Dicken,et al. v. Northwest Eye Center, P.A., et al.

Filing 125

ORDER granting in part and denying in part 112 Motion to Compel; denying 112 Motion for Sanctions(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 6/14/2018. (LCC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America, ex rel., and
Robert A. Dicken, Relator,

Case No. 0:13-cv-2691 (JNE/KMM)

Plaintiffs,
ORDER

v.
Northwest Eye Clinic, P.A., Christopher
J. Borgen, and Eric M. Tjelle,
Defendants.

Frederick L. Neff, Neff Law Firm, P.A., 7400 Metro Boulevard, Suite 390, Edina, MN
55439; Chad A. Blumenfield and Pamela Marentette, 300 South 4th Street, Suite 600,
Minneapolis, MN 55415, counsel for plaintiffs.
Alex Herman, Garth J. Unke, and Kirsten J. Hansen, Stich Angell Kreidler Unke &
Scattergood P.A., 250 2nd Avenue South, Suite 120, Minneapolis, MN 55401, counsel
for defendants.
Introduction
This discovery dispute arises out of a qui tam case involving Medicare billing
fraud. The relator, Dr. Dicken, alleges that the Defendants, Dr. Borgen, Dr. Tjelle,
and their employer Northwest Eye Clinic, P.A. (collectively, “Northwest”), submitted
fraudulent claims to be paid by Medicare, including running unnecessary tests, billing
for more complex services than actually rendered, and requiring patients to return
frequently for unnecessary appointments.
Procedural Background
Dr. Dicken moved to compel discovery of the majority of his outstanding
Requests for Production (“RFP”) and Requests for Admission, arguing that
Northwest had not fully responded to his discovery requests. He also moved for
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sanctions against Northwest, its attorneys, or both. Northwest responded that the
majority of Dr. Dicken’s requests were overly broad, unduly burdensome, and
irrelevant to the case. In addition, Northwest expressed concern that some of the
requests were unclear.
At the hearing, the Court worked with counsel for Dr. Dicken to identify six
discovery disputes currently at issue:
(1) whether discovery should be limited to the time frame of October
2007 to June 2014, or should continue until the date of trial;
(2) the appropriate scope of discovery of the patient charts and files for
Medicare patients;
(3) the appropriate scope of discovery of Medicare billing and payment
information from Northwest;
(4) whether Northwest had fully and properly responded to Dr. Dicken’s
request for communications relating to fraud or billing to and from
“financial intermediaries”;
(5) the appropriate scope of discovery regarding Medicare patient
financial records and explanations of benefits; and
(6) whether Dr. Dicken was entitled to discovery of Northwest’s “master
charge list.”
The Court ruled from the bench on all of these, and now issues this Order
memorializing those decisions.
Analysis
The scope of discovery is broad, and the discovery rules are liberally
interpreted. “Information is generally discoverable unless it is clear that the
information sought has no bearing upon the subject matter of the action.” Shukh v.
Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013). However, a “threshold
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showing of relevance” must be made by the proponent of discovery, “in order to limit
fishing expeditions.” Id. (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th
Cir. 1992). A district court has “the discretion to limit the scope of discovery to what
the court perceive[s are] the central issues.” Hill v. Southwestern Energy Co., 858 F.3d
481, 484 (8th Cir. 2017) (quoting MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 n.4
(8th Cir. 2015). Further, discovery must be “proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). The Court in making this decision is guided by factors within
Rule 26(b)(1), including whether the burden placed on the producing party outweighs
the likely benefit of the discovery. See also Deluxe Fin. Servs., LLC v. Shaw, No. 16-cv3065, 2017 WL 7369890 at *3–4 (D. Minn. Feb. 13, 2017) (“it is the ‘collective’
responsibility of the parties and the Court ‘to consider the proportionality of all
discovery.’” (quoting Advisory Committee Notes to the 2015 Amendments of Fed. R.
Civ. P. 26(b)(1))).
Against this legal landscape, the Court ruled on the discovery disputes, striving
to balance the relator’s need for information to prove his case and the requirement
that discovery remain proportional and efficient.
A. Temporal Limitations of Discovery
For the reasons discussed on the record and reiterated here, discovery in this
case will be limited to the time period of October 1, 2007 to June 30, 2014. Dr.
Dicken’s Second Amended Complaint sets forth dozens of examples of alleged
fraudulent activity only during the time period of [2002] through June of 2014.1 By its
own language, it repeatedly and explicitly limits this action to fraudulent activity that
occurred only between October 1, 2007 to June 30, 2014. (E.g., Pl.’s 2d Amend.
Compl. ¶ 22 (“This complaint covers only the false claims filed by Borgen and Tjelle
from October 1, 2007 into June of 2014.”); see also id. ¶¶ 42, 45, 63, 79, 127, 128, 200,
201, 285.) Because of the clear time-frame at issue in the complaint, the Court finds
Only claims from October 1, 2007 are actionable, however, due to the statute of
limitations. See Order, United States ex rel. Robert Dicken v. Northwest Eye Center, P.A.,
13-cv-2691 (D. Minn. May 30, 2017).

