United States of America ex rel. et al v. D.S. Medical LLC et al

Filing 337

MEMORANDUM AND ORDER re: 252 Amended MOTION for Partial Summary Judgment filed by Plaintiff United States of America, 270 MOTION for Leave to File Supplemental Declarations in Support of Amended Motion for Partial Summary Judgment filed by Plaintiff United States of America. IT IS HEREBY ORDERED that government's motion for leave to file supplemental declarations in support of its amended motion for partial summary judgment is DENIED. ECF No. 270. IT IS FURTHER ORDERED that the government's amended motion for partial summary judgment is DENIED. ECF. No. 252. Signed by District Judge Audrey G. Fleissig on 10/3/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISOURI
SOUTHEASTERN DIVISION

UNITED STATES OF AMERICA,
ex rel. PAUL CAIRNS, et al.,
Plaintiff,
vs.
D.S. MEDICAL, L.L.C., et al.,
Defendants.

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Case No. 1:12CV00004 AGF

MEMORANDUM AND ORDER
This qui tam action under the False Claims Act is before the Court on the
government’s motion for leave to file supplemental declarations in support of its
amended motion for partial summary judgment pursuant to Federal Rule of Civil
Procedure 56(g). The amended motion for partial summary judgment was filed on May
30, 2017. It sought a Court Order deciding certain underlying factual issues in this
case, namely, that the four named Defendants individually and jointly, “arrang[ed],”
within the meaning of the Anti-Kickback Statute, for spinal devices to be purchased
through Defendant D.S. Medical for use in the 228 surgeries performed by Defendant
Dr. Sonjay Fonn at St. Francis Medical Center (“SFMC”), listed in a chart prepared by
Timothy Minden, Special Agent for the Department of HHS; and that Defendants
presented or caused to be presented, within the meaning of the False Claims Act, claims
to the federal Medicare program and the Missouri Medicaid program for payment for
the surgical devices, as shown on the chart. The motion was supported by a declaration

of Agent Minden describing how he prepared the chart in question.
By Memorandum and Order dated August 7, 2017, the Court granted
Defendants’ motion to strike the Agent Minden’s declaration, concluding that it was not
based on personal knowledge. ECF No. 262. The government filed the present motion
on August 17, 2017, but did not submit the five proposed supplemental declarations
(ECF No. 285-1 to 285-5) until September 7, 2017. Two of the proposed supplemental
declarations – one by a director/manager at the federal Centers for Medicare and
Medicaid Services (“CMS”) and one by the Program Manager for a contract between
CMS and General Dynamics Information Technology for the provision to CMS by
General Dynamics of “STARS,” a data analysis software application – establish the
following: CMS collects data from Medicare providers, such as doctors and hospitals,
who submit claims for payment. CMS compiles that data, including the amount paid
for each claim, in the Independent Data Repository (“IDR”). STARS makes that data
available to users.
A third proposed supplemental declaration is the Amended Declaration of Agent
Minden, stating that in May 2014, using STARS, he queried the IDR data for Medicare
Part A claims 1 submitted by SFMC and processed between March 2008 and April 2014,
in which Dr. Fonn was indicated as the operating physician. He asserts that he
produced the data returned from the query to Defendants during the course of this
litigation. He further asserts that he “filtered” the data to only include spinal surgeries
that were performed between November 24, 2008, and March 26, 2012, the
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Medicare Part A pays for inpatient hospital stays for Medicare beneficiaries.
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approximate dates Defendant D.S. Medical, LLC, was in operation. He then proceeds
to describe how he created the chart noted above, and related charts.
The two remaining proposed supplemental declarations are by investigators with
the Missouri Medicaid Fraud Control Unit, one by Elizabeth Emmerich and one by
Steve Diemler. Emmerich asserts that pursuant to a request by Agent Minden, she
asked Diemler for “institutional claims” to Missouri’s Medicaid program in which Dr.
Fonn was the attending physician concerning services provided between December 1,
2008, and March 31, 2012; that Diemler provided her with the information; and that she
in turn provided it to Agent Minden. Diemler confirms this in his declaration.
Defendants object to the government’s motion for leave on several grounds,
including that the naming of new declarants/witnesses at this late date is untimely, and
that the government did not provide Defendants with all of the relevant data underlying
the charts in question, such that the charts are not admissible under Federal Rule of
Evidence 1006.
Clearly, if the facts at issue would have been stipulated to by the parties, the
evidence at trial and the jury’s task would have been narrowed and simplified.
However, the parties were unable to reach any agreement on the matter, and the Court
is reluctant to invoke Rule 56(g) to accomplish this end, even if this would be a proper
use of the Rule under the circumstances presented here. This matter is set to go to trial
within the next few weeks, and pretrial materials have been filed. Thus, the motion for
partial summary judgment, as supported with supplemental affidavits, is untimely.
Moreover, in connection with the partial summary judgment requested, it appears that
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issues of fact exist with respect to at least some of the claims for reimbursement
submitted. The Court believes that the best course of action at this point is for the
government to prove the asserted facts with a proper foundation.
The Court does not mean to suggest that the government will be unable to
support its summary charts with custodians of the type identified in its proposed
supplemental declarations. To the extent Defendants assert that calling such custodians
or submitting proper proposed custodian affidavits would be a violation of Federal Rule
of Civil Procedure 26 disclosure requirements, the Court rejects that assertion.
Accordingly,
IT IS HEREBY ORDERED that government’s motion for leave to file
supplemental declarations in support of its amended motion for partial summary
judgment is DENIED. ECF No. 270.
IT IS FURTHER ORDERED that the government’s amended motion for
partial summary judgment is DENIED. ECF. No. 252.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of October, 2017.

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