United States of America et al v. Staten Island University Hospital et al

Filing 140

ORDER re 136 , 137 : For the reasons stated herein, the Government is not required to produce Dr. Shaw's 2006 email Review. However, the Government is Ordered to produce the names of any Lederman patients whose charts were reviewed by Dr. Sha w as part of the 2006 email Review. Further, defendants are permitted to question Dr. Shaw concerning conversations he had with billing and coding personal in preparation of the 2006 email Review. So Ordered by Magistrate Judge Cheryl L. Pollak on 1/15/2013. (Klein, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------J(
UNITED STATES ex rei.
ELIZABETH M. RYAN,

MEMORANDUM
AND
ORDER

Plaintiff,
-against-

04 CV 2483 (JG)
STATEN ISLAND UNIVERSITY
HOSPITAL, et aI.,
Defendants.

-----------------------------------------------J(
On June 16,2004, plaintiff Elizabeth Ryan ("Ryan" or "relator") commenced this action
on behalf of the United States of America (the "Government"), pursuant to the mY. tam
provisions of the False Claims Act, 31 U.S.C. §§ 3729 et seq. ("FCA"), against Gilbert Lederman
("Dr. Lederman"), Gilbert Lederman, M.D., P.C. ("Lederman P.C.") (collectively, "defendants"
or "Lederman"), Staten Island University Hospital ("SIUH" or the "Hospital"), and Philip Jay
Silverman. I Plaintiff Ryan's Complaint alleges six causes of action arising out of defendants'
alleged false statements and false claims regarding defendants' administration of stereotactic
body radiosurgery ("BRS"), a method of radiation treatment for cancer patients.
On October 12,2012, the Lederman defendants submitted a letter motion ("Defs.' Mot.")
in support of their request to obtain discovery of two emails provided to the Government by the
Government's rebuttal radiation oncology expert, Dr. Edward Shaw ("Dr. Shaw"), in which Dr.
Shaw summarized his review of patient files conducted in 2006 (the "2006 email Review").

IOn September 10, 2008, plaintiffs entered into a settlement agreement with SIUH, which
resolved all of plaintiffs' claims against the Hospital. (Docket # 30). After the settlement
agreement was executed, a Notice of Voluntary Dismissal of plaintiffs' claims against SIUH was
entered on August 7,2009. (Docket # 61).
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Defendants also sought to question Dr. Shaw concerning conversations he had with billing and
coding personnel at SIUH in preparation of the 2006 email Review. Although Dr. Shaw has
produced an expert report (the "2012 Report") detailing the topics and opinions for which the
Government intends to call him as a witness in the case against the Lederman defendants,
defendants, in their motion, contend that Dr. Shaw's 2006 email Review "involve[d] the identical
parties and issues." (Defs.' Mot. at 2). Defendants argue that the 2006 email Review is
"discoverable since it goes directly to the witness's experience and knowledge of the issues of
the subsequent" 2012 Report submitted by Dr. Shaw. (Id.) Further, defendants claim that "the
discussions and information exchanged with the professional biller and department head affected
[Dr. Shaw's] opinions concerning the billing and coding conclusions he reached [in the 2012
Report]." (Id.)
In response, the Government asserts that, in 2006, Dr. Shaw was retained only to assist in
an investigation of allegations that defendant SIUH had submitted false claims to Part A of the
Medicare program for reimbursement related to the provision ofBRS. (PI.'s Resp.2 at 1-2). The
Government claims that Dr. Shaw was engaged at that time "for the limited purposes of
analyzing the frequency and dollar amount of the bills submitted to Medicare Part A for technical
hospital services only" and that "his current role as a rebuttal expert did not rely at all on [this]
earlier involvement in the case." (Id. at 2). Further, according to the Government, of the 300
Lederman Claim Patients, only one is "among the sample of SIUH Billing Claims reviewed by
Dr. Shaw in 2006." (Id.) The Government also asserts that the 2006 email Review is protected

