United States of America et al v. Symphony Diagnostic Services, Inc. et al
Filing
189
ORDER granting 105 Sealed Defendants' Motion for Summary Judgment; denying 107 Sealed Relator's Motion for Partial Summary Judgment. This case is hereby dismissed. Signed by Judge Algenon L. Marbley on 8/12/2014. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA, ex rel.
KEVIN P. MCDONOUGH, et al.,
Plaintiff-Relator,
v.
SYMPHONY DIAGNOSTIC SERVICES,
INC., and SYMPHONY DIAGNOSTIC
SERVICES NO. 1, INC., d/b/a MOBILEX,
U.S.A., et al.,
Defendants.
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Case No. 2:08-CV-00114
JUDGE ALGENON L. MARBLEY
Magistrate Judge Abel
OPINION & ORDER
This matter is before the Court on the parties’ cross-motions for summary judgment.
Defendants Symphony Diagnostic Services, Inc., and Symphony Diagnostic Services, No. 1,
Inc., d/b/a Mobilex U.S.A. (collectively “Mobilex”) move for summary judgment in their favor
as to all claims, on the grounds that the Relator cannot show a genuine issue of material fact as to
the elements of remuneration, inducement, and scienter. (Doc. 105). Relator Kevin McDonough
seeks partial summary judgment in his favor as to the liability of Defendants for false claims
related to two particular facility contracts, as to the proper definition of “costs” under the
relevant statues, and as to Mobilex’s ninth affirmative defense. (Doc. 107).
For the reasons set forth herein, Defendants’ Motion is GRANTED; Plaintiff’s Motion is
DENIED. The case is hereby DISMISSED.
I.
BACKGROUND
This case concerns allegations that Mobilex has engaged in large-scale violations of the
False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”), by way of violations of the Anti-Kickback
Statute, 42 U.S.C. § 1320a-7b (“AKS”). Mobilex is the largest provider of mobile, on-site x-ray
and other diagnostic services in the United States. Its customers are various institutions that
provide health care, including long-term acute care hospitals, prisons, and, particularly relevant
here, skilled nursing facilities (“SNFs”). SNFs typically have patients covered under both Part A
and Part B of Medicare, as well as under private insurance. For the vast majority of its contracts,
Mobilex is the only provider of mobile x-ray services at that SNF. (Dep. of William Glynn of
Nov. 2, 2012 (“Glynn I”), Doc. 105-5, at 66:6-10). In short, Relator alleges that Mobilex priced
its Part A services impermissibly low in order to get Part B business, violating the AKS.
Generally, 40% of Mobilex’s SNF patients are covered through Medicare Part A, 40%
through Part B, and 20% through private health care coverage or other types of insurance. (Dep.
of William Glynn of June 27, 2013 (“Glynn II”), Doc. 105-4, at 11:8-12:16). Mobilex often
learns what sort of insurance an individual is covered by only after providing services to the
patient. (Glynn I at 41:2-5, 1037-23, 145-46). For patients covered under Part A, Mobilex bills
the SNFs directly, which pay Mobilex at rates established by negotiated contracts between
Mobilex and the SNFs. Centers for Medicare & Medicaid Servs. (“CMS”) Pub. 100-4, ch. 13 §
20.2.1 (Rev. 2750, Aug. 2, 2013); id. at ch. 6, § 10.4 (Rev. 2573, Oct. 26, 2012). The SNFs in
turn submit their own claims for payment to Medicare. Id. at ch. 13, § 20.2.1 (Rev. 2750, Aug.
2, 2013). Medicare then pays the SNFs at a per diem rate, which is expected to cover all of the
SNFs’ costs, including room and board, laboratory costs, nursing, etc. 42 C.F.R. § 413.1(g). For
patients covered under Part B, Mobilex bills the Medicare program directly. CMS Pub. 100-04,
Ch. 7, § 50 (Rev. 1472, Mar. 6, 2008). Medicare then pays Mobilex at rates set by the
government and published in the Medicare Fee Schedule (“MFS”) for each state. Id. at ch. 13,
§§ 10.1, 90 (Rev. 2750, Aug. 2, 2013).
