ML20217G008

Transcript of 980326 Telcon of M Elamir (Closed) in Rockville,Md.Pp 1-19.Certificate Encl

ML20217G008
Person / Time
Issue date:	03/26/1998
From:	NRC
To:
References
NUDOCS 9804020146
Download: ML20217G008 (21)

Text

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'l y UNITED STATES OF AMERICA

,2-NUCLEAR REGULATORY COMMISSION 3 - - -- - - -- - -- - -

- -X

'4' 'In the Matter of:  :

5 TELEPHONE CONFERENCE OF  :

6 MAGDY ELAMIR, M.D.  :

I 7 (CLOSED)  :

8- - - - - - - - - - - - - - - - -X 9 Judges Conference Room 10 U.S. Nuclear Regulatory Commission 11 11545 Rockville Pike 12 Rockville, MD 20852 13 Thursday, March 26, 1998 14 The above-entitled' matter-came on for telephone

() 15' . conference, at 2:35 p.m.

16 BEFORE:

17 CHAIRMAN BECHHOEFER 18 JUDGE JERRY R. KLINE I

19 JUDGE PETER S. LAM l 20 APPEARANCES 21 On behalf of the Interviewee:  ;

i 22 Thomas A. Lee, II, Esquire  !

23 Dechert, Price & Rhoades 24 1717 Arch Street, 400 Bell Aclantic Tower 25 Philadelphia, PA 19103 l

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. 2 1 APPEARANCES: [ Continued)

,2 On behalf of NRC Staff:

3 An P. Hodgdon, Esquire

' 4, Office of General Counsel

'5- U.S. Nuclear Regulatory Commission 6- Rockville, Maryland 20555

.y.

! 8 On behalf of the Board:

9 Lee Dewey, Esquire 10 Office of Chief Counsel l 11 U.S. Nuclear Regulatory Commission 32 Rockville, Maryland 13 n 14 15 16 17 18 19 L 20 21 22 23-24 25

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. 3 1 PROCEEDINGS

(]j 2 [2:35 p.m.)

3 CHAIRMAN BECHHOEFER: Okay. We have called this 4 conference call to ascertain whether the stay of the 5 proceeding involving Dr. Elamir should be continued or 6 whether it should be lifted. And I might first say present 7 here before the Board, all three Board members, plus Lee 8 Dewey, who is counsel to the ASLBP, and could the other 9 participants, for benefit of the reporter, could you 10 identify yourselves?

11 MR. LEE: Certainly. This is Thomas Lee, I am 12 counsel for Dr. Elamir and also for Newark Medical 13 Associates.

14 MS. HODGDON: Ann Hodgdon for the NRC staff.

/3

(_) 15 CHAIRMAN BECHHOEFER- Now, to make things easier 16 for the reporter, before you respond to various questions, 17 it would be a good idea to identify yourselvas, although j 18 your voices are fairly well differentiatable. On other 19 conference calls I have had, sometimes there are some  !

20 problems.

21 The stay motion has been -- was first filed by Dr.

22 Elamir back in October, I think, and we granted that stay 23 until March 5th. This is all pending disposition by the 24 Department of Justice of allegations against -- potential 25 criminal allegations against Dr. Elamir.

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. 4 1 In response to the request -- Dr. Elamir has

,2 request that the stay be extended and in response, the staff 3 has opposed that and they have forwarded to us a letter 4 which was a copy of a 1etter which was also written to Dr.

5 Elamir's counsel concerning the status of the Department of 6 Justice investigation. And the staff has taken the position 7 that the stay should now be lifted since the conditions for 8 the stay had been fulfilled.

9 First, let me ask whether Dr. Elamir, or through 1

10 his counsel, Mr. Lee, has received a copy of the staff, a i l

11 faxed copy of the staff motion. I I

12 MR. LEE: Yes. This is Tom Lee. Yes, we did 13 receive yesterday a fax a copy of the NRC staff opposition I 14 to the motion to extend the stay. ,

15 CHAIRMAN BECHHOEFER: And that would lead me into l 16 inquiring whether you have formed a position on what we 17 should do with the stay, whether the stay should be lifted

! 18 imminently or continued for one reason or another?

