United States of America et al v. Symphony Diagnostic Services, Inc. et al

Filing 100

Discovery Dispute Conference Order: Plaintiff's 10/18/2013 Motion 97 to Compel is DENIED. Signed by Magistrate Judge Mark R. Abel on 10/30/2013. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
United States ex rel. Kevin
McDonough,

:
:

Civil Action 2:08-cv-0114

:

Judge Marbley

:

Magistrate Judge Abel

Plaintiff
v.
Symphony Diagnostic Services and
Symphony Diagnostic Services No. 1,
d/b/a Mobilex U.S.A.,

:
:

Defendants
:

Discovery Dispute Conference Order
On October 28, 2013, counsel for the parties participated in a telephone discovery
dispute conference with the Magistrate Judge for decision on plaintiff’s October 18, 2013
motion to compel discovery (doc. 97).
Cause of action. This is a qui tam lawsuit brought under the federal False Claims
Act (“FCA”), 31 U.S.C. §§ 3279, et seq. Relator Kevin McDonough alleges that Mobilex, a
pro-vider of mobile x-ray services, violated the FCA by engaging in “swapping
arrangements” that offered substantial, below-cost discounts to skilled nursing facilities
(“SNFs”) for x-ray services provided their Medicare Part A patients in exchange for
referrals of the SNFs’ Medicare and Medicaid service needs. Portable x-ray services to SNF
patients under Medicare Part A are covered by the nursing home’s per diem, per-patient
Medicare Part A reimbursements. Mobilex bills Medicare and other publicly funded
health insurance pro-grams directly for services to patients under Medicare Part B. This

practice constitutes illegal kickbacks or “swapping under the federal Anti-Kickback
Statute, 42 U.S.C. § 1320a-7b.
David Yarin’s expert report and the database on which he relied. Mobilex hired
health care consultant David Yarin to analyze Mobilex’s Part A facility charges and Part B
carrier payments. Defendants’ counsel asked Yarin to prepare an expert report quantifying Mobilex’s revenues attributable to Medicare Part A and Part B patients, and comparing Mobilex’s average Part A charges per test and per patient encounter to Mobilex’s
average cost per test and per patient encounter. Mobilex provided Yarin with 11 years of
Mobilex’s raw facility charge data and eight years of raw Medicare carrier payment data.
The same data was provided to relator McDonough’s counsel.
Yarin managed and relied upon technical experts from his consulting firm in performing his analyses. They collected the raw data in the .txt file format and imported some
of the raw data directly into a SQL database. Then they wrote scripts to convert the data
into a usable format. Next they wrote scripts in the Python programming language and
applied them to the remainder of the data to generate output files. The output files were
loaded into the SQL database, where they were combined with the data that had been
imported directly into the database. The technical experts from Yarin’s firm then validated the data in the SQL database. Next they wrote scripts (queries) in the SQL programming language, following general parameters set by Yarin, they then used to generate the
figures contained in his report. They also performed quality control reviews of these
figures. Yarin is not a SQL or Python programmer.
Yarin did not draft any of the scripts or directly implement the data validation or
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quality control measures. His role was to oversee the technical experts’ work by establishing project requirements, making decision on scope, and ensuring that they performed
their work to his expectations.
Mobilex further asserts that the volume of data was so great that the cost of the
project was substantial: approximately $193,738.
Mobilex and Yarin have produced the following materials:
• The voluminous, nonpublic documents listed on Yarin’s materials considered
list, including all of the raw Mobilex data used to create the SQL database;
• The raw Mobilex data for the subset of 348 facilities which the Court asked
Mobilex to extract from the larger data set and provide to McDonough’s counsel
as an accommodation to simplify their data analysis;
• Nonprivileged communications (e.g., emails) between Yarin and Mobilex or
Mobilex’s counsel in connection with his reports;
• Nonprivileged communications (e.g., emails) between Yarin and his FTI
colleagues in connection with his reports; and
• Nonprivileged notes prepared by Yarin in connection with his reports.
Mobilex and Yarin are also willing to make him available for deposition with realtime laptop access to the SQL database for his use during cross-examination. A technical expert
will be present to assist Yarin in querying the database.
Mobilex and Yarin have not produced the SQL database, Python scripts, SQL
scripts, Excel files, or output files. They have produced reference files identified by Yarin
in his report, Yarin’s notes, and cash payment and P&L reports.
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Although Yarin will be able to query the database during his deposition, as I
understand it, a specific query can be made only if a script is available. That might limit
relator’s counsel’s ability to cross-examine him. For example, Yarin’s report contains
averages, while relator’s counsel say they want to know the highest and lowest price/cost
for services provided a specific SNF or group of SNFs.
Decision. My decision is driven primarily by Mobilex’s investment in the database
and relator’s decision not to share the cost of that database or invest in creating his own. It
simply seems unfair for a party to hold back, then come in the backdoor and demand an
opposing party’s work product.
While I have concerns about whether the opinions reached by querying the database are admissible without testimony from the technical experts about its creation and
integrity and about whether relator’s counsel can effectively cross-examine Yarin, I am not
presently convinced that relator’s counsel will be unable to effectively conduct the crossexamination. If the deposition transcript demonstrates that relator’s inability to access the
database prevented a meaningful examination of Yarin, I am willing to revisit the issue.
Plaintiff’s October 18, 2013 motion to compel discovery (doc. 97) is DENIED.

s/Mark R. Abel
United States Magistrate Judge

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