United States of America, ex rel., et al v. Sightpath Medical, Inc., et al

Filing 839

ORDER DENYING NON-PARTY JITENDRA SWARUP, M.D.'S MOTION TO QUASH OR MODIFY SUBPOENA. (Written Opinion). Signed by Judge Wilhelmina M. Wright on 12/30/2022. (CJB) (Entered: 12/30/2022)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America, ex rel. Kipp
Fesenmaier,
Plaintiffs,
v.

Case No. 13-cv-3003 (WMW/DTS)

ORDER

The Cameron-Ehlen Group, Inc. and Paul
Ehlen,
Defendants.
Before the Court is non-party Jitendra Swarup, M.D.’s motion to quash or modify
the United States’ subpoena to appear and testify at trial. (Dkt. 816). For the reasons
addressed below, the Court denies the motion.
BACKGROUND
In 2013, Relator Kipp Fesenmaier filed this qui tam action against Sightpath
Medical, Inc. (Sightpath), TLC Vision Corporation, the Cameron-Ehlen Group, Inc., doing
business as Precision Lens (Precision Lens) and Paul Ehlen, alleging an illegal financial
relationship between defendants and their referral sources that caused the submission of
false claims for payment to federally-funded health care programs in violation of the False
Claims Act (FCA). Two years later, Fesenmaier filed an amended complaint, adding a
number of doctors as defendants, including Dr. Swarup. Dr. Swarup subsequently entered
into a settlement agreement with Fesenmaier and the United States and was dismissed from
this lawsuit with prejudice in March 2018. As part of the settlement agreement, Dr. Swarup

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agreed to “cooperate fully and truthfully with the United States’ investigation of
individuals and entities” not released in the settlement agreement.
Prior to Dr. Swarup’s deposition in June 2019, the United States reserved its right
to have Dr. Swarup testify at trial. In response, counsel for Dr. Swarup informed the United
States and remaining defendants Precision Lens and Ehlen (collectively, Defendants), that
counsel had no intention of voluntarily producing Dr. Swarup at trial. Dr. Swarup’s
counsel told all parties to proceed as if Dr. Swarup’s deposition were a trial deposition.
Both Plaintiffs and Defendants deposed Dr. Swarup. In June 2019, the United States issued
a trial subpoena to Dr. Swarup, which, if valid, would require him to travel from his
residence in Suffolk, Virginia, in St. Paul, Minnesota for trial.
Dr. Swarup now moves to quash or modify the United States’ trial subpoena.
Defendants assert that, while they disagree with Dr. Swarup’s assertion that a person
properly served with a subpoena under 31 U.S.C. § 3731(a) can rely on Rule 45(c), Fed.
R. Civ. P., to refuse to comply with the subpoena, Defendants do not otherwise oppose Dr.
Swarup’s motion to quash. The United States, however, opposes Dr. Swarup’s motion and
asks the Court to enforce the subpoena compelling Dr. Swarup’s attendance at trial
ANALYSIS
Dr. Swarup’s motion presents two issues for the Court’s consideration. First,
whether a person properly served with a trial subpoena pursuant to 31 U.S.C. § 3731(a)
quash that subpoena using the 100-mile travel limitation set forth in Rule 45(c), Fed. R.
Civ. P. Second, even if such a subpoena is otherwise proper, whether compliance with the

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subpoena poses an undue burden for Dr. Swarup that merits quashing the subpoena. The
Court addresses each issue in turn.
I.

Validity of the United States’ Subpoena Under the Federal Rules of Civil
Procedure and the False Claims Act

To resolve Dr. Swarup’s motion, this Court must first determine whether the United
States’ subpoena is proper under 31 U.S.C. § 3731(a) in light of the 100-mile travel
limitation set forth in Rule 45(c), Fed. R. Civ. P.
Rule 45(c) provides that a subpoena may command appearance of a non-party at
trial only “within 100 miles of where the person resides, is employed, or regularly transacts
business in person.” Fed. R. Civ. P. 45(c). Section (d)(3)(A)(ii) of Rule 45 requires that a
district court quash or modify a subpoena that “requires a person to comply beyond the
geographical limits specified in Rule 45(c).” Id. at 45(d)(3)(A)(ii). However, Rule 45 is
subject to exceptions. As explained in Rule 81(a)(5), Fed. R. Civ. P., the federal rules
apply to subpoenas to compel testimony “except as otherwise provided by statute, by local
rule, or by court order in the proceedings.” Fed. R. Civ. P. 81(a)(5) (emphasis added).
Dr. Swarup and the parties dispute whether the subpoena provision in the FCA
constitutes an exception to the general 100-mile geographic limitation in Rule 45. The
FCA provides that a “subpoena requiring the attendance of a witness at a trial or hearing
conducted under section 3730 of [the FCA] may be served at any place in the United
States.” 31 U.S.C. § 3731(a). And the vast majority of courts to have considered Section
3731(a) have held that this statute grants nationwide subpoena power in FCA cases. See
e.g., United States ex rel. Hockaday v. Athens Orthopedic Clinic, P.A., No. 3:15-cv-122

