Graves vs Plaza Medical Centers, et al.

Filing 876

OMNIBUS ORDER: granting in part and denying in part 708 Motion in Limine; granting in part and denying in part 709 Motion in Limine; granting in part and denying in part 711 Motion in Limine; denying 712 Motion to Strike ; denying 712 Motion in Limine; granting in part and denying in part 716 Motion in Limine; denying as moot 717 Motion to Strike ; granting 719 Motion in Limine; granting in part and denying in part 720 Motion in Limine; granting 721 Motion in Limine AND striking Dr. Weine's untimely supplemental expert report; granting in part and denying in part 724 Motion in Limine; denying 725 Motion in Limine; granting in part and denying in part 728 Motion in Limine. See Omnibus Order for details. Signed by Magistrate Judge John J. O'Sullivan on 9/6/2017. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23382-CIV-MORENO/O’SULLIVAN

OLIVIA GRAVES, on behalf of herself
and the UNITED STATES OF AMERICA,
Plaintiff/Relator,
v.
PLAZA MEDICAL CENTERS, CORP.,
HUMANA, INC., and MICHAEL CAVANAUGH,
Defendants.
/
OMNIBUS ORDER
THIS MATTER is before the Court on all pending motions in limine and motions
to strike expert witnesses which were considered during a hearing on August 25, 2017.
Before addressing the individual motions to strike expert witnesses, the undersigned
will address the applicable standard of review.
Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993), and Rule 702 of
the Federal Rules of Evidence, the Court “serve[s] as a gatekeeper to the admission of
scientific evidence.” Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340
(11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993)); McCorvey v. Baxter Healthcare
Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir.
2005). To determine the admissibility of expert testimony under Rule 702, the Court must
undertake the following three-part inquiry:
(1) [T]he expert is qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry mandated
by Daubert; and (3) the testimony assists the trier of fact, through the application

of scientific, technical, or specialized expertise, to understand evidence or to
determine a fact in issue.
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems., Inc., 158
F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation omitted)). The
Eleventh Circuit cautioned that although some overlap among the inquiries regarding expert
qualifications, reliability and helpfulness exist, “these are distinct concepts that courts and
litigants must take care not to conflate.” Id. at 1341.
To determine reliability, the court considers:
(1) whether the expert’s theory can be and has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) the known and
potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.
Id. (citing McCorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94)). “‘A district court’s
gatekeeper role ‘is not intended to supplant the adversary system or the role of the jury.’” Id.
(citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d
1300, 1311 (11th Cir. 1999)). “Quite the contrary, ‘[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’” Id. (quoting Daubert, 509 U.S.
at 596). The Eleventh Circuit and this Court have excluded expert testimony on subjects
outside the expert’s qualifications, while allowing testimony on subjects about which the expert
is qualified. Lebron v. Sec’y of the Fla. Dep’t of Children and Families, 772 F.3d 1352, 1368-69
(11th Cir. 2014) (“Expertise in one filed does not qualify a witness to testify about others.”);
Sanchez-Knutson v. Ford Motor Co., 181 F. Supp. 3d 988, 994 (S.D. Fla. 2016) (allowing a
mechanical engineer with experience in the area of vehicle design and manufacturing to testify
regarding air/gas leakage as well as carbon monoxide accumulation in the vehicle in a products
liability action but excluding his testimony as to the issues of diminution in value, toxicology, and

2

the costs of replacing an HVAC system).

Having reviewed the parties’ respective motions, responses, replies, and
supplemental filings as well as having heard arguments from the parties and having
applied Daubert and other applicable law, and for the reasons stated on the record
during the August 25, 2017 hearing, it is
ORDERED AND ADJUDGED that
1.

Relator’s Omnibus Motion in Limine (DE# 711, 12/28/16) is GRANTED IN
PART AND DENIED IN PART. Motion in Limine No. 1 is GRANTED; the
defendants shall not make any reference to, or proffer evidence of, the
United States Department of Justice’s (“DOJ”) decision to not intervene in
this action or its absence from the trial. Motion in Limine No. 2 is DENIED;
the defendant may reference Humana’s cooperation with the Department
of Justice because it is relevant to the issue of Humana’s scienter. Motion
in Limine No. 3 is GRANTED IN PART and DENIED IN PART; the
defendants shall not question the Relator on the issue of attorneys’ fees
because her attorneys represented that the relator is not recovering any
share of the attorneys’ fees. The defendants may offer evidence of the
trebling of damages and penalties under the False Claims Act as well as
the relator’s entitlement to a percentage share of any damages recovery.
Motion in Limine No. 4 is GRANTED because the probative value is
outweighed by the undue prejudice and plenty of opportunities to show
the relator’s bias exist without referencing prior court rulings; the
defendants shall not reference or offer evidence of prior court rulings
3

