State v. Campione

Citation462 N.J.Super. 466,227 A.3d 1230
Decision Date24 February 2020
Docket NumberDOCKET NOS. A-1709-18T2,A-1710-18T2
Parties STATE of New Jersey, Plaintiff-Appellant, v. Frank CAMPIONE and Howard Katz, Defendants-Respondents.
CourtNew Jersey Superior Court – Appellate Division

Maura Kathryn Tully, Assistant Prosecutor argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Maura Kathryn Tully, of counsel and on the briefs).

Alton D. Kenney argued the cause for respondent Frank Campione (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Alton D. Kenney, on the brief).

Robert A. Honecker, Jr., argued the cause for respondent Howard Katz (Ansell, Grimm and Aaron, PC, attorneys; Robert A. Honecker, Jr., of counsel and on the brief).

Jodi Claire Krugman, Deputy Attorney General, argued the cause for amicus curiae the Attorney General of New Jersey in A-1709-18 (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jodi Claire Krugman, on the brief).

Before Judges Sabatino, Sumners and Geiger.

The opinion of the court was delivered by

GEIGER, J.A.D.

On leave granted, plaintiff State of New Jersey appeals from a November 16, 2018 order dismissing all counts of superseding Indictment No. 18-05-0685, in its entirety, against defendants Frank Campione and Howard Katz. The order also denied defendants' motion to sever without prejudice and compelled the State to "provide the [d]efendants with the names and addresses of any and all expert witnesses contacted by the State to review the file for this matter." The State also appeals from a December 19, 2018 order: (1) denying its motion to reconsider and vacate the discovery aspects of the November 16, 2018 order; and (2) ordering the State to "provide the [motion court] with a list of the names, addresses, and any oral or written opinions, and summaries thereof, of all expert witnesses contacted by the State in reference to this case for in camera review by Friday, December 21, 2018." We consolidate the appeals for purposes of issuing a single opinion.

Following our review of the record, we affirm in part and reverse in part the November 16, 2018 order, and reverse the December 19, 2018 order.

I.

Campione is a licensed physician assistant and the managing member of Acute Medical Housecalls, LLC (Acute). Katz is a licensed physician who began supervising Campione in 2011.

In September 2012, Campione and Katz entered into a written contract whereby Campione would be responsible for the day-to-day operations of Acute, including "perform[ing] H & Ps and procedures for patients in the home setting," "scheduling of patients," "maintaining patient health records/charts," "performing all patient eligibility checks for treatment," "order[ing] and fund[ing] all prescription blanks," and "handl[ing] all calls during and after hours for patients." Katz agreed to "perform the duties of a supervising physician." His responsibilities included "review[ing] and sign[ing] all charts within seven (7) days of visit" and "maintain[ing] licensing for himself and compl[iance] with all rules and regulations as required by the New Jersey Board of Medical Examiners (Board)." Under this contractual arrangement, Campione would receive eighty percent of Acute's net profits and Katz would receive the remaining twenty percent.

The Investigation

The Monmouth County Prosecutor's Office (Prosecutor's Office) investigated Campione and Katz as part of its efforts to stem the proliferation of prescribed opioids that were not medically necessary.

According to the State, the investigation revealed the following alleged facts.

In October 2015, the Prosecutor's Office received information from a Middletown Police Department detective that K.M.1 and an associate were arrested for possession and distribution of prescription medications that were controlled dangerous substances (CDS). K.M. told police he had purchased the prescription blank2 he used to obtain the CDS from an individual purporting to be a physician inside a McDonald's restaurant in Neptune Township. The prescription blank was recovered by police. It was issued by the office of Frank Campione, RPA-C, Acute Medical Housecalls, LLC, and listed Howard Katz, D.O., as Campione's supervising physician.

Upon receiving this information, the Prosecutor's Office began investigating Campione's medical practices. A subpoena duces tecum was served on New Jersey Division of Consumer Affairs requesting all information relating to Campione from the New Jersey Prescription Monitoring Program (NJPMP) from January 1, 2015 through November 5, 2015. Documents revealed that Campione had prescribed medication to 166 patients. K.M. had been prescribed fifteen separate prescriptions for Adderall, Oxycodone

, and Xanax between January 1, 2015 and September 21, 2015.