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that requiring discovery outside of the seven years at issue would not be proportional
to the needs of the case. See Mayo Clinic v. United States, No. 16-cv-03113-JNE-KMM,
2017 WL 8676991 at *5 (D. Minn. Dec. 15, 2017) (noting that courts should consider
“the likelihood (or not) that information of significant probative value will be found
[in the requested discovery].”).
Dr. Dicken has presented three non-binding cases, which he argues
demonstrate that discovery should not be limited to the representative claims pleaded
in a qui tam complaint, or to the period of employment of the relator. While this
Court largely agrees with Dr. Dicken as to his reading of the cases, this Court does
not agree that the cases are applicable to this dispute.
Dr. Dicken’s lead case is United States ex rel. Brooks v. Stevens-Henager College, Inc.,
No. 2:15-cv-00119-JNP-EJF, 2018 WL 296088 (D. Utah Jan. 4, 2018). In Brooks, the
court declined to limit discovery to the time period of the relator’s employment and
the specific allegations in the complaint. Dr. Dicken argues that Brooks stands for the
proposition that discovery in a qui tam case cannot be limited to allegations within the
complaint. This is inaccurate. The Brooks Court chose not to limit discovery because
the complaint in that case specifically alleged fraudulent actions far beyond the limited
time frame advocated for by the defendants. Id. at *5–6. Furthermore, the complaint
contemplated additional fraudulent actions not specifically pleaded: “the Complaint
repeatedly alleges a fraudulent course of conduct ‘to at least 2011.’ The ‘at least’
language indicates that [Plaintiffs] assert claims through 2011 at a minimum, not to
2011 only.” Id. at *5 (citation omitted). The Brooks case is easily distinguishable
because Dr. Dicken’s complaint explicitly creates a clear time period of October 2007
to June 2014, and nowhere does it allege any fraudulent activity continuing past 2014.
Dr. Dicken’s other authority, United States ex rel. Fiederer v. Healing Hearts Home
Care, Inc., No. 2:13-cv-1848-APG-VCF, 2014 WL 4666531 (D. Nev. Sept. 18, 2014),
and United States ex rel. McCartor v. Rolls-Royce Corp., No. 1:08-cv-00133-WTL-DML,
2013 WL 5348536 (S.D. Ind. Sept. 24, 2013), are similarly inapposite. Both decisions
stand for the principle that discovery in qui tam cases should not be limited to the
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relator’s time of employment with the defendant. Fiederer, 2014 WL 4666531 at *4–6;
McCartor, 2013 WL 5348536 at *3–5. This rule is inapplicable here, since defendants
do not seek, and this Court does not impose, a limitation on discovery tied to Dr.
Dicken’s term of employment, which lasted only to April 30, 2011. (Pl.’s 2d Amend.
Compl. ¶ 76.)
While relevancy in discovery is to be interpreted liberally, it must still “hew
closely to matters specifically described in the complaint lest discovery, because of its
burden an expense, become the centerpiece of litigation strategy.” McCartor, 2013 WL
5348536 at *7. And proportionality remains an important overall constraint. See Fed.
R. Civ. P. 26(b)(1). The liberal discovery rules do not permit a plaintiff discovery
across an unlimited timeline, especially when the plaintiff has pleaded a specific and
limited timeline in its complaint. Accordingly, discovery in this case will be limited to
the time period of October 1, 2007 to June 30, 2014.2
B. Appropriate scope of discovery of patient files and billing materials.
The Court uses its discretion to limit discovery of patient files and billing
materials to those that contain one or more of the CPT and ICD-9 codes identified in
the Second Amended Complaint, as well as the CPT code identified during the
hearing on this Motion. If additional allegedly suspicious codes are uncovered, the
parties should meet and confer to determine whether additional discovery is
necessary.
Within the temporal and subject-matter limitations discussed above, the Court
holds that Dr. Dicken is entitled to discovery of the following categories of
information: patient charts and files for Medicare patients; Medicare billing and
payment information; communications relating to fraud or billing to and from
Counsel for Dr. Dicken objected to this ruling on the record, and indicated that Dr.
Dicken would likely file a motion to amend the complaint once again in order to
expand the temporal period of this litigation. The Court will address any motion to
amend, and subsequent motion to expand discovery, if and when such motions are
filed.

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financial intermediaries; Medicare patient financial records and explanations of
benefits; and any “master charge list” of Northwest Eye Clinic that may exist.
The court acknowledges that discovery of all Medicare patient charts and files
could be unduly burdensome to Northwest, notwithstanding the temporal and subject
matter limitations above. However, neither party has provided details regarding the
total number of documents encompassed by this request, nor the burden that such a
discovery request may cause. Therefore, parties are ordered to meet and confer
regarding the appropriate scope of discovery of these documents. They are
encouraged to agree to a representative sample size from within the above-delineated
pool that is large enough for both parties to adequately assess the strengths and
weaknesses of their claims and defenses.
C. Sanctions
Finally, the Court finds that sanctions are not appropriate here. Northwest has
not failed to comply with a court order, as would justify sanctions under Federal Rule
of Civil Procedure 37(b), nor has Northwest failed to respond to or participate in
discovery. See Fed. R. Civ. P. 37(d). Finally, this Court finds that Northwest was
substantially justified in not providing all discovery requested, due to the overbreadth
of the requests and the parties’ inability to effectively communicate to narrow the
disagreement. Accordingly, the Court will deny Dr. Dicken’s motion for sanctions.
Conclusion
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. Dr. Dicken’s Motion to Compel is GRANTED in part and DENIED in part:
a. Discovery is limited to documents created during or related to the time
period of October 1, 2007 to June 30, 2014.

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b. Discovery of patient files or billing information is further limited to
those documents that contain one or more of the CPT and ICD-9 codes
identified in the Second Amended Complaint.
c. Northwest shall produce all responsive documents that it has within its
possession or control within 30 days of this Order.
2. Dr. Dicken’s Motion for Sanctions is DENIED.

Date: June 14, 2018

s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

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