Fabula v. American Medical Response, Inc.

Filing 138

ORDER. The Court's rulings on the parties' discovery disputes are stated in the attached document. In light of these rulings, the 131 motion for an extension of the deadlines in the Second Amended Scheduling Order is GRANTED IN PART AND DENIED IN PART. The Phase I discovery deadline shall be extended by 30 days to October 12, 2018. Defendant shall then have 30 days to file any dispositive motion based on Phase I discovery (due by November 12, 2018). Signed by Judge Michael P. Shea on 9/12/2018. (Attachments: (1) Plaintiff-Relator's Discovery Letter and Addendum; (2) Defendant's Discovery Letter) (Guevremont, Nathan)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
United States ex rel.
PAUL FABULA, and PAUL FABULA, Individually

No. 3:12-cv-921 (MPS)

Plaintiff-Relator
v.
AMERICAN MEDICAL RESPONSE, INC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff-Relator Paul Fabula, brings this action under the False Claims Act (“FCA”), 31
U.S.C. § 3729 et seq., against Defendant American Medical Response, Inc. (“AMR”). Pending
before the Court is Plaintiff-Relator’s motion for extension of the deadlines set out in the Second
Amended Scheduling Order (ECF No. 131) and a discovery dispute between the parties. I attach
to this ruling the correspondence and discovery requests received from the parties regarding their
dispute. On September 5, 2018 I held a telephonic oral argument concerning the dispute. This
ruling resolves the issues raised in the parties’ correspondence and those raised in the telephonic
oral argument.
I.

BACKGROUND
A.

Procedural History

On June 22, 2012, Fabula filed this qui tam action as a relator on behalf of the United
States. (ECF No. 1.) The United States declined to intervene in 2013. (ECF No. 18.) Fabula filed
his second amended complaint (“SAC”), bringing a claim on behalf of the United States under the
False Claims Act, 31 U.S.C. §§ 3729(a)(1) and (a)(2) (“FCA”), and a claim on his own behalf for

retaliation in violation of 31 U.S.C. § 3730(h). The Court dismissed the FCA claim and the
retaliation claim, but stayed its decision to give Chorches, the trustee of Fabula’s bankruptcy estate,
a chance to pursue the claims. (ECF No. 67.) Chorches pursued the FCA claim by timely filing the
Third Amended Complaint (“TAC”), which the Court later dismissed as well. (ECF No. 82.) In
July 2017, the Second Circuit reversed the dismissal of the claims, holding that the SAC stated a
retaliation claim and that the TAC stated a claim under the FCA. See United States ex rel. Chorches
v. Am. Med. Response, Inc., 865 F.3d 71 (2d Cir. 2017). Fabula subsequently moved to file a Fourth
Amended Complaint (FAC), combining the retaliation claim from the SAC with the FCA claim
from the TAC and substituting Fabula for Chorches given that his bankruptcy proceeding had
concluded. (ECF No. 105.). The Court granted the motion on January 3, 2018. (ECF No. 115.)
B.

Fabula’s Claims

Fabula claims that the Defendant violated the FCA by seeking reimbursement from
Medicare and Medicaid for ambulance transports that it certified were medically necessary
despite knowledge that they were not. (ECF No. 105 ¶ 14.)1 Fabula alleges that, as an employee
of AMR, he was forced to modify Patient Care Reports (“PCRs”) based on handwritten notes
given to him and his co-workers by supervisors. (Id. at ¶ 24.) He claims that the changes were
required in order to fraudulently convert non-reimbursable trips into reimbursable trips under
Medicare and Medicaid. (Id. ¶ 32.) The FAC lists several specific ambulance runs for which
Fabula was instructed to revise his PCRs in order to obtain payment from Medicare or Medicaid.
(ECF No. 105 ¶¶ 88-94, 97, 99, 100.) The FAC additionally alleges broader schemes aimed at
increasing reimbursements from Medicare and Medicaid. For example, Fabula claims that an

The claims are taken from Fabula’s Fourth Amended Complaint. (ECF No. 105.) The FAC did not change the
substance of the claims from the SAC or the TAC. (ECF No. 115.) The reasoning behind the Second Circuit’s
opinion in this case thus applies with full force here.
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electronic filing system required “that the box for ‘paramedic assessment’ had to be checked for
every run, and that no PCR could go through the system and be processed without checking
Advanced Life Support . . . assessment.” (Id. at ¶ 133.). These designations would trigger
reimbursement for an additional $1,200 to $1,500 from Medicare or Medicaid per ambulance
run. (Id. ¶¶ 134-136.) Similarly, Fabula alleges that the computerized forms would automatically
insert “Yes” in the field asking whether patients were “bed confined” regardless of whether that
designation was accurate (Id. ¶ 139.) This made it more likely that the ambulance trip would be
reimbursable. (Id. ¶ 65.)
Fabula’s retaliation claim focuses on a specific PCR. He alleges that he was ordered to
make changes to a PCR for an ambulance run in early December 2011 (id. ¶ 50), but that he
refused, (Id. ¶ 59, 70). AMR allegedly responded by threatening him with termination (id. ¶ 72),
and later suspended him and refused to allow him to return to work, (Id. ¶ 73). Fabula alleges
that this indefinite suspension amounted to a de facto termination of his employment. (Id. at ¶
74.)
II.

