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United States v. D.S. Medical, L.L.C.

United States District Court, E.D. Missouri, Southeastern Division

October 24, 2017

UNITED STATES OF AMERICA, ex rel. PAUL CAIRNS, et al., Plaintiff,
v.
D.S. MEDICAL, L.L.C., et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE .

         Upon review of the record and following the final pretrial conference in this case held on the record on October 23, 2017, and for the reasons stated more fully on the open record, the Court sets forth its rulings on the parties' motions in limine, as follows:

         Plaintiff's Motions in Limine

         Motion to Exclude Reference to the Withdrawing of, or Lack of, Certain Expert Witnesses is DENIED in part and GRANTED in part. Mary Kitely will be permitted to testify as a fact witness for Defendants regarding her review of claims data, but no reference shall be made to the fact that she had been retained and then withdrawn as an expert witness in this case by Plaintiff. The parties will have until Monday October 30, 2017, at 9:00 a.m. to submit any written argument and/or authority on whether to permit Kitely to testify by video deposition, as opposed to in person. The motion is granted with respect to evidence that Plaintiff anticipated calling an expert witness on the issue of lack of medical necessity, but ultimately elected not to do so. (ECF No. 313.)

         Motion to Permit Leading Questions by Plaintiff of Defendants and Witnesses Identified with Defendants is DENIED in part and GRANTED in part. Plaintiff may call Defendants and James Fogel as witnesses in its case-in-chief and ask them leading questions. Whether Defendants will be permitted to ask leading questions on cross-examination will depend on the scope of the testimony elicited from these witnesses by Plaintiff. The parties are directed to confer and attempt to reach agreement on the order and presentation of these witnesses. (EFC No. 314.)

         Motion Regarding Witness Statements (Reports of Interviews) is SUBSTANTIALLY DENIED. The motion is denied as moot with respect to the Reports themselves, and denied to the extent that Defendants may ask the preparer of a Report about a witness's prior inconsistent statement contained therein if the witness denies a statement attributed to him in a Report, provided Defendants first show the statement to the witness and ask the witness if he made the statement. However, Defendants may not unnecessarily emphasize that the statement was to an agent. (EFC No. 315.)

         Motion Regarding the Civil Settlement Agreement with Saint Francis Medical Center is DENIED in part and GRANTED in part. The motion is denied as moot as to the fact of the settlement, and granted as to the amount of the settlement, unless Defendants open the door to such evidence. (EFC No. 316.)

         Motion to Exclude Any Reference to Defendants' Criminal Indictment or its Dismissal without Prejudice is DENIED as moot, unless Defendants open the door to such evidence. (EFC No. 317.)

         Motion Regarding the False Claims Act Materiality Requirement (to preclude Defendants from presenting evidence or arguing that a violation of the Anti-Kickback Statute is not material) is DENIED. Plaintiff shall have the burden of establishing materiality, especially as to claims made prior to March 23, 2010. Defendants may then seek to challenge materiality if they have a good faith basis for doing so, and with the understanding that this would open the door to Plaintiff presenting evidence about the purposes of the statutes at issue. (EFC No. 318.)

         Motion Regarding Damages is SUBSTANTIALLY GRANTED. The measure of damages in the case shall generally be the full amount Plaintiff/state paid for each Medicare/Medicaid claim tainted by a kickback, without regard to the fair market value of the goods and services provided. This ruling is subject to further consideration of “outlier payments” and amounts paid due to “comorbidity, ” depending upon the evidence presented at trial. (EFC No. 319.)

         Motion to Exclude Reference to False Claims Act Damages, Penalties, or Collateral Consequences is SUBSTANTIALLY GRANTED. The probative value of this evidence is outweighed by the danger of unfair prejudice. Defendants, however, may cross-exam any Relators who testify, challenging their possible bias due to the fact that they stand to recover a percentage or “millions” if Plaintiff prevails. Defendants may also challenge Relators' bias as competitors. (EFC No. 320.)

         Motion to Exclude Reference to Previously Undisclosed Evidence is DENIED in part and GRANTED in part. Plaintiff may introduce evidence of what the individual Defendants may not have told their counsel, as this would be relevant to an advice-of-counsel or lack of intent defense. Plaintiff can also use this evidence affirmatively as it is relevant to Defendants' state of mind. Counsel may be asked whether knowing undisclosed information would have changed his mind on advice he offered, but he may not offer an explanation as to why. Dr. Fonn will be permitted to testify about treating decision he made to counter evidence by the government regarding comparative utilization of implant devices. Other aspects of the motion are denied as moot, based on Defendants' representations that they did not intend to introduce the evidence at issue. (EFC No. 321.)

         Defendants' Motions in Limine

         Motion to Exclude Advisory Opinions and Other Publications Issued by the Office of the Inspector General and Related Testimony is GRANTED. This evidence is largely irrelevant and has the potential to be unfairly prejudicial to Defendants. If during trial, Plaintiff believes the door was opened to such evidence, it may ...


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