial court granted Plaintiff’s motion and the defendants appealed the trial court’s decision, arguing that the lower court committed reversible error by ordering them to respond to discovery despite their invocation of the Fifth Amendment.  In rejecting defendant’s argument and affirming the trial court’s opinion, the appellate court found that the defendants did not properly invoke the right against self-incrimination because a defendant facing AKS prosecution is not automatically shielded by the Fifth Amendment and thus a plaintiff may obtain discovery in their civil malpractice suit.  Recognizing that several of Plaintiff’s interrogatories had incriminating potential that could be used in the AKS prosecution, the court cautioned the defendants that they must properly invoke the Fifth Amendment before the trial court could determine its application to the discovery request at issue.

The judgement in Salmon highlights the importance of following procedural protocols when invoking the Constitutional Right guaranteed by the Fifth Amendment. Without such procedural responses, a court may not help an individual protect themselves against self-incrimination, even when the court acknowledges some information may be self-incriminating. It also suggests that defendants in violation of AKS can face both criminal and civil suits simultaneously and have to defend themselves on all counts, with concerns about how each case could impact the other.

The authors thank Anastasia Redmond for her assistance with the analysis and drafting of this article. Anastasia is a 2022 McGuireWoods LLP Summer Associate in the Chicago Office. She is a Rising Third Year Law Student at Chicago Kent College of Law with an anticipated graduation date of May 2023. At Chicago Kent Anastasia is a member of the Moot Court Honor Society, Black Law Student Association, and Head Ambassador for BARBRI.