2Citations to "PI. 's Resp." refer to the Government's Letter in Response to Defendants'
Letter Motion, dated November 8, 2012.
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from disclosure by the work product privilege under Federal Rule of Civil Procedure 26. (PI.'s
Resp. at 3).
On December 6,2012, the Court Ordered the Government to produce the 2006 email
Review for in camera inspection so the Court could determine the extent to which the 2012
Report contains all of the facts and data upon which Dr. Shaw relied in forming the opinions he
will express as a witness in this case.
Having inspected the 2006 email Review and compared it with the 2012 Report, the
Court finds that the 2006 email Review is protected work product and need not be disclosed. As
discussed at greater length in the Court's December 6, 2012 Order, materials prepared by or at
the request of an attorney in anticipation of litigation, including communications between experts
and lawyers and drafts of expert reports or disclosures, are generally not subject to discovery.
See Fed. R. Civ. P. 26. Such communications may be disclosed, however, where the
communications identify facts, data, or assumptions provided by the attorney and considered by
the expert in forming the opinions to be expressed or where the communications relate to expert
compensation. Fed. R. Civ. P. 26(b)(4)(C). Here, the 2006 email Review is not comprised of
facts, data, or assumptions considered by Dr. Shaw in forming the opinions about which he will
be testifying, because the 2006 email Review relates to a different set of medical charts than the
charts that form the basis of the 2012 Report and about which Dr. Shaw will testify. Moreover,
the 2006 email Review focuses on issues related to the Government's claims against SIUH and
not the Lederman defendants.
However, the Court finds that, to the extent that Dr. Shaw reviewed the records of any
patients treated by Dr. Lederman or Lederman P.C. when preparing the 2006 email Review, his
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exposure to these records may have influenced his views about whether the Lederman defendants
prescribed medically unnecessary treatment to their patients or submitted improper billing codes
to Medicare. As such, Dr. Shaw's knowledge about Lederman patients' charts, gained during the
Government's consultation with him in 2006, may have provided factual background which
colored the testimony that Dr. Shaw will proffer in the Government's case against the Lederman
defendants. Since it is undisputed that Dr. Shaw, as a retained expert, must disclose the basis and
reasons for the opinions he will express and the facts or data considered in forming them, see
Fed. R. Civ. P. 26(a), the Government is Ordered to provide the names of any Lederman patients
whose charts were reviewed by Dr. Shaw as part of the 2006 email Review.
The Court notes that, while the Government has claimed that only one of the 300
Lederman Claim Patients is among the sample of SIUH billing claims reviewed by Dr. Shaw in
2006, Dr. Shaw's own deposition testimony seems to contradict this contention. For example,
when asked about the 2006 email Review, Dr. Shaw testified that the Government provided him
with medical records "which included professional notes from Dr. Lederman and his colleagues."
(Shaw Dep.3 at 26 ~~ 12-21). Accordingly, the Government is directed to ensure that it provides
the names of any patients treated by Dr. Lederman or Lederman P.C. whose charts were reviewed
by Dr. Shaw in 2006 and to submit a sworn statement to that effect.
Similarly, while Dr. Shaw's conversations with SIUH personnel regarding billing and
coding practices may have been limited to the practices and coding procedures of the Hospital,
defendants are entitled to learn whether the SIUH personnel provided any information to Dr.

3Citations to "Shaw Dep." refer to the deposition of Dr. Shaw, an excerpt of which was
attached as Exhibit B to the Government's Response to the Lederman Defendant's October 12,
2012 motion.
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Shaw about Dr. Lederman's or Lederman P.C. 's billing and coding practices since the Lederman
defendants were affiliated with the Hospital and performed procedures for which the Hospital
also submitted charges. Therefore, defendants are permitted to question Dr. Shaw concerning
conversations he had with billing and coding personnel at SIUH in preparation of the 2006 email
Review.

SO ORDERED.
Dated: Brooklyn, New York
January 15,2013

/s/ Cheryl L. Pollak
Cheryl . Pollak
United tates Magistrate Judge
Easte District of New York

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