United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex. rel. Louis Scutellaro, Plaintiff,
CAPITOL SUPPLY, INC., Defendant.
MEMORANDUM AND ORDER
A. HOWELL, CHIEF JUDGE.
before the Court is Relator Louis Scuttellaro's Motion
in limine to Exclude References to False Claims Act
Remedies, ECF No. 148, at the trial, scheduled to begin on
October 2, 2017, against the defendant, Capitol
Supply, Inc. for violations of the of the
False Claims Act ("FCA"), 31 U.S.C. §
3730(b)(1), based on allegations that the defendant falsely
certified the products it sold to federal agencies were
manufactured in compliance with the Trade Agreements Act
("TAA"), 19 U.S.C. §§ 2501 et seq., and
Buy American Act ("BAA"), 41 U.S.C. §§
8301 et seq. For the reasons stated below, the
Relator's motion is GRANTED.
moves to exclude during the trial “any direct or
indirect reference, evidence, questioning, or argument,
including by innuendo or otherwise: (1) that damages are
trebled under the [False Claims Act (“FCA”)]; (2)
that statutory civil penalties are assessed for each
violation of the FCA, and (3) that, if successful, Relator
may be awarded a percentage of the United States'
recovery in this action, as well as his expenses,
attorneys' fees, and costs under the FCA.”
Rel.'s Mot. In Limine to Exclude Refs. to FCA
Remedies (“Rel.'s Mot.”), at 1, ECF No. 148.
Relator argues the FCA's remedies are irrelevant to the
issues to be tried and must be excluded under Rules 401 and
402 of the Federal Rules of Evidence. Id. at 2.
Further, Relator avers that under Rule 403, references to
remedies must also be excluded because any such references
would be “more prejudicial than probative and would
only serve to confuse and prejudice the jury, while
potentially causing the jury inappropriately to adjust its
determinations downward.” Id.
defendant's response is twofold. First, the defendant
contends that the bias of a witness is always at issue, and
since Relator has a personal financial interest in the
outcome of the case, the jury should be entitled to be aware
of that interest when evaluating credibility. Def.'s
Opp'n Rel.'s Mot., at 2, ECF No. 154. Second, the
defendant contends that the risk of jury confusion can be
avoided by appropriately instructing the jury. Id.
at 3-4. Neither argument has merit.
Relator makes clear that he has no intention of testifying at
trial. See Reply Supp. Rel.'s Mot., at 3, ECF
No. 159. Since Relator is not testifying, the credibility of
the Relator as a witness is simply not at issue.
“the jury's job in this case will be to determine
the number of violations and fix the amount of actual
damages, if any.” United States ex rel. Miller v.
Bill Harbert Intern. Const., Inc.
(“Miller”), Civ. No. 95-1231 (RCL), 2007 WL
851868 (D.D.C. Mar. 14, 2007); see also United States ex
rel. Laymon v. Bombardier Transp. (Holdings) USA, Inc.,
656 F.Supp.2d 540, 547 (W.D. Pa. 2009) (“The jury's
role in this case will be to determine the number of
violations and fix the amount of actual damages suffered by
the United States, if any.”); United States ex rel.
Schaefer v. Conti Medical Concepts, Inc., Civ. No.
04-400, 2009 WL 5104149, at *8 (W.D. Ky. Dec. 17, 2009)
(excluding testimony “that under the FCA any actual
damages award will be trebled, civil penalties will be
imposed and the restitution award will be used to offset
damages” as “[t]hese issues will not be helpful
to the jury”). “The application of statutory
penalties and trebling of damages are mechanical actions for
the Court alone.” Miller, 2007 WL 851868, at
*2. As Judge Holtzoff of this District put it over sixty
years ago in an analogous context, there is a risk that a
jury could use knowledge of the trebling of damages and
statutory penalties “as an intimation to keep the
damages at a low level, in view of the fact that the amount
allowed by the jury would be multiplied by three.”
Webster Motor Car Co. v. Packard Motor Car Co., 135
F.Supp. 4, 11 (D.D.C. 1955) (Holtzoff, J.), rev'd on
other grounds, 243 F.2d 418 (D.C. Cir. 1957).
“This would have tended to defeat the purpose of the
Act of Congress.” Id. Indeed, as Judge
Lamberth of this Court explained a decade ago, “if a
jury were to reduce its damages assessment because of its
awareness of penalties and trebling, it would thwart
important goals of the FCA” as the “FCA seeks
first to make the government whole, and it is well recognized
that some component of a treble damages award in an FCA case
is compensatory, covering the costs of investigation,
detection, and prosecution, prejudgment interest, the
consequential damages of fraud, and the costs of enticing
relators to bring suit, all of which are implicated in FCA
cases but none of which are otherwise provided for in the
statutory scheme.” Miller, 2007 WL 851868, at
the Supreme Court has strongly implied that a jury in an FCA
case should not be instructed on the possibility of treble
and civil penalties, writing that “under the FCA, the
jury is open to no such temptation [to increase or decrease a
damages award]; if it finds liability, its instruction is to
return a verdict for actual damages, for which the court
alone then determines any multiplier, just as the court alone
sets any separate penalty.” Cook County v. United
States ex rel. Chandler,538 U.S. 119, 131-32 (2003).
Further, the weight of authority in other contexts strongly
establishes a general rule that a jury should not be
instructed as to trebling of damages, attorneys' fees, or
other court-determined awards that might alter a jury's
damages finding. See,e.g., Gulfstream III