United States of America et al v. Exactech Inc

Filing 255

MEMORANDUM OF OPINION AND ORDER - Before the Court is Defendant Exactech, Inc.'s Motion to Certify Controlling Question of Law Pursuant to 28 U.S.C. § 1292(b). (Doc. 190 ). Defendant asks this Court to certify its Order denying summary judgment (Doc. 185 ) for immediate interlocutory appeal. For the reasons set out within, Defendant's Motion to Certify (Doc. 190 ) is DENIED. Signed by Judge L Scott Coogler on 9/26/2023. (MEB2)

FILED
2023 Sep-26 PM 02:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

UNITED STATES OF AMERICA,
et al., ex rel. BROOKS WALLACE,
ROBERT FARLEY, and MANUEL
FUENTES,
Plaintiffs,
v.
EXACTECH, INC.,
Defendant.

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7:18-cv-01010-LSC

MEMORANDUM OF OPINION AND ORDER
Before the Court is Defendant Exactech, Inc.’s Motion to Certify Controlling
Question of Law Pursuant to 28 U.S.C. § 1292(b). (Doc. 190.) Defendant asks this
Court to certify its Order denying summary judgment (doc. 185) for immediate
interlocutory appeal. Specifically, Defendant requests certification as to whether
liability under the False Claims Act for misbranding violations may be premised on
the theory that Defendant violated its mandatory reporting obligations in violation
of healthcare laws, rendering its Finned Tibia Tray misbranded. (Doc. 190 at 8.)
A district court may certify an order for interlocutory appeal under § 1292(b)
when (1) the order “involves a controlling question of law”; (2) “as to which there
is substantial ground for difference of opinion”; and (3) “an immediate appeal from

the order may materially advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). Section 1292(b) requires that certification “would serve to avoid
a trial or otherwise substantially shorten the litigation.” McFarlin v. Conseco Servs.,
LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). The Eleventh Circuit has stated that
“§ 1292(b) sets a high threshold for certification to prevent piecemeal appeals,” and
that “[m]ost interlocutory orders do not meet this test.” OFS Fitel, LLC v. Epstein,
Becker & Green, P.C., 549 F.3d 1344, 1359 (11th Cir. 2008); see McFarlin, 381
F.3d at 1259 (“Because permitting piecemeal appeals is bad policy, permitting
liberal use of § 1292(b) interlocutory appeals is bad policy.”). Certification under §
1292(b) is “wholly discretionary with both the district court” and the court of
appeals. OFS Fitel, 549 F.3d at 1358.
At the outset, Relators argue that Defendant’s Motion is untimely because it
“waited some forty-four days after the Court’s Memorandum of Opinion to file its
Motion.” (Doc. 193 at 6.) “In the context of requests for interlocutory appeals, timely
requests for certification are calculated in days, not months.” Alabama Aircraft
Indus., Inc. v. Boeing Co., No. 2:11-CV-03577-RDP, 2019 WL 13172407, at *5
(N.D. Ala. Mar. 18, 2019) (internal quotations omitted). Defendant not having
justified its forty-four-day delay in requesting review, the Court agrees that its
Motion is untimely. See Fabricant v. Sears Roebuck & Co., No. 98-1281-CIVNESBITT, 2001 WL 883303 (S.D. Fla. Jan. 29, 2001) (unjustified delay of forty-six

days rendered motion untimely); Morton College Bd. of Trustees v. Town of Cicero,
25 F. Supp. 2d 882, 883 (N.D. Ill. 1998) (thirty-day delay rendered motion
untimely).
Defendant’s Motion also fails to satisfy the requirements of § 1292(b). To
establish a “substantial ground for difference of opinion,” Defendant relies primarily
upon a single district court opinion from within this circuit that “dismissed a qui tam
suit alleging exactly the same misbranding theory” that Defendant now challenges.
(Doc. 190 at 11 (citing United States ex rel. Crocano v. Trividia Health Inc., 615 F.
Supp. 3d 1296 (S.D. Fla. 2022)).) As Relators note, however, the Trividia opinion
expressly distinguishes this case from the one before it. (See doc. 193 at 13–18.)
Thus, the Court is not convinced that a sufficient “difference of opinion as to the
issue exists within the controlling circuit” to constitute a “substantial ground for
difference of opinion.” See Shepard for Est. of Strickland & Davis Int'l, Inc. v.
Strickland & Davis Int'l, Inc., No. 4:02-CV-707-RDP, 2011 WL 13233476, at *2
(N.D. Ala. Jan. 3, 2011).
Finally, certification of the issue likely will not “serve to avoid a trial or
otherwise substantially shorten litigation.” McFarlin, 381 F.3d at 1259. Although
the Court recognizes Defendant’s concern that certification might provide some
clarity and marginally reduce the time and resources needed for trial, that does not
satisfy the standard for certification as explained in McFarlin. Moreover, the Court

is not persuaded that certification could “dispose of the entire action.” (Doc. 190 at
29.) As Relators highlight in their response, resolution of the issue in Defendant’s
favor would still leave Relators with numerous triable issues and claims. (See doc.
193 at 21–22 (describing six other theories upon which their claims proceed).)
For the foregoing reasons, Defendant’s Motion to Certify (doc. 190) is
DENIED.
DONE and ORDERED on September 26, 2023.

_____________________________
L. Scott Coogler
United States District Judge
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