19 MR. LEE: Okay. My position -- again, this is Tom )

l 20 Lee.

21 CHAIRMAN BECHHOEFER: Right. I 22 MR. LEE: My position on that is that the letter 23 read literally does not change the current situation and the 24 current dilemma that Dr. Elamir finds himself in. All that 25 the letter says, if read literally, is that the Department O ANN RILEY & ASSOCIATES, LTD.

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1 of Justice ~hasn't made up its mind yet whether or not they l() ,2 are going to pursue criminal charges against Dr. Elamir. It 3~ does n'ot say that'they have closed their investigation. It 4 'does not say that they have fully investigated it and i .

5 decided to decline prosecution.

6 It simply says that Dr. Elamir is not a, quote, ,

7 " target", close quote, in their opinion, and it defines how 8' that term target, .which is a -- which is a defined term in l 9 the United States Attorney's and the Department of Justice l

10 manual means. And a determination, I know from my own 11 experience as a former Assistant U.S. Attorney, that a 12 determination as to whether or not someone is a target is a

! 13 very subjective one. And so I read this letter, if read 14 literally, as simply saying, well, we haven't made up our

() 15 minds yet,.but we might --.we reserve the right to change 16 our minds down the road.

17 And because of that, I find Dr. Elamir to be in

.18 the same dilemma, that is of having to choose to pursue his

'19 rights in the administrative hearing at the risk'of 20 potentially incriminating himself in connection with the 21 criminal investigation, or else, in effect, forfeiting his 22 rights to go forward on the administrative front in order to 23 protect his interests with respect to the criminal 24 investigation. And, therefore, our position is that the

25 need for the stay continues. i l

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6 1 Now, having said that that is the way the letter

. 2 is read literally, without getting into detail, there may 3 well be -- there may well be things to be read in between 4 the lines here that might ultimately -- to lead us in 5 another direction. But I think at this point, as of today, 6 the need for the stay, in our view, continues.

7 CHAIRMAN BECHHOEFER: Does staff have any 8 comments?

9 MS. HODGDON: As you know, or as you recall, Judge 10 Bechhoefer, in this case, in the first place, it was Dr.

11 Elamir who sought the stay and the staff did not object.

12 And when asked by the board to furnish some facts or some l

l 13 information that would explain the staff's position, the t

14 position that the staff took was that the Department of i 15 Justice had asked us to stay the proceedings.

16 And then, as you know, in a related matter, the

! 17 Department of_ Justice not to stay the proceedings further.

18 So in the case, the inference was, I think, that the 19 Department of Justice thought that we ought to go forward 20 with this. And, therefore, we got this letter.

21 I don't entirely agree with Mr. Lee because I find 22 the letter to be somewhat cryptic. I can't understand why 23 the letter was sent unless it was meant to be in response to 24 a need for the letter addressing the continuing of the stay.

25 And so, I mean I will agree that what the letter means is

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7

-1 not entirely clear, but the staff thought that what it meant r~% j

( ) 2 . was that the Department of Justice felt that there was no j 3 need for the stay to continue. And that's the way we took, j 4 and that's why we filed what we did.  ;

I 5 MR. LEE: Just to respond to that -- this is Tom '

6 Lee again. I certainly would agree that the letter  !

7 suggested the Department of Justice itself does not see the 8 need to continue the stay, but that doesn't solve my 9 client's problem. Because what I perceive the Department of 10 Justice doing here is saying, well, we are not ready to -- l 11 we are not ready to make our minds, but let's have -- let's 12 go ahead and have the administrative proceeding play out in 13 front of us, and then we, the Department of Justice, will 14 come in afterwards, and then we will decide whether or not

,i--  :

(_,\1 15 we ought to bring criminal charges.

