United States of America ex rel. et al v. D.S. Medical LLC et al
Filing
96
MEMORANDUM AND ORDER re: 62 MOTION to Strike and Memorandum in Support filed by Deborah Seeger, D.S. Medical LLC, Defendant Sonjay Fonn, Defendant Midwest Neurosurgeons, LLC. IT IS HEREBY ORDERED that Defendants' Motion to Strike portions of the Complaint in Intervention is DENIED. (Doc. No. 62.) Signed by District Judge Audrey G. Fleissig on 1/21/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
UNITED STATES ex rel PAUL
CAIRNS, et al.,
Plaintiff,
v.
D.S. MEDICAL LLC, et al.,
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 (“FCA”), 31 U.S.C. § 3729-33. The United States claims that
Defendants violated the FCA by submitting to the United States claims for payment that
were false because they violated the federal criminal Anti-Kickback Statute (“AKS”), 42
U.S.C. § 1320a-7b(b).1 The case involves an alleged scheme whereby Defendants treated
patients with spinal implant devices in exchange for illegal monetary payments from the
device manufacturers, and thereafter submitted and/or caused to be submitted false claims
to Medicaid and Medicare in violation of federal law. Defendants now move (Doc. No.
62) to strike certain portions of the Complaint in Intervention, under Federal Rule of
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Pursuant to an Order entered on October 6, 2014 (Doc. No. 75), this was stayed
for six months, with the exception of certain pending motions, including Defendants’
present motion to strike.
Civil Procedure 12(f), which permits a court to strike “any redundant, immaterial,
impertinent, or scandalous matter.”
Defendants move to strike five portions of the Complaint in Intervention:
Paragraph 10, which sets forth the legal citations and legislative history of the AKS;
Paragraphs 46-49, which detail certain business operations of Defendant D.S. Medical
LLC; Paragraph 55 through the first sentence of Paragraph 58, regarding a dispute
between Defendants and a manufacturer of medical implants; Paragraphs 62-64 and
Paragraph 66, detailing statements made concerning the frequency with which Defendant
Sonjay Fonn, M.D., utilized spinal implants with his patients; and a portion of Paragraph
9, which states that no proof of specific intent is required to show “knowledge” under the
FCA.
Federal Rule of Civil Procedure 12(f) grants courts discretion to strike any matter
it finds redundant, immaterial, impertinent, or scandalous. While the language of Rule
12(f) is permissive, striking a party’s pleadings is considered an extreme measure and one
not frequently granted. Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000)
(citing Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)). None of the
challenged portions of the Complaint in Intervention are sufficiently improper to
necessitate striking.
First, the legislative history of the AKS is relevant in providing context for the
government’s claims. As Defendants’ motion to strike fails to identify specific language
that is inaccurate, there is insufficient justification for striking Paragraph 10. Further,
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Defendants’ business operations and division of responsibilities are potentially material
to whether any violations of the AKS occurred, and neither Paragraphs 46-49 nor
Paragraphs 55-58 contain any language so scandalous that striking is justified. Moreover,
the utilization patterns of spinal implants may be material to detailing Defendants’
alleged kickback scheme. While the statements in Paragraphs 62-64 and 66 may not be
necessary components of the Complaint in Intervention, this does not justify striking
them. Finally, as the United States’ action was brought under the FCA, the knowledge
requirements of the statute, set forth in Paragraph 9, are relevant to the case. While the
Court will not give undue regard to any portion of the Complaint in Intervention, neither
will it strike material from it without strong justification for doing so.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Strike portions of the
Complaint in Intervention is DENIED. (Doc. No. 62.)
________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 21st day of January, 2015.
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