dismissing claims or striking allegations at trial. Motion in Limine No. 5 is
GRANTED because the probative value is outweighed by the undue
prejudice under Rule 403(b) of the Federal Rules of Evidence and may
inflame the jury; the defendants shall not reference or offer evidence of
the six (6) instances in the motion in limine that attack the relator’s
character. Motion in Limine No. 6 is GRANTED IN PART and DENIED IN
PART; the defendants shall not reference or offer evidence of the
defamation lawsuit, but the defendants may reference and offer evidence
of the unproven, alleged defamation. Motion in Limine No. 7 is
GRANTED IN PART; the defendants shall not reference or offer evidence
of attacks on the relator’s abilities as a medical doctor or whether the
relator’s patient’s complained about her abilities. The defendants may
reference or offer evidence of the mistakes that the relator made in her
diagnoses of patients as well as her review of the patients’ medical
records. Motion in Limine No. 8 is DENIED IN PART; pursuant to Rule
608(b) of the Federal Rules of Evidence, the defendants may crossexamine the relator on the unrelated alleged fraud issues (e.g. forgery of
the relator’s signature regarding home health care fraud; falsifying lab
scores; falsifying records before audits), but the defendants may not
introduce extrinsic evidence. Motion in Limine No. 9 is GRANTED; the
defendants shall not reference or offer evidence to establish that the
claims were not false because Medicare did not deny them or seek

4

refunds. Motion in Limine No. 10 is DENIED; the defendants may
reference or offer evidence regarding the provision in Humana’s contract
that required the relator to give Humana notice of fraud as well as the
relator’s attempt to obtain another Humana contract after the relator said
she would not do business with Humana because of the alleged fraud at
issue in the present case. Both issues are relevant to the issue of the
relator’s credibility. Motion in Limine No. 11 is GRANTED as long as the
relator does not introduce or argue patient harm caused by Dr.
Cavanaugh’s decisions not to refer patients to specialists; the defendants
may not reference or offer evidence to imply that because the fraud
caused no patient harm, there is no fraud. Motion in Limine No. 12 is
GRANTED; the defendants shall not reference or offer evidence of prior
inconsistent statements of the relator during settlement negotiations
between the parties to impeach the relator. Motion in Limine No. 13 is
GRANTED in part; the defendants shall not reference or offer evidence of
the relator’s fancy house or the value of her house, but are permitted to
reference or offer evidence to show that the relator reviewed the medical
records at issue at her leisure and without interruptions (i.e. not bothered).
2.

Relator’s Motion to Strike, or, in the Alternative, Limit the Testimony of
Leslie Norwalk (DE# 712, 12/28/16) is DENIED. The probative value of
Leslie Norwalk’s qualifications outweighs any undue prejudice pursuant to
Rule 403 of the Federal Rules of Evidence. Ms. Norwalk is the former

5

Acting Administrator of the Centers for Medicare and Medicaid Services
(“CMS”) and is highly qualified to testify regarding Medicare Part C and
whether Humana satisfied its duties under the Medicare Advantage
Organization (“MAO”) regulations. Ms. Norwalk received Touey
authorization from the government to testify to certain issues and the
government did not object to her testimony at her deposition in this action.
Because Ms. Norwalk’s testimony does not violate Rule 403 of the
Federal Rules of Evidence, the jury should be permitted to hear her
qualifications and opinions.
3.

Defendant Humana Inc.’s Motion in Limine to Exclude Arguments and
Evidence Concerning Humana Inc.’s Profitability, Wealth, Legal
Representation, Financial Condition, Net Worth, and/or Other Similar
Statements and Comparisons to Any Other Party (DE# 716, 12/28/16) is
GRANTED IN PART. The relator shall not reference or offer evidence of
Humana’s gross revenues, profitability and assets; the relator may
question witnesses regarding the financial importance of the Medicare
Advantage Organization portion of Humana’s business. The motion is
DENIED WITHOUT PREJUDICE to renew at trial depending on whether
Humana raises certain defenses regarding the issue of whether Humana
could have done the same things with PMC as it did when Humana
received notice of Dr. Thompson’s alleged fraud.