16 And while I certainly recognize that as a tactical 17 move that may have some tactical advantage to the Department 18 of Justice, as I said before, it puts my client in the 19 untenable position of having to choose between going forward 20 on the administrative side and potentially incriminating 21 himself in the eyes of the Justice Department, or taking the 22 Fifth Amendment to protect his rights in the criminal 23 investigation and, in effect, forfeiting or severely 24 handicapping his ability to go forward on the administrative 25 side. And I, you know, suggest that, at least in my view, r~%

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8 1 'that may be exactly what the Department of Justice is trying

/~N (v ) ,2 , to accomplish here. So, at least for my purposes and my 3 client's purposes, I believe that the need for the stay is 4 just as critical as it every was.

5 JUDGE LAM: This is Peter Lam. I have a question 6 for the staff. Does the continuing of the staff harm the 7 staff's interests or hinder the staff's effort in this 8 proceeding?

9 MS. HODGDON: I understood harm the staff's 10 interests, but I didn't understand hinder the staff. What 11 is the word after that?

12 JUDGE LAM: The efforts.

i 13 MS. HODGDON: Efforts. Harm the staff's l 14 interests. Well, to a certain extent, a stay, the longer it i /~T

' ( ,) 15 goes on, the more it interferes.with the ability to contact j l

16 witnesses, the ability to get information regarding what l I 17 happened. So witnesses disappear or die, or whatever 18 happens to witnesses. So, the general proposition, that's l

19 true. And so I don't really know to what extent that is 20 true here of how many witnesses that might have been 21 available, are not available as a result of the stay.

22 I would suggest that perhaps some limited stay 23 might be appropriate in order to try to figure out what to l 24 do here. But the longer this goes on, the more likely it is l 25 to hinder the staff's efforts and to harm the staff's l j

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9 1 interests, which, of course, we represent also to be the s

(Ji ,

2 public interest here, the health and safety interest.

3 MR. LEE: Well, again, Tom Lee on behalf of Dr.

4 Elamir. Just to respond, I don't know that there is any 1 l

5 evidence at this point to suggest that there are any )

4 6 witnesses that are no longer available or that the staff has 7 been prejudiced thus far with respect to the stay. Nor do I 8 think that continuing of the stay for a period of time in 9 the future is necessarily going to cause that harm.

10 And with respect to sort of the public interest, 11 and the public health and safety, as I believe the Board 12 knows, Dr. Elamir, at least, is currently under an order 13 prohibiting him from participating in any licensed activity, 14 and Newark Medical Associates, the licensee in this case,

()

(, 15 has voluntarily suspended all licensed activity. And, 16 therefore, I don't believe that the continuation of the stay l l

17 poses any harm to the public from a health and safety 18 standpoint. l 19 CHAIRMAN BECHHOEFER: This is Judge Bechhoefer. I 20 would like to ask a couple of questions. First, Mr. Lee, 21 your motion, your continuance motion, I guess, spoke in 22 terms of criminal proceedings not only against Dr. Elamir 23 but against Newark Medical Associates. Would you still want 24 a Justice release of -- or statement that they are no longer 25 investigating Newark Medical Associates? Which is not, of ANN RILEY & ASSOCIATES, LTD.

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10 1 course, a party to this proceeding.

( ,2 MR.' LEE: Ccrrect.

3 oCHAIRMAN BECHHOEFER: But they.certainly are in th l

)

4 background. Would you, before you sought the stay lifted, j

5 would you like a statement by -- or would you insist.on a '

6 statement by Justice that they are no longer investigating' )

1 Newark Medical Associates?

7 -

.' 8 MR. LEE: Well, certainly, I mean that's -- l 9 CHAIRMAN BECHHOEFER: I am taking this from your 10 motion that you filed for continuance.

l 11 MR. LEE: Right. I mean certainly, at least in my 12 t.ind, I have sort of treated them as one and the same, in r

13 the sense that if Newark Medical Associates would l 14 potentially have any criminal liability, it would be

() 15 probably as a result of either actions or inactions on the 16 part of Dr. Elamir. So, yes, that is a concern of mine.

17 I have rightly or wrongly sort of interpreted the 18' governme.9t's letter here as -- even though it doesn't state

'19- this as essentially applying to both, but, yeah, that Newark 20 Medical Associates is of -- their position in all of this is 21 of concern to me from the criminal standpoint as well.