DISCOVERY DISPUTE
Following remand from the Second Circuit, the Court ordered the parties to file a revised

report under Local Rule 26(f). (ECF No. 96.) In their report, the parties jointly requested phased
discovery as the Second Circuit had suggested in its opinion in this case. (ECF No. 99 at 7)
(citing Am. Med. Response, Inc., 865 F.3d at 88 n.13 (“Where a qui tam relator identifies
representative examples of false claims or, as here, makes allegations leading to a strong
inference that specific false claims were submitted, defendants could initially be required to
provide discovery only with respect to the cases identified in the complaint.”)). The Court
adopted the parties’ request in its scheduling order. (ECF No. 120.) As a result, the Court ordered

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that discovery would take place in two phases, with Phase I including only “(1) the specific
claims and ambulance runs identified in the operative Complaint; (2) Fabula’s retaliation claim;
and (3) whether Mr. Fabula is judicially estopped from recovering on the False Claims Act
claims against Defendant.” (Id.)
Fabula takes issue with AMR’s responses to 10 discovery requests based on AMR’s
understanding of the scope of Phase I.2 Fabula also argues that AMR improperly limited its
production and responses to requests related to the retaliation claim to a narrow set of ambulance
runs, contrary to the Court’s order.3
A.

Scope of Phase I Discovery

The parties dispute the scope of the phrase “specific claims and ambulance runs” in the
scheduling order. (ECF No. 120.) AMR argues that the Phase I discovery is limited to the
individual instances in which Fabula was ordered to falsify a PCR in connection with an
ambulance run described in the complaint (the “Subject Transports”). Fabula contends that the
phrase “specific claims and ambulance runs” also encompasses the broader schemes intended to
increase the proportion of Medicare-reimbursable ambulance runs or the amount of
reimbursement for each run. (E.g., ECF No. 105 ¶ 134-136; 139.) I adopt AMR’s view. The
footnote in the Second Circuit’s opinion on which this discovery plan was based suggested
limiting discovery to specific “cases,” a term the court used to refer to particular ambulance runs
and the requests for payment associated with those runs. See Am. Med. Response, Inc., 865 F.3d
at 87 (“While invoice numbers and the dates of their submission would undoubtedly have put

Fabula specifically contests AMR’s responses to Relator’s First Set of Interrogatories Nos. 3 and 4; Relator’s First
Set of Requests for Production of Documents Nos. 11 and 12; Relator’s Second Set of Interrogatories Nos. 2 and 3;
and Relator’s Second Set of Requests for Production of Documents Nos. 15, 17, 21, and 22.
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Fabula takes issue with AMR’s responses to Plaintiff’s First Set of Interrogatories Nos. 1-6; Plaintiff’s First
Request for Production of Documents Nos. 7-10, 12, and 18; Relator’s First Request for Production of Documents
Nos. 14 and 15; and Plaintiff’s First Request for Production of Documents Nos. 17 and 18.
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AMR on notice of specific claims allegedly submitted to the government, so do details provided
in the TAC (such as dates of runs, patient names, actual reasons for the transport, and the
information entered into PCRs) with respect to specific runs for which false claims were
submitted . . . . [B]y alleging with particularity AMR’s scheme to falsify PCRs in order to
qualify runs as medically necessary, and identifying particular cases in which that scheme was
carried out, Fabula [has satisfied Rule 9(b)]”). Although language in the parties’ conference
report used the word “claims” instead of “cases,” I find that the most reasonable reading of that
term in this context is the meaning ascribed by the FCA. See 31 U.S.C. ¶ 3729(b)(2) (defining
“claims” in the FCA as a “request or demand . . . for money or property”).
The parties also dispute the scope of discovery in Phase I for Fabula’s retaliation claims.
Fabula suggests that he was terminated because he opposed AMR’s broad scheme to defraud
Medicaid and Medicare. He thus contends that he should be allowed discovery on the entire
scheme. As alleged in the complaint, though, his retaliation claim is relatively narrow: he claims
that he was terminated because he refused to falsify a specific PCR from December 2011. (ECF
No. 105 ¶¶ 50-75.) Indeed, the Second Circuit held that Fabula successfully pled a claim for
retaliation by alleging that he was terminated for “refusing to falsify a single PCR.” Am. Med.
Response, Inc., 865 F.3d at 96. In Phase I, then, discovery relating to the retaliation claim is
properly limited to the events surrounding Mr. Fabula’s refusal to alter the form and the
subsequent decision to terminate his employment.
With these general clarifications of the scope of Phase I discovery in mind, I turn to the
parties’ specific disputes.
1.