4.

Defendants’ Plaza Medical Centers, Corp.’s and Dr. Michael Cavanaugh’s
Motion in Limine to Limit Evidence of Allegedly Unsupported Diagnoses
6

and Evidence of Damages to Those Specific Diagnosis/Code
Submissions Identified by Relator in the Body of Her Complaint and
Exhibit 29 and Incorporated Memorandum of Law (DE# 707, 12/28/16) will
be disposed of after the undersigned reviews the parties’ respective
supplemental briefs that are to be filed by September 6, 2017.
5.

Defendant Humana Inc.’s Motion in Limine to Exclude All Evidence and
Argument Concerning Other Lawsuits, Investigations, or Legal Allegations
Involving Humana, Inc. (DE# 719, 12/28/16) is GRANTED. As previously
addressed regarding Issue No. 4 in the Relator’s Omnibus Motion in
Limine (DE# 711), supra, prior court rulings regarding the dismissal of
other centers as defendants in this action are not admissible. Dr. Arena is
not a Humana provider and is STRICKEN as one of relator’s trial
witnesses. When specifically shown a list of witnesses that included Dr.
Arena and questioned during her deposition, the relator testified that she
was not calling Dr. Arena as a witness. The undersigned finds that Dr.
Arena testimony at trial would unduly prejudice the defendants because
the defendants relied on the relator’s representation that she was not
calling Dr. Arena as a witness and the discovery deadline passed before
the relator changed her mind. The defendants had no opportunity to
depose Dr. Arena.

6.

Defendants’ Plaza Medical Centers, Corp.’s and Dr. Michael Cavanaugh’s
Omnibus Motion in Limine (DE# 709, 12/28/16) is GRANTED IN PART
AND DENIED IN PART. Because the undersigned finds the terms
7

“fraud,” “scheme,” and “fraudulent scheme” are common terms, Issue #1
is DENIED IN PART and the relator may use such terms at trial; the
relator may not use the term “conspiracy,” however, because the relator’s
conspiracy claim was dismissed previously. Issue #2 is GRANTED IN
PART AND DENIED IN PART so that evidence regarding other
Plaza/PMC facilities or other facilities partially owned by Dr. Cavanaugh,
Plaza Medical Center (“PMC”) or principals of PMC should be excluded,
except that the BRG Report that Humana prepared and provided to the
Department of Justice is admissible. The BRG Report reveals increased
prevalence rates at other centers owned or partially owned by Dr.
Cavanaugh that are similar to the prevalence rates at PMC after Dr.
Cavanaugh took over PMC. The four (4) CarePlus centers contained in
the BRG Report shall be REDACTED. (See discussion at Paragraph 7
below). The BRG Report is relevant to Humana’s intent and lack of
mistake. The undersigned finds the BRG Report is not confusing or
unfairly prejudicial. The defendants may obtain a jury instruction
regarding the purpose of the evidence as it pertains to evidence of intent
and lack of mistake. Issue #3 is GRANTED; all attorneys shall not make
any derogatory comments about the parties’ respective attorneys within
earshot of the Court, the undersigned or the jury while this action is
pending. Issue #4 is DENIED; the relator’s damages expert, Andrew
Ranck, is qualified to provide expert testimony at trial. Mr. Ranck is an
accountant who described his methodology, which can be tested, and Mr.
8

Ranck relied on CMS to establish his methodology. Mr. Ranck’s original
methodology is admissible.
7.

Defendant Humana Inc.’s Motion in Limine to Exclude All Evidence and
Argument Relating to CarePlus and All Facilities and Entities Affiliated
with Plaza Medical Centers, Corp. (DE# 720, 12/28/16) is GRANTED IN
PART AND DENIED IN PART. During the hearing, the relator conceded
that she would only introduce the BRG Report in regard to the nine other
Plaza-affiliated clinics. Although CarePlus is a Humana, Inc. subsidiary, it
enters into separate contracts directly with CMS and it has separate
operations from Humana. The undersigned finds that under Rule 402 of
the Federal Rules of Evidence any evidence or arguments regarding the
conduct of CarePlus is irrelevant because they operate separately from
the named defendants. Additionally, the undersigned finds that even if
evidence of CarePlus facilities was relevant, its “probative value is
substantially outweighed by a danger of ... unfair prejudice, confusing the
issues, [and] wasting time.” Fed. R. Civ. P. 403. The BRG Report is
admissible after the four (4) CarePlus centers are REDACTED.

