The judge in the Long Island Rail Road disability fraud trial said Friday he may allow jurors to hear evidence that New York's largest malpractice insurer refused to renew the policy of accused Rockville Centre orthopedist Dr. Peter Lesniewski because his claims history didn't meet underwriting standards.
U.S. District Judge Victor Marrero said the defense may have opened the door to the damaging evidence by claiming in opening arguments that Lesniewski, charged with vouching for phony disability claims for LIRR retirees, was a respected surgeon who devoted his life to medical service.
Prosecutors, who are expected to rest their case on Monday, said in a court filing that Medical Liability Mutual Insurance Co. notified Lesniewski in 2007 that it wouldn't renew. The filing said his record included payouts on 15 claims over 20 years, including $1.25 million on a 2006 claim and $525,000 on a 2007 claim.
The government described the malpractice record as "staggering," and said the threat to Lesniewski's surgical practice was a motive for his alleged willingness to vouch for LIRR retirees' phony claims.
Defense lawyer Thomas Durkin said his client's consultation with LIRR retirees began long before the nonrenewal, and told the judge that the evidence would be unfairly prejudicial.
Lesniewski is charged with being part of a massive conspiracy dating to the 1990s to make fraudulent disability claims to the federal Railroad Retirement Board on behalf of hundreds of LIRR workers taking early retirement.
Co-defendants Marie Baran of East Meadow, a former retirement board manager, and Joseph Rutigliano of Holtsville, a former LIRR union leader, are accused of helping retirees fill out false applications as consultants. Twenty-five others have pleaded guilty in the case.
Prosecutors, in court papers, said they also want to introduce evidence that the malpractice nonrenewal was upheld by the state medical society, and that Lesniewski received administrative warnings from the state Office of Professional Medical Conduct in 2002 and 2004 for inadequate record keeping on prescription medications and for two botched surgeries.
Lawyers for Lesniewski and Rutigliano say their clients will not testify next week. Baran's lawyer has said her client will.