The federal judge in the case of four ex-Synthes executives wrote in a filing Wednesday that defendant Thomas Higgins' nine-month sentence is correct.
The filing said Higgins "personally participated in an elaborate, carefully implemented scheme to deliver adulterated and misbranded medical devices to physicians for ultimate use on unknowing, and completely uninformed, medically frail patients."
Judge Legrome D. Davis sentenced Higgins and Michael Huggins to nine months in prison and John Walsh to five months. All three have indicated they will appeal their sentences. Another defendant, Richard Bohner, will be sentenced later.
All pleaded guilty to a misdemeanor count related to their roles in the illegal promotion and testing of bone cements used by doctors in spinal surgeries from 2002 to 2004, during which three patients died on the operating table.
Higgins' attorney, Adam Hoffinger, did not respond to an e-mail seeking comment.
Davis noted that Synthes projected it would make about $3,211,301.53 in first-year after-tax profit on an initial investment of $92,804.80, calling the 35:1 ratio "amazing."
Davis cited 24 "facts we find true beyond all reasonable question" as the foundation of the sentence. He dismissed Higgins' contention in a postsentencing motion that his First Amendment rights to free speech were denied.
"The First Amendment does not apply to the conduct for which Higgins is being penalized," Davis wrote. "Higgins' conduct, not his speech, is the gravamen of his offense."