8.

Relator’s Motion to Strike Opinions of Dr. Mark Stern (DE# 717, 12/28/16)
is DENIED AS MOOT in light of the relator’s ore tenus withdrawal of the
motion without prejudice.

9.

Defendants’ Plaza Medical Centers, Corp.’s and Dr. Michael Cavanaugh’s
Motion to Exclude Testimony or Other Evidence Pursuant to Daubert and
as Untimely under Rule 26 (DE# 708, 12/28/16) is GRANTED IN PART.
9

The relator’s expert, Dr. Weine, shall not opine on whether Dr. Cavanaugh
committed fraud. Dr. Weine may testify about Dr. Cavanaugh’s medical
diagnoses that are at issue in this action.
10.

Defendant Humana Inc.’s Motion in Limine to Exclude the Untimely Expert
Opinions of Gary Weine (DE# 721, 12/28/16) is GRANTED and Dr.
Weine’s supplemental expert report is STRICKEN as untimely. The
undersigned finds that without leave of Court, the relator provided Dr.
Weine’s supplemental expert report thirty-six (36) days beyond the
disclosure deadline for expert reports, which was two days before the
discovery deadline and two days before Dr. Weine’s scheduled
deposition. The undersigned finds that Dr. Weine’s untimely
supplemental report added approximately three hundred (300) additional
diagnoses and caused substantial prejudice to the defendants because
they did not have time to review the additional diagnoses before Dr.
Weine’s deposition and the close of discovery two days later.
Additionally, the defendants did not have an opportunity to secure rebuttal
medical experts regarding the almost 300 additional diagnoses. The
relator neither requested an extension of time to file the untimely
supplemental report nor requested an enlargement of the discovery
period.

11.

Defendant Humana Inc.’s Motion to Exclude Testimony of Dr. Gary
Weine, M.D. (DE# 724, 12/28/16) is GRANTED IN PART. Dr. Weine is
not qualified to testify as an expert regarding coding medical diagnoses
10

(i.e. ICD-9 codes) and shall not testify regarding errors in coding other
than that the underlying medical diagnosis is incorrect.
12.

Defendant Humana Inc.’s Motion to Exclude Testimony of Andrew Ranck
(DE# 725, 12/28/16) is DENIED. Humana seeks to exclude the testimony
of the relator’s expert fraud investigator, Andrew Ranck, who performed a
prevalence rate analysis. The relator advised Humana that she will not be
offering testimony on Mr. Ranck’s damages extrapolation. See Motion at
3 (DE# 725, 12/28/16). Mr. Ranck shall not use the word “outlier” in his
testimony at trial due to the term’s statistical significance. Mr. Ranck is
not a statistician and may not testify regarding confidence intervals and
confidence bands. Mr. Ranck is a fraud investigator who may testify
regarding the prevalence rates of certain diagnoses at PMC compared to
the prevalence rates of certain diagnoses in the State of Florida. The
undersigned finds that Mr. Ranck’s methodology is reliable and does not
involve statistics. Any attacks on Mr. Ranck’s methodology can be
addressed on cross-examination. Mr. Ranck compares the State of
Florida prevalence rates to the prevalence rates of PMC patients based
on actual numbers, not samples, and thus he does not provide a
statistical analysis. The undersigned finds that Mr. Ranck is qualified to
testify as an expert because he is a Certified Public Accountant and an
experienced fraud investigator. His testimony is helpful because Humana
has a duty to have a program to detect fraud.

13.

Defendant Humana Inc.’s Motion to Exclude Testimony of Dr. Gerard
11

Anderson (DE# 728, 12/28/16), which was joined by Dr. Cavanaugh and
PMC, is GRANTED IN PART. The undersigned finds that Dr. Anderson is
not qualified to offer any opinions regarding the propriety of any medical
diagnosis coding decisions or medical diagnosis coding standards.
During his deposition, Dr. Anderson testified that he last worked at CMS in
1983 and that CMS rules and regulations are not his area of expertise.
The undersigned finds that Dr. Anderson lacks training and experience
regarding medical diagnosis coding.
DONE AND ORDERED in Chambers at Miami, Florida this 6th day of
September, 2017.

JOHN J O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to:
United States District Court Judge Moreno
All counsel of record

12