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

Filing 87

MEMORANDUM AND ORDER re: 66 MOTION for Ruling on Defendants' Motion Regarding Standard of Proof filed by Defendant Sonjay Fonn, Defendant Midwest Neurosurgeons, LLC motion is DENIED. Signed by District Judge Audrey G. Fleissig on 11/6/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

UNITED STATES ex rel PAUL
CAIRNS, et al.,

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Plaintiff,
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v.
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D.S. MEDICAL LLC, MIDWEST
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FAMILY CARE, LLC, and MIDWEST )
NEUROSURGEONS, LLC,
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Defendants.
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Case No. 1:12CV00004 AGF

MEMORANDUM AND ORDER
This qui tam action in which the United States intervened, is brought under the
False Claims Act, 31 U.S.C. § 3729-33. The United States claims that Defendants
violated the False Claims Act by submitting to the United States claims for payment that
were false because they violated the federal criminal Anti-Kickback Statute, 42 U.S.C. §
1320a-7b(b). The matter is now before the Court on Defendants’ motion for a
determination by the Court as to what burden of proof will govern this case, and more
specifically, for a determination that the United States must prove the underlying AntiKickback Statute violation beyond a reasonable doubt, or at least by clear and convincing
evidence. The United States argues that the preponderance of the evidence standard
applies.

In order to establish a violation of the False Claims Act, a plaintiff must show that:
(1) there was a false statement or fraudulent course of conduct; (2) made or carried out
with the requisite scienter; (3) that was material; and (4) that caused the government to
pay out money or to forfeit moneys due. United States ex rel. Longhi v. Lithium Power
Tech. Inc., 575 F.3d 458, 467 (5th Cir. 2009) (citing United States ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)). Section 3731(d) of the
False Claims Act provides that the United States must “prove all essential elements of the
cause of action, including damages, by a preponderance of the evidence.” 31 U.S.C.
§ 3731(d).
This Court will follow the rulings of other district courts that have applied the
preponderance of evidence standard to False Claims Act claims based on violations of the
Anti-Kickback Statute. See United States v. Campbell, No. 08-1951, 2011 WL 43013, at
*5 (D.N.J. Jan.4, 2011); United States v. Rogan, 459 F.Supp.2d 697, 716 n.12 (N.D. Ill.
2006) (noting that “the criminality of predicate offenses in an underlying statute . . . does
not mandate a higher burden of proof in a civil case”); see also Sidema, S.P.R.L v. Imrex
Co., 473 U.S. 479, 491 (1985) (applying a preponderance standard in a civil RICO case
predicated on violations of criminal statues, explaining that “[i]n a number of settings,
conduct that can be punished as criminal only upon proof beyond a reasonable doubt will
support civil sanctions under a preponderance standard”).

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Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for a determination that the
United States must prove beyond a reasonable doubt or by clear and convincing evidence
that Defendants violated the Anti-Kickback Statute is DENIED. (Doc. No. 66.)

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 6th day of November, 2014.

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