22 CHAIRMAN BECHHOEFER: Now, my other' question is, 23 would there be any adverse effect if we continued the stay 24 in this proceeding but went ahead with the currently 25 scheduled proceeding involving Dr. Ben-Haim, which is before -l l

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11

~1 the same. board.

'. 'NJ '

_.-2' MR. LEE: Right.

3 CHAIRMAN BECRHOEFER: Where this hearing is 4 scheduled. The hearing schedule now is set for May, I think 5 it's 27th or 29th and we have contemplated perhaps having I 6 simultaneous,or consecutive hearings so that the witnesses 7 would only have.to appear in one place at one_ time. We 8 .would not -- we don't think the cases necessarily should be 9 consolidated, but perhaps consecutive hearings would save at 10 least some wear eni tear,.if nothing else, on participants.

11 And we'were considering that, but-if we stay much longer --

12 I assume that Dr. Elamir, or Mr. Lee, you would wish some 13 discovery period prior to hearing. Everybody else has. Dr. I 14 Ben-Haim has gotten 60 days discovery, which has already hI 15 started.

]

1 16- MR. LEE: Certainly, if there is going to be a '

17 hearing, we would like to have a period to conduct 18 discovery. I don't -- to get back to your. original question 19 though, I don't believe that 4.t would be -- that there would  ;

20 be any harm or any prejudice co Lt. Elamir if the Ben-Haim

'21 proceeding were to go forward as scheduled.

22 You know, it may mean having to recall witnesses 23 at some point in future, but I don't see there being any l 24 prejudice to Dr. Elamir if the Ben-Haim proceeding goes i

i 25 forward as scheduled, i

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12 1 MS. HODGDON: What about prejudice to Dr. Ben-Haim

() .

2 if no one is able to use Dr. Elamir's testimony in this? I 3 suppose -- I would say other parties, to Dr. Ben-Haim or to 4 the staff by inability to call Dr. Elamir in this matter 5 when the Ben-Haim procedure goes forward?

6 This is Ann Hodgdon. I am sorry, I keep 7 forgetting to say who is speaking.

8 At any rate. Yer, I would raise that point.

9 There may be prejudice to the staff because the staff might 10 i .it to call Dr. Elamir in the Ben-Haim proceeding, and I 11 presume that Dr. Ben-Haim would not be available or if 12 called, he would take the Fifth Amendment.

i 13 CHAIRMAN BECHHOEFER: You mean Dr. Elamir.

l 14 MS. HODGDON: Dr. Elamir, excuse me. Did I say 15 Dr. Ben-Haim?

16 CHAIRMAN BECHHOEFER: Yes.

17 MS. HODGDON: I meant Elamir.

l 18 MR. LEE: Right. And I mean I think that that is j 19 certainly a distinct possibility i' the Ben-Haim proceeding l 20 goes forward under the current circumstances. However, it

21 is also a distinct possibility. Unless and until Dr. Elamir

22 has some stronger assurance than this letter from the 23 Department of Justice that they are not interested in 24 pursuing criminal charges against him, I am not sure that it 25 would be in Dr. Elantir's interest to make himself available

(

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13 1 to either side in the Ben-Haim proceeding as long as there f( ) . 2 is a possibility that his testimony could be useo acainst 3 him.

4 MS. HODGDON: Excuse me. Ann Hodgdon, again.

5 That presents somewhat of a dilemma for the staff, because 6 where Dr. Ben-Haim wants to go forward and Dr. Elamir 7 doesn't, then the staff is put to a kind of proof that maybe 8 the it shouldn't be. I mean it is not the best case for the i I

9 staff.  !

10 Nevertheless, if we said we would go forward with 11 Ben-Haim expecting that somehow or other this matter of Dr. j 12 Elamir would be resolved somehow at the Justice Department, 13 but looking at it now, it is not at all clear, given Mr. j 14 Lee's interpretation of the letter, it is not at all clear  !

(Oc) 15 when we are going to hear from the Justice Department.

