USA v. Kiely
Filing
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MEMORANDUM AND ORDER granting 26 MOTION for Leave to File Second Amended Complaint. Signed by Judge Marvin J. Garbis on 7/9/2013. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
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Plaintiff
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vs.
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JOHN ARTHUR KIELY, M.D.
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Defendant
CIVIL ACTION NO. MJG-11-668
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MEMORANDUM AND ORDER RE: MOTION FOR LEAVE TO AMEND
The Court has before it the Motion of the United States for
Leave to File a Second Amended Complaint [Document 26] and the
materials submitted relating thereto.
The Court finds that a
hearing is unnecessary.
In the Complaint, the Government asserted claims against
Defendant John Arthur Kiely, M.D. ("Defendant") based upon the
contention that Defendant submitted false claims seeking payment
for ophthalmological services that either were not performed or,
if performed, were not reasonable and necessary.
[Document 1].
In a timely filed Amended Complaint, the Government identified a
total of 134 patients and the alleged false claims relating to
each of those patients.
[Document 6].
By the instant motion, the Government seeks to add claims
relating to 37 of the 134 patients identified in the Amended
Complaint.
Specifically, the Government seeks to add claims
that as to this subset of the patients at issue, Defendant
submitted claims for unperformed or unnecessary Laser Peripheral
Iridotomies ("LPI").
Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a court "should freely give leave" to amend a
complaint "when justice so requires." Despite this general rule
liberally allowing amendments, the United States Court of
Appeals for the Fourth Circuit has held that a district court
should deny leave to amend where amendment "would be prejudicial
to the opposing party, there has been bad faith on the part of
the moving party, or the amendment would have been futile."
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)
(quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir. 1986)).
Defendant opposes the motion, asserting that:
The amendment would be futile as barred by
limitations, and
The amendment is prejudicial, the result of
dilatory conduct and/or was brought to gain an
unfair tactical advantage.
The Court finds that, subject to the conditions set forth
herein, the interest of justice warrants allowing the Government
to file the proffered Second Amended Complaint.
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The Defendant will, of course, retain the right to seek
dismissal of any time barred claims.
However, the Government
has presented a response to Defendant's limitations argument
that appears to make it likely that at least some, if not all,
of the LPI based claims will be held timely.
While the Amendment is "prejudicial" in the sense that it
is not beneficial to Defendant, it is not "prejudicial" in a
sense that warrants denial of the Government's request.
Defendant was put on notice of the 134 patients on whom the
Government bases claims in the Amended Complaint.
The Second
Amendment serves only to specify additional procedures with
regard to 37 of those patients.
Moreover, even without the
Second Amended Complaint, the Government would most likely have
a legitimate basis to seek admission of evidence as to LPI
procedures relating to the 37 patients at issue – particularly
those procedures done without necessity.
See Fed. R. Evid.
404(b)(2) (explaining evidence of "a crime, wrong, or other act"
is admissible to prove "motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident").
The Court does not find that the Government engaged in
dilatory conduct or delayed seeking leave to amend to gain
tactical advantage.
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The Court finds, however, that the Government's leave to
amend should be conditioned.
Certainly, the Defendant should be
afforded the opportunity to engage in discovery needed in light
of the Amendment and, perhaps, there would be a need for some
additional Government discovery in response.
In addition, Defendant has stated in his opposition:
The defense searched for and selected
experts based upon the Government's ALT and
LOA claims. The defense will now need to
search for and select a new expert relating to
the LPI claims and may be further burdened
with losing one or more of the experts it has
found who may be critical of the Defendant
regarding
the
LPI
issue.
Certainly,
the
Government will examine Defendant's experts on
that issue and Defendant should not be
prejudiced by having to go back to square one
because of the Government's dilatations.
Def. Opp'n [Document 28] at 9.
Perhaps, as Defendant suggests, some of his expert
witnesses willing to support his position regarding the ALT and
LOA claims would not testify favorably to him regarding the LSI
claims.
Some relief may, and I emphasize "some" and "may", be
appropriate in regard to these witnesses.
For the foregoing reasons:
1.
The Motion of The United States for Leave to File
a Second Amended Complaint [Document 26] is
GRANTED.
2.
The Second Amended Complaint [Document 26-2] is
accepted as filed this date.
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3.
All outstanding deadlines shall be modified by
further order.
4.
The Government shall arrange a case planning
conference to be held at a mutually convenient
time no later than July 31, 2013.
SO ORDERED, on Tuesday, July 9, 2013.
/s/__________
Marvin J. Garbis
United States District Judge
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