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

Filing 338

MEMORANDUM AND ORDER re: 271 MOTION in Limine to Exclude Reference to Evidence Contradicting Plaintiff's Evidence Concerning Amounts of Medicare and Medicaid Reimbursement filed by Plaintiff United States of America. IT IS HEREBY ORDERED that government's motion to preclude reference by Defendants to evidence contradicting the government's evidence regarding the amounts of Medicare/ Medicaid payments involved in the case is DENIED. ECF No. 271. Signed by District Judge Audrey G. Fleissig on 10/4/17. (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 premised on Medicare and
Medicaid fraud. Now before the Court is the government’s motion in limine to
preclude reference by Defendants to evidence contradicting the government’s evidence
regarding the amounts of Medicare/ Medicaid payments at issue in the case. For the
reasons stated below, this motion will be denied.
The government asserts that throughout discovery, it provided Defendants with
discs containing raw data concerning the claims for reimbursement at issue – data
acquired from government records via the “STARS” database, as well as data obtained
by the Missouri Medicaid Fraud Control Unit. The government further asserts that as it
narrowed the raw data and prepared summary charts of the claims it believes are at
issue, it provided these charts to Defendants. These same charts were submitted to the
Court in support of the government’s motion for partial summary judgment and
amended motion for partial summary judgment. The government maintains that it

“repeatedly propounded discovery requests seeking any information [Defendants] had
concerning the accuracy and completeness of the Medicare and Medicaid claims data
produced to them by the government during discovery,” requests that Defendants
responded were overly broad and unduly burdensome. The government never moved
for an order to compel production of such evidence from Defendants. In the motion
under consideration, the government argues that because Defendants did not produce
during discovery any contrary evidence showing that the claims included in the
government’s data were not submitted or that the payment amounts contained in the
data were incorrect, Defendants should be precluded from attempting to introduce such
evidence at trial.
By Memorandum and Order dated October 3, 2017, the Court denied the
government’s amended motion for partial summary judgment under Federal Rule of
56(g) that sought to have the Court decide prior to trial what claims were submitted (or
caused to be submitted) by Defendants to Medicare/Medicaid for reimbursement during
the relevant time period, and the amounts paid on the claims.
This Court agrees with Defendants that the government’s present motion is
procedurally improper in light of the fact that, as noted above, it never filed a motion
compel discovery on the matter at issue. See, e.g., Boeing Co. v. KB Yuzhnoye, No.
CV1300730ABAJWX, 2015 WL 12803452, at *8 (C.D. Cal. Nov. 3, 2015) (“If
[Defendants] wanted more information than what Plaintiffs provided, they should have
sought that information through a motion to compel . . . during discovery; because
[they] failed to do so, the Court will not now exclude this evidence on the eve of trial by
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way of a motion in limine.”); Harbor Ins. Co. v. Cont’l Bank Corp., No. 85 C 7081,
1991 WL 222260, at *8 n.3 (N.D. Ill. Oct. 25, 1991) (holding that as a result of the
plaintiffs’ failure to utilize the methods provided by the Federal Rules to compel the
defendant’s expert to answer questions at his deposition on his qualifications, the
plaintiffs could not seek to exclude the expert’s testimony by means of a motion in
limine on the ground that they were prevented from effectively cross-examining the
expert on his qualifications during his deposition).
As noted in the Court’s October 3, 2017 Memorandum and Order, the
government will have to prove at trial the facts underlying its claims against
Defendants, including the submission (or causing the submission) of the
Medicare/Medicaid reimbursement claims at issue. Defendants will be permitted to
challenge the government’s evidence on any valid grounds.
Accordingly,
IT IS HEREBY ORDERED that government’s motion to preclude reference by
Defendants to evidence contradicting the government’s evidence regarding the amounts
of Medicare/ Medicaid payments involved in the case is DENIED. ECF No. 271.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of October, 2017.

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