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Often, Medicare Part B rates are higher than the Part A rates, since the Part B rates are set
unilaterally, rather than through negotiation by the SNFs as with Part A. Accordingly, there is
the possibility that a provider might attempt to secure a contract with a SNF by offering Part A
services at deep discount, or even below-cost, in order to have access to the more lucrative Part
B business, an arrangement referred to as “swapping.” Relator acknowledges that “Mobilex’s
intent is always to follow the Medicare rules regarding the Antikickback Statute,” (Relator’s
Statement of Undisputed Facts, Doc. 107-2, ¶ 107) (citing Glynn II at 33:24-34:1), and that
Mobilex “intends to make money on the Part A” contracts standing alone, without regard to the
value of any swapping (id., ¶¶ 41, 47-48, 57) (citing Glynn I at 83:8-84:5). Both parties also
agree that Mobilex seeks always to price its contracts, both for Part A and Part B, above
Mobilex’s cost to perform the service. (Id., ¶ 40) (citing Glynn I at 57:19-25; 59:12-14).
Relator nevertheless asserts that Mobilex has violated the AKS by pricing its Part A
services below costs, as “costs” is defined by his expert. Mobilex tracks the revenues and costs
of its Part A services “per patient encounter,” meaning the number of times a patient was seen.
(Id., ¶ 49) (citing Glynn I at 157:21-25, 158:1-8, 86:4-22). Mobilex’s method of calculating
costs, however, includes only its “direct costs” of performing the service, and some “indirect
costs”; it does not include “overhead costs” in its method of accounting. (Id., ¶ 58). (citing
Glynn II at 98:8-15). Moreover, when negotiating a new contract, Mobilex typically does not
consider an SNF-specific “cost to serve,” since, according to Mobilex, such costs could vary
greatly from day to day, depending on patient volume, SNF proximity to other facilities, seasonal
demands, and since Mobilex might never have served that SNF before. (Mobilex’s Mot. for Sum.
J., Doc. 105-1, at 12).
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Relator insists, and asks this Court so to rule, that the only proper measure of costs is
“total costs” or “fully loaded costs,” meaning that “costs” “must be construed to include both
variable . . . and fixed expenses,” including “costs related to providing the service and running a
company’s operations, including those costs allocated from regional or corporate headquarters.”
(Relator’s Mot. for Summ. J., Doc. 107-1, at 15). If Mobilex’s costs were properly computed
under this definition, Relator asserts, it would be clear that Mobilex is pricing its Part A services
“below cost,” while also receiving Part B business, thus violating the AKS.
Both parties1 agree that the Court can resolve this issue as a matter of law. (See
Mobilex’s Reply, Doc. 131 at 5; Relator’s Mot., Doc. 107-1 at 17). Because the Court concludes
that Relator’s preferred “fully loaded costs” metric is not the only permissible measure of costs
under the AKS, however, summary judgment for Defendants on all counts is appropriate.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it
“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United
States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, (1986)). The nonmoving party must then present “significant probative evidence” to
show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The suggestion of a mere
possibility of a factual dispute is insufficient to defeat a motion for summary judgment. See
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Although Relator’s briefing suggests that a ruling on this issue is appropriate as a pure matter of law, at oral
argument Relator’s counsel retreated from this position, arguing instead that his expert’s method of calculating costs
is mandated in this case as a matter of both law and fact. In any case, both Relator and Mobilex argue that this issue
can be decided on summary judgment.
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Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley
Co., 801 F.2d 859, 863 (6th Cir. 1986)). Summary judgment is inappropriate, however, “if the
dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The mere existence of a scintilla of evidence in support
of the opposing party's position will be insufficient to survive the motion; there must be evidence
on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251;
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).
The standard of review for cross-motions for summary judgment “does not differ from
the standard applied when a motion is filed by only one party to the litigation.” Sierra
Brokerage Servs., 712 F.3d at 327.
III.
ANALYSIS
The FCA creates civil liability for any person who “knowingly presents, or causes to be
presented” to the government a “false or fraudulent claim for payment or approval.” 31 U.S.C. §
3729(a)(1). The FCA also bars false or fraudulent record or statement to get claim paid or
approved by the government. Id. § 3729(a)(2). Relator argues that Mobilex runs afoul of the
FCA by violating the AKS, since its services were allegedly “rendered to patients unlawfully
referred to Mobilex by nursing homes to whom Mobilex provided kickbacks and/or illegal
remuneration.” (Am. Compl., Doc. 36, ¶ 109).