16 ,

I mean we are accustomed here, as these Judges i

17 know, to a letter of declination and they write to us'and

! 18 say, well, that matter that you referred to us, we are l 19 declining prosecution. But we understand that. But we are t

l 20 not -- I don't think we are accustomed to this kind of 21 letter, the non-target letter, and just exactly what it is 22 supposed to mean, unless it is supposed to mean more like 23 the same thing.

24 But I can see how people might differ about what 25 it means. And I mean I appreciate Mr. Lee's statement that iG 4 ANN RILEY & ASSOCIATES, LTD.

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e

. 14 1 read quite literally, it doesn't really mean very much.

() .2 MR. LEE: This is Tom Lee again. What it 3 basically means is as of 2:55 on March ;'Eth, they haven't 4 yet decided whether to bring charges ' gainst my client or 5 not. And, again, I recognize that it ma} put -- it may put 6 the staff in a difficult position, but I don't know that 7- until there is some greater assurance from the Department of 8 Justice about what my client's status is, that situation is 9 going to change.

10 MS. HODGDON: Ann Hodgdon, again. Yes,.I made 11 that argument so that the Board would have some 12 understanding of everything is_ involved here and that it is 13 not simple. What the solution to this is is not simple. I 1

14 can't recall that we have ever had a similar case involving i

() 15 scheduling and so forth, that we have ever had a case that i

16 came up in quite this way before.

17 CHAIRMAN BECHHOEFER: Let us go'off the record 18 just for a minute.

I l

19 [ Discussion off the record.]

-20 CHAIRMAN BECHHOEFER: Okay. We're back on the 21 record. Can everybody hear us?

22 MS. HODGDEN: Yes.

23 MR. LEE: Yes.

24 CHAIRMAN BECHHOEFER: We've determined that the 25 stay should be continued for a short period of time, but we

'[

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~

15 1 think the staff itself should go to the Department of

()- . 2 Justice and with a formal request that Justice -- or we're 3 suggesting this anyway,-that Justice formally declineLor 4 find out whether Justice is formally declining prosecution.

5 I think the staff could probably-get a letter like 6 that similar to what they've gotten in other cases, and it 7- would be useful to have the staff contact Justice and then 8 we would, although our decision to continue the stay would {

! 9 not be for a lengthy period of time, we would withhold 10 ~ decision on the motion before us until we hear from.the l

11 staff,_ assuming that occurs within the next several weeks l

12 perhaps, or if the staff finds out that it can't get a 13 better letter, it could tell us that as well.

14 Would that be satisfactory to various parties?

/~s

(,) 15 That's what we generally would --

l 16 MS. HODGDEN: It is satisfactory to the staff. If i i'

17 he would give us a date, we will try to do it by that date.

[

i 18 You said several weeks?

19 CHAIRMAN BECHHOEFER: Well, I was being fairly  !

20 general. I don't know how-long it would take you to both I 21 prepare a request to Justice and have Justice respond. I 22 don't know what a realistic time for that would be.

23 MS. HODGDEN: The second week in April? You said 24 two weeks, a couple of --

25 CHAIRMAN BECHHOEFER: Well, I was doing that off O ANN RILEY & ASSOCIATES, LTD.

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16 1 the top of my head, but --

-( ) .2 MS. HODGDEN: How about the 10th of April?

Is-3 that a weekday?

4 MR. LEE: Well, let me -- the 10th is actually 5 Good Friday.

6- MS. HODGDEN: Oh, sorry.

7 NR. LEE: That's okay.

8 MS. HODGDEN: That's right, if the 12th is Easter, 9 the 10th is Good Friday. Sorry.

10 MR. LEE: I mean, certainly-from Dr.'Elamir's 11 standpoint I think that that could be useful. My own 12 suggestion would be though that a period of approximately --

l 13 a period of 30 days might be more reasonable and l

l 14 appropriate. I don't know how quickly Justice moves these

)- 15 days, but --

16- CHAIRMAN BECHHOEFER: I didn't either. I was just 17 taking two weeks off the top of my head, but I realize it 18 takes some time to even draft a letter and get it out and l

l 19 that kind of thing, and for them to get it back might-take a l 20 while. So --

21 MR. LEE: And the other thing is I'm going to be 22 away from April 2 through April 10, so I would not be around 23 to the extent that my involvement in any discussions with l

24 Justice about such a letter might be necessary. I'm going i 25 to be unavailable for a substantial portion of those two

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• 17 1 weeks. So my thought would be if the Board would give us 30

() .2 days to-see if we can make some progress on that front I 3 'think that that would be reasonable and useful.

