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

Filing 953

ORDER in Response to 945 Letter to District Judge, 950 Letter to District Judge. Plaintiffs' request to revise the kickbacks and false claims at issue is GRANTED. Plaintiffs' request to present rebuttal testimony is GRANTED IN PART AND DENIED IN PART as set forth in the order. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 2/10/2023. (ALT)

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.
This matter is before the Court on the Plaintiffs’ letter seeking leave of Court to
revise the at-issue claims and to present a rebuttal case. (Dkt. 945.) With some objections
to the procedure by which the revised claims are presented to the jury, Defendants do not
object to the revision Plaintiffs request. Defendants do object, however, to the rebuttal case
Plaintiffs propose. (Dkt. 950.) For the reasons addressed below, Plaintiffs’ request to
revise its claims is granted and the request to present a rebuttal case is granted in part and
denied in part.
BACKGROUND
Briefly described, the allegations in the case are that Defendants, the CameronEhlen Group, Inc., doing business as Precision Lens, and Paul Ehlen, the owner of
Precision Lens, offered unlawful kickbacks to ophthalmologists that caused those
ophthalmologists to submit false or fraudulent claims for Precision Lens products to
Medicare in violation of the False Claims Act (FCA), 31 U.S.C. § 3729(a)(1)(A)-(B).

The parties began presenting the case to the jury on January 9, 2023. Plaintiffs
rested their case on January 31, 2023, and the conclusion of Defendants’ case is imminent.
Plaintiffs seek leave to withdraw certain alleged kickbacks and the false claims related to
those kickbacks, and to present rebuttal evidence through three witnesses.
ANALYSIS
I.

Revision of Claims

Rule 15, Fed. R. Civ. P., governs the amendment of claims during trial, providing
that the Court “should freely permit an amendment when doing so will aid in presenting
the merits and the objecting party fails to satisfy the court that the evidence would prejudice
that party’s action or defense on the merits.” Fed. R. Civ. P. 15(b)(1). The Court must not
ask the jury to determine matters that are no longer in dispute. See Lamb Eng’g & Const.
Co. v. Nebraska Pub. Power Dist., 103 F.3d 1422, 1432 (8th Cir. 1997) (noting that it is
error to submit to the jury evidence regarding a claim that was withdrawn).
Plaintiffs request that its list of at-issue claims be revised to eliminate 18 alleged
kickbacks and the false claims alleged to be related to these kickbacks. Defendants agree
that the 18 alleged kickbacks and related false claims should not be presented to the jury.
Defendants request that Plaintiffs substitute, rather than revise, the exhibits that have
previously been presented to the jury. Defendants further request that the Court instruct
the jury regarding the revision.
Because Plaintiffs acknowledge that they have not established the 18 kickbacks they
seek to withdraw, including those kickbacks on the verdict form risks confusing the jury
and producing an inconsistent verdict. The Court appreciates the parties’ agreement about

2

the presentation of the revised claims to the jury and welcomes their suggestions as to an
appropriate instruction regarding the revision of Plaintiffs’ claims. Plaintiffs’ request to
withdraw the 18 kickbacks and related alleged false claims is granted.
II.

Rebuttal

“Normally, parties are expected to present all of their evidence in their case in
chief.” Gossett v. Weyerhaeuser Co., 856 F.2d 1154, 1156 (8th Cir. 1988) (quotation
omitted). Rebuttal evidence may be allowed in civil cases “to explain, repel, counteract or
disprove evidence of the adverse party.” United States v. Lamoreaux, 422 F.3d 750, 755
(8th Cir. 2005) (quotation omitted). “The principal objective of rebuttal is to permit a
litigant to counter new, unforeseen facts brought out in the other side’s case.” Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (quoting Faigin v. Kelly, 184
F.3d 67, 85 (1st Cir. 1999)). Thus, rebuttal is properly used only “to challenge the evidence
or theory of an opponent—and not to establish a case-in-chief.” Marmo, 457 F.3d at 759;
see also id. (“[A] district court should allow rebuttal evidence only if it is necessary to
refute the opponent’s case.”) (citing John Henry Wigmore, Evidence in Trials at Common
Law § 1873 (1976)). Whether to allow “additional evidence on rebuttal depends upon the
circumstances of the case and rests within the discretion of the individual most able to
weigh the competing circumstances, the trial judge.” Smith v. Conley, 584 F.2d 844, 846
(8th Cir. 1978).
Plaintiffs seek leave to present the testimony of three witnesses in rebuttal.

3

A.

Ian Dew

Because Defendants have agreed to the revision of claims discussed above, Mr.
Dew’s live testimony will be unnecessary. Plaintiffs’ request to present his testimony is
therefore denied as moot.
B.

Dr. Adriane Fugh-Berman

Dr. Fugh-Berman did not testify in Plaintiffs’ case-in-chief but was disclosed as a
potential expert witness. According to Plaintiffs, her testimony rebuts the testimony of
Defendants’ expert Scott Van Meter. But her testimony is not related to Mr. Van Meter’s
statistical analysis. Rather, her testimony relates to physician motivation, and specifically
the psychology of gifts and incentives on physician behavior, specifically a topic that Mr.
Van Meter did not purport to address.
Evidence regarding whether the physicians in this case believed that they were
influenced by the alleged kickbacks has been a recurring theme in this case, from one of
the first ophthalmologists presented in Plaintiffs’ case-in-chief to the final witnesses in
Defendants’ case. This evidence was not “new” or “unforeseen” evidence brought out in
Defendants’ case. See Marmo, 457 F.3d at 759. Dr. Fugh-Berman’s testimony could have
been presented in Plaintiffs’ case. Because it is not properly the subject of rebuttal,
Plaintiffs’ request to present Dr. Fugh-Berman’s testimony is denied.
C.

Kevin Johnson

Mr. Johnson is an attorney who was deposed regarding advice he gave Defendants
about Federal Aviation Administration rules and regulations.

4

Defendants presented

evidence in their case about FAA requirements. Plaintiffs assert that Mr. Johnson’s
presumably brief deposition testimony is in rebuttal to that new information.
Defendants oppose the request, arguing that Plaintiffs could have presented Mr.
Johnson’s testimony during Plaintiffs’ case-in-chief. Defendants note that Plaintiffs also
elicited testimony regarding FAA regulations during the case-in-chief, asserting that the
testimony regarding FAA requirements during Defendants’ case was therefore not “new”
or “unforeseen.”
Given the disputed testimonial evidence regarding FAA requirements for private
charters, the Court finds that Mr. Johnson’s testimony is appropriate rebuttal testimony that
will assist the jury. Plaintiffs’ request to present Mr. Johnson’s deposition in rebuttal is
granted.
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
1.

Plaintiffs’ request to revise the kickbacks and false claims at issue, (Dkt.

945), is GRANTED.
2.

Plaintiffs’ request to present rebuttal testimony, (Dkt. 945), is GRANTED

IN PART AND DENIED IN PART as set forth above.

Dated: February 10, 2023

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

5