Judges refuses to dismiss case against convicted doctor in pain-pill case

Published: Tuesday, Dec. 13 2011 5:41 p.m. MST

Dewey MacKay enters federal court in Salt Lake City on Wednesday, July 20, 2011.

Kerry Jensen, Deseret News

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SALT LAKE CITY — A federal judge refused Tuesday to dismiss the case in which a Brigham City doctor was convicted of illegally dispensing painkillers.

U.S. District Judge Dee Benson also denied Dewey C. MacKay's motion for acquittal on two charges related to the death of one his patients, saying he must defer to the jury's guilty verdict.

MacKay, 64, was convicted in August of 40 counts of illegally prescribing pain medication, including two that resulted in the death of a 55-year-old man. The jury acquitted him of 44 other counts. MacKay faces a 20-year minimum mandatory prison sentence on the counts related to the death and as many as 15 years on the other counts. He is scheduled to be sentenced Dec. 19.

Near the end of the trial, MacKay's defense attorney Peter Stirba sought a dismissal, claiming federal prosecutor Michael Kennedy lied during closing arguments.

Benson ruled that although Kennedy's statement might be construed as false, it came during a closing argument which reflects a certain amount of speculation and interpretation of the evidence. He said Kennedy didn't intentionally misrepresent the facts and the statement was immaterial in light of the other evidence.

MacKay unsuccessfully argued in another motion that there was insufficient evidence to convict him of causing the death of David Wirick, an ATK scientist who underwent three back surgeries and suffered chronic pain. MacKay treated him for seven years.

MacKay at one point placed Wirick on his "Do Not See" list because he was known to binge on painkillers and had overdosed on methadone. MacKay agreed that another doctor should be Wirick's only source of medication, but when Wirick came seeking painkillers, MacKay prescribed Lortab and Percocet. Wirick died three days later.

Although there was conflicting evidence regarding the cause of death, the jury could conclude beyond a reasonable doubt that oxycodone and hydrocodone caused Wirick’s death, Benson wrote.

The judge also wrote that "based upon the evidence, a reasonable jury could find beyond a reasonable doubt the Mr. Wirick’s death was reasonably foreseeable."

E-mail: romboy@desnews.com, Twitter: dennisromboy

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