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(CDL), 2022 WL 15092294, at *2 (M.D. Ga. Oct. 26, 2022) (observing that “Rule 45’s
geographical limits do not apply to a subpoena issued under § 3731(a); the only limitation
is Rule 45’s undue burden rule); United States ex rel. Marsteller v. MD Helicopters, Inc.,
No. 5:13-cv-08300-AKK, 2021 WL 7907339, at *1 (N.D. Ala. Sept. 9, 2021) (holding that
the FCA’s nationwide service provision “gives the court the power to compel the
attendance of witnesses even if they fall outside of Rule 45(c)’s 100-mile radius”); United
States ex rel. Lutz v. Berkeley Heartlab, Inc., No. 9:14-cv-230-RMG, 2017 WL 5624254,
at *1 (D.S.C. Nov. 21, 2017) (collecting cases).
Dr. Swarup argues that, because the United States’ subpoena is invalid under the
text of Rule 45, the subpoena should be quashed or modified. But, as other courts have
explained, language similar to the language used in Section 3731(a) is understood to
authorize compulsory subpoena power nationwide. See United States v. Wyeth, Nos. 0312366-DPW, 06-11724-DPW, 2015 WL 8024407, at *3 (D. Mass. Dec. 4, 2015)
(explaining that even though certain statutes only speak of the “service” or “issuing” of a
subpoena, these parallel statutes also authorize nationwide enforcement of subpoenas). For
example, the text in Section 3731(a) closely tracks the text in Rule 17(e), Fed. R. Crim. P.,
which is well-established as a provision that authorizes nationwide enforcement of
subpoenas in criminal proceedings. Id. at *2; compare 31 U.S.C. § 3731(a) (stating a
subpoena “requiring the attendance of a witness at a trial . . . may be served at any place in
the United States”) with Fed. R. Crim. P. 17(e) (stating a subpoena “requiring a witness to
attend a hearing or trial may be served at any place within the United States.”) Because

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such language in commonly understood to encapsulate both nationwide service and
nationwide subpoena power, the Court is not persuaded by Dr. Swarup’s textual arguments.
Dr. Swarup also contends that reading Section 3731(a) to override the 100-mile
travel limitation in Rule 45(c) is inconsistent with the purpose of the FCA’s subpoena
provision, because when Section 3731(a) was enacted, Rule 45 did not yet permit
nationwide service of subpoenas. The United States disagrees, citing specific legislative
history to demonstrate that one reason Congress enacted Section 3731(a) was to address
concerns that the government is “severely restricted in obtaining trial witnesses for false
claims litigation by . . . the limited subpoena power under Rule 45.” H.R. Rep. No. 951447 (1978). Given the text of Section 3731(a), which permits a party in an FCA case to
serve subpoenas “requiring the attendance of a witness at trial,” along with its legislative
history, the United States’ interpretation of Section 3731(a) comports with the provision’s
intended purpose and, therefore, constitutes the better reading of Section 3731(a).
Finally, Dr. Swarup asserts that the Rules Enabling Act applies, and therefore
Rule 45 supersedes Section 3731(a). See 28 U.S.C. § 2072(a). But, as Dr. Swarup
concedes, the rule and statute at issue must “conflict[] irreconcilably” for the Rules
Enabling Act to apply. Henderson v. United States, 517 U.S. 654, 663 (1996). Here, no
such conflict exists. Indeed, Rule 81(a)(5) expressly permits Rule 45 to be superseded as
provided by a statute. See Fed. R. Civ. P. 81(a)(5). As such, there is no irreconcilable
conflict between the Federal Rules of Civil Procedure and the FCA that would justify
application of the Rules Enabling Act.

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For these reasons, this Court concludes that 31 U.S.C. § 3731(a) authorizes
nationwide subpoena power. Accordingly, Dr. Swarup is bound by the United States’
subpoena, unless the subpoena imposes an undue burden.
II.

