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United States ex rel Pogue v. Diabetes Treatment Centers of America

September 19, 2008

UNITED STATES EX REL. A. SCOTT POGUE, PLAINTIFF
v.
DIABETES TREATMENT CENTERS OF AMERICA, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Signed by Chief Judge Royce C. Lamberth

MEMORANDUM OPINION

On July 21, 2008, this Court issued a Memorandum Opinion [196] and Order [197] granting in part and denying in part defendant Diabetes Treatment Centers of America, Inc.'s ("DTCA") motion [167] for summary judgment. Now before the Court comes defendant's motions [198] to reopen fact discovery to depose Frank Cipolloni and [199] to reconsider summary judgment order or alternatively [200] to certify summary judgment order for appeal. Upon full consideration of the motions, relator A. Scott Pogue's opposition briefs,*fn1 the replies, the entire record herein, and applicable law, this Court finds, for the reasons set forth below, that defendant's motions will be DENIED.

I. MOTION TO RECONSIDER

A. Legal Standard: Reconsideration Under Rule 54(b)

Federal Rule of Civil Procedure 54(b) governs reconsideration of orders that do not constitute final judgments in a case. Cobell v. Norton, 224 F.R.D. 266, 271 (D.D.C. 2004). (Lamberth, J.) (citations omitted).

Importantly, the standard for reconsideration of interlocutory orders under Rule 54(b) is distinct from the standard applicable to motions for reconsideration of final judgments. The precise standard governing Rule 54(b) reconsideration is unsettled in our Circuit, but it is clear that "courts have more flexibility in applying Rule 54(b)" than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b). Moore v. Hartman, 332 F. Supp. 2d 252, 256 (D.D.C. 2004). For example, our Court has held that Rule 54(b) reconsideration may be granted "as justice requires." APCC Servs., Inc. v. AT & T Corp., 281 F. Supp. 2d 41, 44 (D.D.C. 2003); Campbell v. DOJ, 231 F. Supp. 2d 1, 7 (D.D.C. 2002) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)); M.K. v. Tenet, 196 F. Supp. 2d 8, 12 (D.D.C. 2001).

Id. at 272. This Court, noting that it retains "broad discretion to grant or deny a motion for reconsideration," will adhere to the "as justice requires" standard and ask "whether reconsideration is necessary under the relevant circumstances." Id. at 272--73; see Scott v. District of Columbia, 246 F.R.D. 49, 51 (D.D.C. 2007) (applying "as justice requires" standard and noting that trial courts have discretion in determining whether to grant reconsideration).

B. The Court Will Deny Reconsideration

Defendant seeks reconsideration of a portion of the Court's decision that denied summary judgment as to the 187 DTCA medical directors whose patients' Medicare claims do not appear on the data produced by CMS official Frank Cipolloni.*fn2 (See Mot. Recons. at 2.) DTCA's challenge relates to the first element of an Anti-Kickback Statute ("AKS") violation, which is also the first element of False Claims Act ("FCA") liability: that the defendant must have submitted a claim to the government. (See Mem. Op. [196] at 11 (citing United States v. Miles, 360 F.3d 472, 479--80 (5th Cir. 2004) (setting forth AKS elements)); United States ex rel. Hockett v. Columbia/HCA Healthcare Corp., 498 F. Supp. 2d 25, 57 (D.D.C. 2007) (Lamberth, J.) (setting forth FCA elements). Defendant's motion to reconsider neither questions the Court's decision that relators may pursue AKS violations under the FCA nor the Court's analysis as to the remaining two elements of an AKS violation: (1) remuneration to physicians with a purpose to induce referrals and (2) knowledge.

According to defendant's theory, summary judgment should be granted anytime there is not direct evidence as to a specific physician's claim submissions. (See Def.'s Reply [208] at 2.) Under the circumstances presented, this Court did not reach that conclusion. As explained below, DTCA offers nothing new that causes the Court to question its previous ruling.

The Court allowed circumstantial evidence of claim submission to defeat defendant's summary judgment motion. Specifically, the direct claim evidence relating to 89 of 276 medical directors was "sufficient evidence of claim submission in general" for the Court to allow claims against the remaining 187 DTCA medical directors to withstand summary judgment. (See Mem. Op. [196] at 13--14 (citing United States ex rel. El-Amin v. George Washington Univ., 522 F. Supp. 2d 135, 141--42 (D.D.C. 2007).) Without pointing to authority contrary to the Court's conclusion, defendant simply argues that the Court was wrong to find "clear guidance" in El Amin.*fn3

In El-Amin, the "precise question raised" was "whether [relators] may proceed without having the actual [Medicare] claim forms." See 522 F. Supp. 2d at 142. Rather than claim forms, relators there possessed a "mountain of billing documents" that allegedly demonstrated defendant's filing of Medicare claims. See id. These documents served as circumstantial evidence that claims were submitted to Medicare; they were sufficient to withstand defendant's summary judgment motion. See id. at 143 (citing United States v. Williams, 216 F.3d 1099, 1103 (D.C. Cir. 2000) (noting that "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence")). As DTCA points out, in ElAmin, there was at least some claim evidence as to each of the fifteen physicians in question. (See Mot. Recons. at 3 (citing El-Amin, 522 F. Supp. 2d at 137--38).) Thus, while El-Amin clearly stands for the propositions that circumstantial evidence of claim submission may create a genuine issue of material fact and that inability to produce the actual claim form is not determinative, see 522 F. Supp. 2dat 143, that case did not present the precise issue of whether evidence of claim submission as to a subset of physicians can create a genuine issue of material fact as to a related subset of physicians. In denying summary judgment, this Court answered-and continues to answer-that question in the affirmative.*fn4 This conclusion is bolstered by defendant's own admission that its medical directors had a practice of referring patients to DTCA. In defendant's own words, "medical directors generally preferred admitting patients to the diabetes treatment center . . . ." (Mot. Summ. J. at 34.) In fact, one of defendant's theories is that "DTCA expected medical directors to admit their patients to the center because they believed the center was the best place for the patients." (Id. at 35.) Such admissions support the Court's conclusion that summary judgment was inappropriate as to claims from the 186 medical directors at issue.

For the above reasons, the Court, in its discretion, will deny DTCA's ...


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