Kokomo Tribune; Kokomo, Indiana

January 18, 2014

Wagoner case postponed until April

Attorneys ask judge to dismiss 16 charges.

By Scott Smith Kokomo Tribune
Kokomo Tribune

---- — Defense attorneys for Dr. Don Wagoner are asking a Howard County judge to dismiss 16 of the 20 counts against the director of the Wagoner Medical Clinics, saying wording in the formal charges could prejudice a jury.

Wagoner is accused of running a prescription drug distribution ring out of his offices in Burlington and Kokomo, writing patients prescriptions for opiate painkillers and other narcotics without any medical basis.

Friday, Wagoner’s trial date was postponed until April 4, with attorneys expected in court March 7 for a pre-trial hearing.

The defense motion, filed Thursday, could further postpone a trial. Wagoner, his wife Marilyn and several other individuals connected with his offices were arrested last April, several weeks after federal agents with the Drug Enforcement Agency raided the clinics.

Wagoner’s attorneys are asking Howard Superior Court 1 Judge William Menges to send all but four of the charges back to the prosecutor’s office for a rewrite, saying allegations in 16 of the counts that Wagoner’s prescribing resulted in an overdose wasn’t necessary.

Prosecutors allege more than 20 people died of overdoses while receiving prescriptions from the Wagoner clinics.

In 16 of the counts, prosecutors make reference to the victims, with sentences such as “Victim #3 ingested [the controlled substance] on or about Oct. 19, 2010, resulting in respiratory depression.”

The attorneys argue those sentences aren’t an essential part of what the prosecutors must prove to gain a conviction on each charge, and are therefore an attempt by prosecutors to prejudice the jurors.

The defense attorneys are asking Menges to require that prosecutors refile the charges so they “do not contain the prejudicial surplusage.”

Scott Smith can be reached at 765-454-8569 or at scott.smith@kokomotribune.com, or on Twitter, @JasonSSmith1.