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The AKS, a criminal statute, makes it illegal for a person to “knowingly and willfully
offer[] or pay[] any remuneration (including any kickback, bribe, or rebate) directly or indirectly,
overtly or covertly, in cash or in kind to any person to induce such person to purchase, lease,
order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service,
or item for which payment may be made in whole or in part under a Federal health care
program.” 42 U.S.C. § 1320a-7b(b)(2)(B). The law does not criminalize referrals; rather, it
criminalizes “knowing and willful acceptance of remuneration in return for such referrals.”
Klaczak v. Consol. Med. Transp., 458 F. Supp. 2d 622, 678 (N.D. Ill. 2006).
To prove a violation of the AKS, Realtor must show: (1) remuneration offered or paid;
(2) in order to induce the referral of government healthcare business; (3) done “knowingly and
willfully.” 42 U.S.C. § 1320a-7b(b)(2)(B).
A.
Relator’s Remuneration and Inducement Logic
“Remuneration” can be “anything of value,” Klaczak, 458 F. Supp. 2d at 678, and Relator
contends that in this case, “the significant cost savings in the form of discounts offered to the
Mobilex SNFs is remuneration” (Doc. 107-1 at 12). The “gravamen of Medicare fraud is
inducement,” Polk County, Tex. v. Peters, 800 F. Supp. 1451, 1455 (E.D. Tex. 1992), but Relator
lacks any direct evidence such as emails, memos, comments, or other indications of inducement
in the form of conventional bribery or kickbacks. Compare Klaczak, 458 F. Supp. 2d at 680
(“Relators have not set forth any evidence specifically concerning the state of mind or intent of
any of the relevant agents . . . For example, there is not a single comment, email, memo, or other
indication . . . that suggests the [Defendants] . . . . were knowing and willful participants in any
kickback scheme. Relators have thus been forced to attempt to establish a trial-worthy record of
illicit scienter circumstantially.”).
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Relator, therefore, like the relators in Klaczak, attempts to show inducement
circumstantially, through a chain of logical inferences, that: (1) Mobilex was the exclusive
provider both Part A and Part B services at most SNFs; (2) Mobilex provided its Part A services
below “cost”; (3) such below-cost pricing was a discount in order to induce referrals of Part B
business; (4) Mobilex offered such inducements “knowingly” since it knew, or purposefully
blinded itself to knowing, that its prices were below cost. (Relator’s Reply Br., Doc. 118-1 at
39). In sum, Relator argues that “the contracts were so low that the only reasonable inference to
draw” is that Mobilex was offering remuneration in exchange for referrals. See Klaczak 458 F.
Supp. 2d at 680.
Mobilex counters that its prices were in fact at or above “fair-market value” (“FMV”),
defined as “the price a willing buyer would pay a willing seller . . . when neither is under
compulsion to buy or sell.” Id. at 678. Mobilex argues, citing Klaczak, that FMV is often used
as the “gauge of value when assessing the remuneration element of the offense” in the AKS
context. Id.; see also United States ex rel. Jamison v. McKesson Corp., 900 F. Supp. 2d 683, 699
(N.D. Miss. 2012) (“In the context of the AKS, courts use ‘fair market value’ as the gauge of
value.”). In this case, Mobilex concludes, it has offered extensive evidence that the mobile x-ray
services market is highly competitive, and that its negotiated rates reflect that competition;
accordingly, its rates are, “by definition,” FMV. (Doc. 105-1 at 34). Mobilex adds that Relator
has “not even tried to do a competitive market analysis in this case,” which would be necessary
to show that Mobilex priced below FMV. (Id.).
Relator takes issue with Mobilex’s eagerness to use FMV as the litmus test for
remuneration. To do so, he argues, is to “construe the AKS [too] narrowly,” and neither of the
leading cases on “swapping” under the AKS require such a conclusion. (Relator’s Resp. Br.,
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Doc. 118-1 at 14). Instead, Relator emphasizes that remuneration can be “anything of value in
any form whatsoever,” 56 Fed. Reg. 35952, 35958 (1991), including, as here, when a provider
offers services below costs. (Doc. 118-1 at 21-22); see, e.g., United States ex rel. Fry v. Health
Alliance, No. 1:03-CV-00167, 2008 WL 5282139, at *7-8 (S.D. Ohio Dec. 18, 2008) (finding
that scheduling doctors time to work at a hospital “heart station,” whereby they are provided with
a “stream of patients,” could be considered remuneration under the AKS, since “[g]iving a
person an opportunity to earn money may well be an inducement.”).
