Ameritox, LTD. v. Millennium Laboratories, Inc.

Filing 428

ORDER denying 404 Motion for Reconsideration. Signed by Judge Susan C Bucklew on 4/30/2014. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

AMERITOX, LTD.,
Plaintiff,
v.

Case No.: 8:11-cv-775-T-24-TBM

MILLENNIUM LABORATORIES, INC.,
Defendant.
_________________________________/
ORDER
This cause comes before the Court on Millennium’s Motion for Partial Reconsideration
(Doc. No. 404), which relates to this Court’s April 14, 2014 summary judgment order (Doc. No.
398). Ameritox has filed a response thereto. (Doc. No. 413). As explained below, the motion is
denied.
Ameritox and Millennium are clinical laboratories that screen urine specimens for the
presence of drugs. They are competitors in the industry and have been engaged in extensive
litigation for several years. At issue in Millennium’s motion for reconsideration is this Court’s
conclusion regarding Millennium’s summary judgment arguments about Ameritox’s Lanham
Act false advertising claim, as well as Ameritox’s tortious interference and unfair competition
claims. In its motion for reconsideration, Millennium explains that it moved for summary
judgment on these claims to the extent that these claims were based on Millennium representing
that, prior to April 1, 2010, it was proper for doctors to bill multiple times for each drug class
tested in a single urine testing device (by billing multiple units of CMS code 80101QW).
In response, Ameritox clarifies that its Lanham Act false advertising claim is not based

on this representation.1 Therefore, Millennium is not entitled to summary judgment on
Ameritox’s Lanham Act false advertising claim, because it is not based on this representation.
Furthermore, Ameritox clarifies that its tortious interference and unfair competition
claims are not based on this representation; instead, these claims are based on Millennium’s
alleged conduct regarding its revenue generating scheme to induce physician referrals. As part
of this scheme, Millennium allegedly taught doctors how to maximize their profits by exploiting
POC testing reimbursements. Millennium encouraged physicians to test patients as frequently as
possible, not because of medical necessity, but as a revenue generating process. Thus, Ameritox
takes issue with Millennium’s encouragement of doctors to run unnecessary tests solely to
generate revenue. This is completely different than the theory on which Millennium sought
summary judgment. As such, Millennium is not entitled to summary judgment on Ameritox’s
tortious interference and unfair competition claims.
Accordingly, it is ORDERED AND ADJUDGED that Millennium’s Motion for Partial
Reconsideration (Doc. No. 404) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 30th day of April, 2014.

Copies to: All parties and Counsel of Record

1

In fact, Ameritox clarified that its Lanham Act false advertising claim is not based on
any of the following Improper Billing Representations, which consist of the billing manual, the
gross revenue chart, and the encouragement regarding billing modifiers.
2