Undue Burden Analysis Under Federal Rule of Civil Procedure 45

Even when the United States’ subpoena is otherwise proper, a court determining
whether to quash or modify a subpoena must consider whether the subpoena in question
constitutes an undue burden under Rule 45(d)(3)(A)(iv), Fed. R. Civ. P.

See, e.g.,

Hockaday, 2022 WL 15092294, at *2. Here, Dr. Swarup contends that requiring him to
testify in person would constitute an undue burden in light of his prior deposition and his
busy surgical schedule treating patients in North Carolina and Virginia. The United States
argues that, although testifying at trial would burden Dr. Swarup, that burden is outweighed
by the importance of his trial testimony.
“In determining whether a subpoena poses an undue burden, the court should
balance the relevance of the testimony sought and the requesting party’s need for the
testimony against the potential hardship to the party subject to the subpoena.” Tyler v.
Rahe, No. 08-00129-CV-W-DW, 2014 WL 1875257, at *1 (W.D. Mo. May 9, 2014). The
party opposing the subpoena must prove that the subpoena imposes an undue burden. Id.
Dr. Swarup is a practicing ophthalmologist surgeon, serving elderly and financially
disadvantaged patients in regions of North Carolina and Virginia, where the number of
ophthalmologists is limited. The Court does not take lightly the burden that the subpoena
imposes on Dr. Swarup and his patients, as it would require him to travel over 1,000 miles
and would almost certainly affect his treatment-and-surgery schedule. The United States

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argues that the need for Dr. Swarup’s in-trial testimony is substantial, because Dr.
Swarup’s testimony concerns renumeration Defendants offered and paid to Dr. Swarup
from a “secret slush fund” and is thus directly probative of Defendants’ knowledge and
willfulness. In addition, the United States contends that professional obligations, even
when substantial, are an insufficient basis to quash a subpoena. Ferrell v. IBP, Inc., No.
C98-4047-MJM, 2000 WL 34032907, at *1 (N.D. Iowa Apr. 28, 2000) (finding
“demanding professional responsibilities” an insufficient basis to quash a subpoena). The
Court agrees that, while the burden on Dr. Swarup is significant, it is not an undue burden
in light of the relevance of Dr. Swarup’s testimony and the United States’ need for his
testimony at trial to establish Defendants’ knowledge and willfulness.
Dr. Swarup contends that the United States can simply play his deposition testimony
at trial rather then requiring him to attend in person. The United States responds that Dr.
Swarup’s deposition testimony establishes Dr. Swarup’s personal knowledge of the facts
of the case and, therefore, that “Plaintiffs are entitled to present this testimony to the jury”
at trial. Paul v. Stewart Enters. Inc., No. Civ.A. 99-3441, 2000 WL 1597935, at *2 (E.D.
La. Oct. 26, 2000) (denying motion to quash subpoena even when witness had previously
been deposed); Marsteller, 2021 WL 7907339, at *2 (recognizing that a party “should
generally have an opportunity to present its case in a manner that party believes the
situation warrants” but finding good cause to modify subpoena to allow remote testimony
based on grounds other than existence of a prior deposition). Neither of the Eighth Circuit
cases that Dr. Swarup cites compels a different conclusion, as neither case directly
addresses whether the existence of a prior deposition is sufficient to quash a subpoena

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under the undue burden analysis. See generally Wagner v. Gallup, Inc., 788 F.3d 877,
890–91 (8th Cir. 2015) (addressing improperly issued subpoenas); Miscellaneous Docket
Matter No. 1 v. Miscellaneous Docket Matter No. 2., 197 F.3d 922, 924 (8th Cir. 1999)
(quashing subpoena where party sought irrelevant and embarrassing information from
deponent). Moreover, depositions have long been treated as a second-best substitute, and
courts recognize a preference for live testimony. See Aristocrat Leisure Ltd. v. Deutsche
Bank Tr. Co. Am., 262 F.R.D. 293, 300–01 (S.D.N.Y. Sept. 16, 2009). The Court does not
conclude that Dr. Swarup’s prior deposition is a sufficient replacement for his in-person
testimony at trial, nor is modifying the subpoena to allow Dr. Swarup to testify remotely
merited.
For these reasons, the Court declines to quash or modify the United States’
subpoena. Nonetheless, in light of the significant burden imposed on Dr. Swarup and his
patients, the Court encourages the parties to confer in an effort to agree on an arrangement
in which the inconvenience to Dr. Swarup is as limited as possible.

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ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED that non-party Jitendra Swarup, M.D.’s motion to quash or
modify the United States’ subpoena to appear and testify at trial, (Dkt. 816), is DENIED.

Dated: December 30, 2022

/s/ Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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