An investigator in the Division of Consumer Affairs Enforcement Bureau advised the detective that Campione had a Physician's Assistant's license that was valid through August 31, 2017. The investigator also informed the detective there appeared to be no affiliation between Campione's practice, Acute, and Katz's medical practice in Colts Neck.

A subpoena duces tecum served on Comcast revealed the identity of the subscriber for the phone number listed on Campione's prescription blank to be Campione's wife, and the address used for the account to be their residence in Brick Township.

On December 2, 2015, as a result of information gathered during the investigation, detectives arrested and charged K.M. with fifteen counts of obtaining controlled dangerous substances by fraud, N.J.S.A. 2C:35-13. During a post-arrest interview, K.M. told the detectives he was referred to "Dr. Frank" by a third-party who he met at a methadone

clinic. K.M. described where he met Campione, once inside a McDonald's restaurant in Neptune, and later inside Campione's vehicle. K.M. also described his interactions with Campione, including the examinations that took place, the prescriptions that he was provided, and how much he paid Campione each time.

Detectives had K.M. call Campione and set up a controlled buy. Campione instructed K.M. to meet him at the Monmouth Mall the following day. The next day, investigators outfitted K.M. with a recording device and drove him to the Monmouth Mall parking lot to meet Campione. Detectives observed the meeting from a distance. When Campione arrived, detectives observed an unknown male, later identified as P.S., exit a vehicle and enter the front passenger seat of Campione's SUV.3 P.S. eventually exited the vehicle, whereupon Campione drove over to where K.M. was standing.

K.M. entered Campione's SUV and provided him with his previous prescription bottles. In return, Campione provided K.M. with completed prescription blanks to be filled at a pharmacy and K.M. paid Campione $175 in cash. As K.M. attempted to exit the vehicle, Campione told him not to "runaway yet" because Campione was "not just somebody who hands out scripts," and he needed to "do a few things." Although it is unclear from the audio recording what occurred during the examination, there was mention of a check of K.M.'s breathing, blood pressure, and the amount of oxygen in his blood.4

The examination lasted less than two minutes. There was also some discussion about whether K.M. was taking his medications at the appropriate times.

K.M. then exited the vehicle. After the completion of the controlled buy, K.M. turned over prescriptions for Xanax

, Oxycodone, and Adderall that Campione had just issued.

In December 2015, detectives served a subpoena duces tecum upon Katz for records relating to Acute. According to a detective's affidavit and grand jury testimony, Katz informed the detectives on December 14, 2015 that he was not involved in Acute's day-to-day practice. Katz explained that Campione's "role" was to meet with patients who were confined to their homes, or that were unable to travel to a doctor's office. Katz told the detectives that he does not review the prescription medications Campione prescribed for patients. Katz provided the detectives with an Excel spreadsheet list of "active" patients that he had received from Campione's wife on October 7, 2015. Detectives stated that K.M. was not on the list of active patients. Katz denied knowing who K.M. was, and likewise could not find him listed as a patient. From a later check of the NJPMP, it was learned that twenty-three patients who had received medications from Campione were not on the Excel patient list provided by Katz.

A subpoena duces tecum was also served on TD Bank for financial records pertaining to Campione and Acute from January 1, 2015 to December 20, 2015.

On February 2, 2016, P.S. was arrested and charged with two counts of obtaining CDS by fraud, N.J.S.A. 2C:35-13. According to the detective's affidavit, during his post-arrest interview, P.S. informed detectives about his December 3, 2015 meeting with Campione in his vehicle at the Monmouth Mall parking lot. After Campione checked P.S.'s "basic vital signs," Campione gave P.S. two prescriptions for opioids. P.S. paid Campione $125 and exited the vehicle. P.S. further informed detectives that he had been seeing Campione for a couple years and several of their interactions occurred in the same manner.

P.S. also stated Campione was originally prescribing him Percocet

for pain management. According to P.S., however, Campione received a letter from "the Board" that stated Percocet should not be used for chronic pain. As a result, Campione switched the medication from Percocet to Opana (oxymorphone ), another opioid pain medication. When P.S. felt Opana was not working well enough, Campione also began prescribing him Hydromorphone. P.S. stated these two medications were what he had been prescribed by Campione "for quite a while."

The Prosecutor's Office applied for a warrant to search Campione's residence, business, and vehicle for evidence of the...

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