A former Depuy Synthes medical device sales representative was arrested June 26 for allegedly defrauding a Boston area hospital and lying to federal authorities, according to the Justice Department.
According to the indictment, Matthew Capobianco, 45, of Winchester, Mass., a former DePuy Synthes sales representative and team lead, allegedly defrauded the hospital out of hundreds of thousands of dollars’ worth of spine products. He was indicted on eight counts of wire fraud and one count of making material false statements. Capobianco was arrested today and, following an initial appearance and arraignment in federal court in Boston this afternoon, was released on conditions.
According to the indictment, from January 2016 through June 2017, Capobianco defrauded a Boston area hospital out of hundreds of thousands of dollars’ worth of spine products that he falsely represented were used in spine surgeries he covered. As a sales representative at DePuy, Capobianco was present in operating rooms at the hospital during spine surgeries dressed in scrubs and a surgical mask. In that role, Capobianco was responsible for tracking the type and quantity of DePuy products used in the spine surgeries on usage forms that he submitted to the hospital’s billing department, among other things. It is alleged that Capobianco’s compensation was tied to the volume of products that surgeons at the hospital and elsewhere used in their surgeries. To boost his sales numbers, increase his compensation, and attain higher rankings within DePuy’s sales organization, Capobianco falsely represented on usage forms that more—and more expensive—DePuy products were used during the spine surgeries than were actually used. Capobianco’s alleged fraudulent overbilling caused the hospital to pay DePuy for products that were not used in spine surgeries and caused DePuy, in turn, to pay Capobianco commissions that he was not entitled to.
It is further alleged that, in late 2016, Capobianco instructed a subordinate DePuy sales representative to bring certain DePuy spinal implants into an operating room at the hospital for a surgery, without those implants first being sterilized. As Capobianco and his sales colleagues understood, using unsterile implants in a spine surgery could lead to serious infection or death. It is alleged that on May 30, 2017, after this 2016 incident, , Capobianco himself brought DePuy spinal implants that were not in compliance with the hospital’s sterilization policies to an operating room at the Boston area hospital. Concerned about the dangers posed by unsterile implants, hospital employees confiscated the spinal implants to ensure they were not used in a scheduled surgery that day, and Capobianco was banned from the hospital that afternoon. During a subsequent interview with federal agents that day about the sterilization incident and his interference with the hospital’s sterilization processes in the months leading up to it, Capobianco allegedly made false statements, including about his actions earlier that day.
The charges of wire fraud provide for a sentence of up to 20 years in prison, three years of supervised release and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of false statements provides for a sentence of up to five years in prison, three years of supervised release and a fine of $250,000 or twice the gross gain or loss, whichever is greater. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and statutes which govern the determination of a sentence in a criminal case.
Acting United States Attorney Joshua S. Levy; Christopher Algieri, Special Agent in Charge of the U.S. Department of Veterans Affairs, Office of Inspector General, Northeast Field Office; Christopher DiMenna, Acting Special Agent in Charge of the Federal Bureau of Investigation, Boston Division; Fernando McMillan, Special Agent in Charge of the Food and Drug Administration, Office of Criminal Investigations, New York Field Office; and Robert Coviello Special Agent in Charge of the U.S. Department of Health and Human Services, Office of the Inspector General, Office of Investigations made the announcement today. Patrick M. Callahan, Deputy Chief of Levy’s Health Care Fraud Unit and Assistant U.S. Attorney William B. Brady of Levy’s Health Care Fraud Unit are prosecuting the case.
Jeffrey Newman is a whistleblower lawyer who handles healthcare cases under The False Claims Act. He can be reached at Jeff@JeffNewmanLaw.com or at 617-823-3217
