Fowler et al v. Evercare Hospice, Inc. et al

Filing 140

ORDER by Magistrate Judge Nina Y. Wang on 12/28/15. Experts due by 4/8/2016; Rebuttal experts due by 9/8/2016; Fact and expert discovery due by 12/31/2016; Dispositive and Daubert Motions due by 1/31/2017; and A Final Pretrial Conference is set for 3/24/2017 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. A proposed Final Pretrial Order shall be prepared and submitted no later than seven days before the conference. A Word version of the proposed order will be submitted concurrently with its filing to [e-mail]. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00642-PAB-NYW
(Consolidated with Civil Action No. 14-cv-1647-PAB)
UNITED STATES OF AMERICA, ex rel., TERRY LEE FOWLER, and LYSSA TOWL,
Plaintiff,
v.
EVERCARE HOSPICE, INC., n/k/a OPTUM PALLIATIVE AND HOSPICE CARE, a
Delaware corporation,
OVATIONS, INC., a Delaware corporation, and
OPTUMHEALTH, LLC, a Delaware limited liability corporation,
Defendants.
______________________________________________________________________________
Civil Action No. 14-cv-1647-PAB
UNITED STATES OF AMERICA ex rel. SHARLENE RICE,
Plaintiff,
v.
EVERCARE HOSPICE, INC.,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter was before the court on a Status Conference held on December 17, 2015.
[#139].

This case was initially filed on March 15, 2011, and the court permitted several

extensions for United States to determine whether it would intervene. On August 25, 2014, the
United States filed a Notice of Election to Partially Intervene and Partially Decline to Intervene.
[#34]. The United States indicated that it intended to intervene on allegations that Defendant

Evercare Hospice, Inc. (“Evercare”) submitted false Medicare hospice claims for patients who
were ineligible for hospice benefits because they were not terminally ill, but declined to
intervene in all other allegations. [Id.] On November 10, 2014, the United States filed a
Consolidated Complaint in Intervention. [#46]. In that Consolidated Complaint, the United
States identified hospice programs in 13 states at issue: Alabama, Arizona, California, Colorado,
Georgia, Illinois, Ohio, Maryland, Massachusetts, Missouri, Pennsylvania, Texas, and Virginia.
[Id. at ¶ 8]. The original Consolidated Complaint alleges that Defendants knowingly presented
false claims for patients who were not terminally ill, and therefore, were paid Medicare benefits
to which Evercare were not entitled. [Id. at 52]. The United States also alleged that it is entitled
to recover payments to Defendants by mistake and through unjust enrichment. [#46 at 53-54]. A
Second Amended Complaint was filed by the United States on February 24, 2015, in which the
only remaining claim is one for submission of false claims against Evercare, now known as
Defendants Ovations, Inc. and OptumHealth Holdings, LLC, the successors-in-interest to
Evercare. [#86].
In anticipation of the December 17 Status Conference, the Parties submitted a Joint Status
Report, in which they reported that there were no discovery disputes, but “[d]espite its extensive
efforts, due to the complexity of the medical review, the size and number of records under
review, the time needed to complete review of each file, the recent receipt of additional medical
records, and the time needed to prepare a complete a complete and accurate report, the United
States will require additional time to complete its medical review and to comply with Rule
26(a)(2).” [#134 at 3]. During the Status Conference, counsel for the United States represented
that the United States intends to reduce the number of sites at issue from 13 to four, but even
with that reduction, due to some unexpected issues with its medical expert, the United States

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would be unable to comply with its January 8, 2016 deadline for the designation of experts and
disclosure of a report pursuant to Rule 26(a)(2)(B). [#139, #119 at 21]. The United States
further explained that it was utilizing a single expert, to ensure consistency of review across files.
The United States, therefore, made an oral motion to extend the time for its designation of
experts and disclosure of expert reports up to and including May 24, 2016, the date originally
requested by the United States. [#139, #119 at 21]. Defendants did not oppose the requested
extension, so long as any extension granted to the United States was concomitant with an
extension for Defendants.
The court accepts the representations of counsel for the United States made as officers of
the court as true, but must balance the unanticipated difficulties encountered and articulated by
the United States, with the fact that the case has been pending now for almost five years since its
inception, over a year since the United States filed its Consolidated Complaint, and almost a year
since the United States filed its Second Amended Complaint. Although the Parties assure the
court that discovery to date has allowed the Parties to narrow the scope of the case, the Parties’
proposed schedule is one where this case will not be ready for a Final Pretrial Conference until at
least May 2017 – more than six years after its initial filing—and given the court’s docket and the
Parties’ anticipated length of a 12-week trial, it is not unreasonable to conclude that this action, if
it progresses at the pace requested by the Parties, will not be trial-ready until 2018. That simply
cannot be what is anticipated by Rule 1 of the Federal Rules of Civil Procedure.
Accordingly, the court will grant a limited extension of time for the United States to
designate its expert and propound its required expert report, and will provide the same extension
of time for Defendants to provide for rebuttal reports. Therefore, IT IS ORDERED that:
(1)

The Parties shall designate all experts and provide opposing counsel and any pro

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se parties with all information specified in Fed. R. Civ. P. 26(a)(2) for all experts by April 8,
2016;
(2)

The Parties shall designate all rebuttal experts and provide opposing counsel and

any pro se pro se parties with all information specified in Fed. R. Civ. P. 26(a)(2) for all experts
by September 8, 2016;
(3)

All fact and expert discovery, including but not limited to depositions of experts

who provide a report, will be concluded December 31, 2016;
(4)

All dispositive motions and Daubert motions will be filed no later than January

31, 2017; and
(5)

A Final Pretrial Conference will be held on March 24, 2017 at 10:00 a.m. A

proposed Final Pretrial Order shall be prepared by the Parties and submitted to the court no later
than seven (7) days before the Final Pretrial Conference. A Word version of the proposed Final
Pretrial

Order

will

be

submitted

concurrently

with

its

filing

to

[e-mail].
All other provisions of the Amended Supplemental Scheduling Order entered on
September 14, 2015 [#119] not specifically revised by this Order remain operative.

DATED: December 28, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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