4 MS. HODGDENi April 25.

3 MR.' LEE: April 25 is a Saturday. The 24th is a 6 Friday. The 27th is a Monday.

7 CHAIRMAN BECHHOEFER: Why don't we set April 27 as 8 the date by which we can find out. If the staff finds out 9 earlier, of course, they can tell us, and --

10 MR. LEE: Sure.

11 CHAIRMAN BECHHOEFER: We will still I think hold 12 to the schedule we have for Dr. Ben-Haim's hearing, because 13 I think there was some hardship involved there for Dr.

14 Ben-Haim not being able.to participate in various 15 activities. And he wrote the Chairman personally about that 16 last year, but we want to avoid any to the best we can 17 problems of the sort he raised.

18 So I think we'll set April.27'as the date. The 19 will issue an order confirming all of this, but it won't 20 come out for probably'a couple weeks. In fact, we'll 21 .probably withhold any issuing of this order until after we 22 receive the response from the staff. And I might say that 23 if Dr. Elamir or Mr. Lee want to contact Justice yourself l

24 and can get some sort of a better release, that is not l_ 25 inconsistent with anything we've asked the staff to do.

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18 1 MR. LES: Just so the Board knows, I mean, I have

() .2 already -- I have been in contact with Justice, and as I 3 said a few minutes ago, I think that there may be some --

4 there may be some benefit to us being involved in '

5 communications just to try to clarify the situation.

6 CHAIRMAN BECHHOEFER: Right. We're not precluding l I

7 that at all.

8 MR. LEE: Okay. I understand.

9 CHAIRMAN BECHHOEFER: We just thought maybe we 10 should get the staff involved, because the staff gets formal 11 declination letters --

12 MS. HODGDEN: Sometimes.

13 CHAIRMAN BECHHOEFER: Sometimes. Right. But they 14 do get them occasionally.

./N j

• Q 15 [ Laughter.) j l

16 So we will set April 27 then as the date, and I l 17 guess until we hear from the parties, we won't issue this-18 order in final form. We might issue a little memorandum 19 order'saying that that's what's going to happen, but we 20 won't issue any formal rulings on the stay at this time.

21 Anything further that anyone wants to raise before 22 we sign off? I 23 MR. LEE: This is Tom Lee. Not from me.

24 MS. HODGDEN: Not I, either. Not for the staff.

25 CHAIRMAN BECHHOEFER: Okay. Well, we thank you b

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I

i 19 1 for participating on such short notice. As I say, we'll

()'

, 2 3

- be -- the Board ~will be tied up doing other things next week, and so that was one of the reasons to try to resolve 4 the questions beforehand, and'at least we got a framework 5 for doing it now. So we thank you all.

6 MR. LEE: Thank you very much.

7 CHAIRMAN BECHHOEFER: Right.

8 MS. HODGDEN: Thank you.

9 CHAIRMAN BECHHOEFER: Okay.

10 MR. LEE: Bye-bye.

11 CHAIRMAN BECHHOEFER: Bye, 12 [Whereupon, at 3:14 p.m., the telephone conference 13- was concluded.]

14

() 15 16

~ 17 18 19 20 21 22 23 24 l

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. . before the United States Nuclear Regulatory Commission in

-the matter of:

NAME OF PROCEEDING: TELEPHONE CONFERENCE OF MAGDY ELAMIR, M.D.

(CLOSED)

CASE NUMBER:

l PLACE OF, PROCEEDING: Rockville, MD l

l were held as herein appears, and that this is the original transcript thereof for the file of the. United States Nuclear Regulatory Commission take'n by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the forego g proceedings.

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