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

Filing 148

DISCOVERY DISPUTE CONFERENCE ORDER. Signed by Magistrate Judge Mark R. Abel on 2/16/2014. (Abel, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

United States of America, ex rel. Kevin
P. McDonough,

:
:

Civil Action 2:08-cv-00114

:

Judge Marbley

:

Magistrate Judge Abel

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

:
:

Defendants
:

Discovery Dispute Conference Order
On February 6, 20 14, counsel for the parties participated in a telephone discovery dispute conference with the Magistrate Judge regarding the affidavit of John
Snyder and the declaration of Margaret Sanderson. During the conference, the following rulings were made.
Snyder affidavit. Relator offers John Snyder’s affidavit as evidence of factual
differences between providing mobile x-ray services at a prison versus a skilled nursing
facility. His affidavit asserts that prison x-rays are taken in one room, with the prisoners
grouped together for the x-rays. Prisoners are mostly able bodied and do not need
assistance getting their bodies in position for x-rays. Typically all x-rays can be performed in one trip. Billing is simply to the state prison agency.
In contrast, skilled nursing facility x-rays are performed as needed, often result-

ing in multiple trips during a week to the facility. Billing is to Medicare, Medicaid, and
private insurers.
Snyder also asserts that the advent of digital radiology has increased the costs of
entering the business of providing mobile x-ray services. Film x-ray machines could be
purchased for $6,000 to $8,000, and they would last up to 15 years. Digital systems cost
approximately $80,000. The system requires the purchase of extended warranty coverage, a system for storing digital images and disaster recovery of those images, and
online ordering and viewing. There are more rigorous state paperwork and inspection
regulations for portable x-ray providers.
Defendants argue that the Snyder affidavit should be excluded because it is not
signed and because he was not disclosed as an expert. Each argument is considered
below.
Unsigned. Relator’s counsel represented that an unsigned rather than the signed
version of the affidavit was filed due to a clerical error. Relator has always been prepared to file the signed affidavit, but did not to do so while awaiting judicial resolution of
this dispute. I accept those representations. It is ORDERED that relator file the signed
version of the affidavit that was inadvertently not submitted with the original filing.
Untimely expert opinion. Relator argues that the affidavit should be stricken
because it expresses expert opinions and Snyder did not make timely Rule 26(a)(2)
disclosures. However, relator persuasively argues that he was not aware that defendants would argue that the provision of mobile x-ray services to prisons is comparable to
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providing those services to skilled nursing facilities.
As defendants argue, once their experts’ opinions were disclosed, relator could
have retained rebuttal experts but did not do so. Consequently, Snyder may not offer
expert opinions. However, I view his affidavit as mainly making factual assertions relevant to whether the provision of mobile expert services to prisons and skilled nursing
facilities are comparable and to the costs of entry into the mobile x-ray services business. Relator had no obligation to disclose Snyder as a fact witness because he did not
foresee that these facts would be at issue for trial.
It is ORDERED that counsel consult and reach agreement as to an amended
affidavit by Snyder limited solely to facts put at issue by defendants’ experts’ reports.
Failing to reach agreement, counsel are DIRECTED to call my office (614.719.3370) to
schedule a telephone conference to resolve the dispute.
Sanderson declaration. Margaret Sanderson is Mobilex’s Manager of Sales
Administration. Her affidavit authenticates “win-loss” summaries offered to support
defendants’ motion for summary judgment. Relator offered to withdraw his motion to
strike if defendants would agree that the declaration be amended to omit the phrase “in
competitive bidding”. Defendants agreed to the amendment. The admissibility of those
summaries under Evid. Rule 902(11) is a question for Judge Marbley.

s/Mark R. Abel
Unitd States Magistrate Judge

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