United States of America et al v. Somina, Inc., et al.

Filing 188

ORDER resolving relator Nicole O'Neill's Motion for Evidentiary Sanctions for Failure to Obey a Court Order, documents 169 and 171 . Order signed by Magistrate Judge Erica P. Grosjean on 6/29/2021. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES and the STATE OF
CALIFORNIA ex rel. NICOLLE
O’NEILL,

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Plaintiffs/Relator,

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v.

Case No. 1:15-cv-433-DAD-EPG

ORDER RESOLVING RELATOR NICOLLE
O’NEILL’S MOTION FOR EVIDENTIARY
SANCTIONS FOR FAILURE TO OBEY A
COURT ORDER

SOMNIA, INC. et al.,
(ECF Nos. 169, 171)

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Defendants.

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After informally addressing a discovery dispute between the parties, the Court granted

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Plaintiff permission to file a discovery motion. (ECF No. 157). On May 20, 2021, Plaintiff filed a

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motion for evidentiary sanctions for failure to obey a court order. (ECF No. 169, see ECF No.

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171).
On June 10, 2021, the Court addressed the motion in detail with the parties at a telephonic

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motion conference. (ECF No. 176). For the reasons stated on the record, the Court declined to

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issue sanctions as requested by Plaintiff but permitted Plaintiff to supplement her motion to

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request alternative forms of relief before the scheduled June 28, 2021 status conference. (Id.).

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Plaintiff filed a supplement to her motion requesting alternative sanctions (ECF No. 180) and

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Defendants filed a response (ECF No. 186).

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Before the status conference occurred, the parties filed a stipulation resolving their

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discovery dispute. (ECF No. 185). During the status conference, the parties confirmed their

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resolution of the dispute, agreeing that the terms of the settlement resolve Plaintiff’s motion.
Accordingly, in light of the parties’ stipulation (ECF No. 185) IT IS ORDERED as

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follows:
1. Pursuant to the terms of the parties’ stipulation (ECF No. 185):

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a. Neither Relator nor Defendants will complete any expert analysis and/or audit of

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the Sample of Calendar Days for any purpose in this litigation.

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b. The Sample of Patient Encounters cannot be used to derive alleged damages

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and/or penalties stemming from deficiencies related solely to concurrency pursuant

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to 42 C.F.R. § 415.110(a)(2). Thus, since the Parties will not be completing any

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expert analysis and/or audit of the Sample of Calendar Days, the Parties agree that

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any alleged damages and/or penalties in this matter will not be based on alleged

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deficiencies related solely to concurrency pursuant to 42 C.F.R. § 415.110(a)(2),

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although evidence relating to concurrency may be presented for purposes of

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liability.

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c. Neither Relator nor Defendants will object to the opposing Party’s expert analysis

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and/or results related to the Sample of Patient Encounters as an inappropriate

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method of identifying the number and dollar amount of alleged false claims or of

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analyzing alleged damages and/or penalties in this matter because the opposing

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Party did not complete an expert analysis and/or audit of the Sample of Calendar

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Days. The Party’s expert analyses and/or audits of the Sample of Patient

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Encounters may be used for the purposes agreed upon for that sample in the

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Parties’ Stipulation Regarding Sampling Protocol.

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2. This Clerk of the Court shall terminate Plaintiff’s motion for evidentiary sanctions for
failure to obey a court order on the docket. (ECF No. 169, see ECF No. 171).

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IT IS SO ORDERED.
Dated:

June 29, 2021

/s/
UNITED STATES MAGISTRATE JUDGE

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