Relator’s First Set of Interrogatories Nos. 3 and 4

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AMR’s response to No. 3 is clear and complete. Fabula asks whether AMR used software
that automatically indicated a paramedic assessment had been conducted or required entry of
“bed-confined” to complete PCRs. AMR denies that the software it used had those
characteristics. Interrogatory No. 4 is conditional, requiring a response only if the answer to No.
3 is affirmative. Given AMR’s denial to No. 3, it has no obligation to reply further to No. 4.
Fabula does not indicate how these responses are deficient.
2.

Relator’s First Set of Requests for Production Nos. 11 and 12

AMR’s objections on the basis that Request Nos. 11 and 12 exceed the scope of
discovery for Phase I are SUSTAINED. Fabula requests documents relating to “paramedic
assessment” or “bed-confined” software features and any review or audit of claims submitted for
reimbursement that used those features. As noted, Phase I discovery is limited to the specific
ambulance runs (“Subject Transports”) alleged in the complaint as well as retaliation and judicial
estoppel. The software features are relevant only to the broader scheme that Fabula alleges and
do not pertain directly to the particular ambulance runs identified in the FAC. As a result,
although AMR has indicated that it will produce certain training documents in response to
Request for Production No. 11, it has no obligation during Phase I to turn over any documents in
response to Request for Production Nos. 11 or 12. Further, Request for Production No. 12 is
conditioned on an affirmative response to Interrogatory No. 4, to which AMR responded in the
negative.
3.

Relator’s Second Set of Interrogatories for Production Nos. 2 and 3

AMR’s objections on the basis that Request Nos. 2 and 3 exceed the scope of Phase I are
SUSTAINED. Fabula seeks identification of “all PCRs for AMR Ambulance Transports in
Connecticut that were amended, corrected or rewritten in 2010 and 2011.” AMR also requests

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identification of all PCRs that Mr. Fabula was instructed to alter. Those requests exceed the
limits set out in the Court’s order. Phase I is limited to Subject Transports, retaliation, and
judicial estoppel. AMR meets its obligation by providing PCRs for the Subject Transports
alleged with specificity in the complaint. As noted, the retaliation claim is limited to a specific
PCR relating to an ambulance run in December 2011, and the FAC indicates that Fabula refused
to alter that PCR.
4.

Relator’s Second Request for Product Nos. 15, 17, 21, and 22

AMR’s objections on the basis that Request Nos. 15, 17, 21, and 22 exceed the scope of
Phase I are SUSTAINED. Each of these requests is relevant only to the broader scheme Fabula
alleges, but they are not relevant to the Subject Transports. Fabula may be entitled to discovery
on these issues in Phase II discovery.
5.

Plaintiff’s First Set of Interrogatories Nos. 1–6; Plaintiff’s First Set of
Requests for Production Nos. 7–10 and 12; Relator’s First set of
Requests for Production Nos. 14 and 15

Defendant’s objections to Plaintiff’s Interrogatories Nos. 1–6 and Relator’s Requests for
Production Nos. 14 and 15 on the basis that the requests exceed the scope of Phase I are
SUSTAINED. These requests seek information related to AMR’s alleged general practice of
changing PCRs to obtain reimbursement from Medicare and Medicaid. This goes well beyond
both the Subject Transports and the communications about the December 2011 PCR that are the
subject of the retaliation claim.
Defendant’s objections to Plaintiff’s Requests for Production Nos. 7–10 and 12 are
SUSTAINED for the same reason. These requests ask AMR to turn over documents related to
Interrogatories Nos. 1–6.

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6.

Plaintiff’s First Request for Production of Documents Nos. 17 and 18

Defendant’s objections to Plaintiff’s Requests for Production Nos. 17 and 18 are
SUSTAINED. The requests are unduly burdensome and exceed the scope of Phase I. Phase I
discovery is limited to the Subject Transports and the communications concerning the specific
PCR that Fabula allegedly refused to alter. AMR meets its obligation by producing the PCRs
related to the Subject Transports and the PCR that Fabula was allegedly ordered to falsify (and
related communications, see FAC ¶¶ 50-75). AMR is not obligated in this phase to provide
broader statistics about billing rates across its Connecticut branches or alleged efforts to increase
the proportion of ambulance runs reimbursable by Medicare or Medicaid.
III.

MOTION FOR EXTENSION OF DEADLINES UNDER SECOND AMENDED

SCHEDULING ORDER (ECF NO. 127)
The motion for an extension of the deadlines in the Second Amended Scheduling Order is
GRANTED IN PART AND DENIED IN PART. The Phase I discovery deadline shall be
extended by 30 days to October 12, 2018. Defendant shall then have 30 days to file any
dispositive motion based on Phase I discovery (due by November 12, 2018).
I note that I have no view on the merits of any potential motion for summary judgment in
this case. As discussed during the recent oral argument, however, the limited discovery available
in Phase I will leave Defendant with a heavy burden. See Fed. R. Civ. P. 56(d); Hellstrom v. U.S.
Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) (The nonmoving party must have had
the opportunity to discover information that is essential to his opposition to the motion for
summary judgment. . . . Only in the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct discovery.”) (internal citations
and quotations omitted).

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IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
September 12, 2018

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