Relator also insists that using FMV as a benchmark for remuneration is suspect since, as
the Department of Health & Human Services Office of Inspector General (“OIG”) has explained,
“‘fair market value’ must reflect an arms-length transaction which has not been adjusted to
include the additional value . . . attributed to the referral business between [the parties].” OIG
Special Fraud Alert, 59 Fed. Reg. 65372 (Dec. 19, 1994); see also 42 C.F.R. § 411.351 (2006)
(noting that FMV should be the “result of bona fide bargaining between well-informed buyers
and sellers who are not otherwise in a position to generate business for the other party.”).
The Court notes that, in this case, Mobilex is by far the largest provider of mobile
diagnostic services in the United States. (Defs’ Mot., Doc. 105-1, at 8). It is in fact so large that,
as counsel conceded at oral argument, its ability to influence the markets in which it participates
is non-trivial. Indeed, the Court is troubled to consider the possibility that Mobilex is large
enough that it effectively makes the market in which it participates, meaning that any
consideration of FMV would be skewed by Mobilex’s ability to set market rates.
But even accepting that FMV is not the proper test for remuneration in this case,
Relator’s argument still depends on this Court accepting that his method of calculating cost is the
only acceptable way to determine whether a discount was provided. See Klaczak, 458 F. Supp.
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2d at 681 (“Relator[‘s] circumstantial proof must at least meaningfully discredit other, valid
justifications for the contracts,” such that “the only reasonable inference from the ‘low’ contract
rates . . . is that the [] Defendants knowingly and willfully violated the AKS.”) (emphasis in
original). If the Court does not accept Relator’s method, or if the Court finds that other methods
of calculating costs are permissible under the AKS, Relator has failed to show a triable issue
regarding whether Mobilex prices its Part A services below cost; if the services are not priced
below cost, Relator lacks any evidence whatsoever to show Mobilex acted “in order to induce”
referrals for its Part B services, and its case must be dismissed.
Relator also alleges that Mobilex prices its contracts “with intentional disregard for
costs,” since its employees “admit that they have no idea what the word ‘costs’ means, or what it
actually costs to perform an x-ray in a particular SNF.” (Doc. 118-1 at 27). But more than this
is required to save Relator’s case. Such evidence cannot defeat summary judgment because it
does not “tend[] to meaningfully exclude a legitimate (or negligent) explanation for [Mobilex’s]
conduct.” Klaczak, 458 F. Supp. 2d at 677. And in fact both Relator and Mobilex cite to
significant evidence that Mobilex does track its costs at various levels and to various degrees of
specificity. (See Glynn I at 144-45; Glynn II at 98:8-15; Dep. of Patricia Pawling, Doc. 105-16,
at 45:8-10; Dep. of Robbin Reichert, Doc. 105-9, at 18-19, 82-83, 134-36; Dep. of David
Williams, Doc. 105-13, at 112). Mobilex produces “profit and loss statements” to track its
revenues and certain costs at the regional, state, and “geographic cost center” levels, which are
used by its regional vice presidents to make its contracting decisions. (Glynn I at 154-55; Dep.
of Dianna Gomez, Doc. 105-19, at 78:10-13; Dep. of Brian Cuomo, Doc. 105-18, at 93-95; Dep.
of Jeff Hooper, Doc. 105-14, at 21-22). Further, at least since 2007, Mobilex reviews its
contracts when its prices fall below a certain threshold (referred to by Mobilex as a “channel
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marker”) to ensure compliance with the AKS. (Pawling Dep. at 44-46, 54; Glynn I at 58-60;
Glynn II at 30, 75-76). Indeed, the AKS is clear that remuneration must be offered “in order to
induce” referrals; arbitrary prices set “with intentional disregard for costs” do not establish
inducement. Cf. Jamison, 900 F. Supp. 2d at 702 (holding that “[k]nowledge” for the AKS
requires that “the act was done voluntarily and intentionally, not because of mistake or accident,”
and finding that the defendants lacked intent where their employees “were more likely negligent
or careless,” since such carelessness “does not evidence a willful wrong intentionally
committed.”) (citations omitted).
B.
Incremental costs vs. fully-loaded costs
The problem for Relator, then, is not that Mobilex does not track its costs, but rather that
Mobilex does not track its costs in the way that Relator’s expert opines it must. Accordingly, the
Court must determine whether Relator’s metric of “fully loaded costs” is the only appropriate
measure of costs in this context. The Court concludes that it is not.
According to Relator, “total costs” is the proper measure to be used when assessing
whether remuneration by way of below-cost rates has taken place. (Doc. 107-1 at 15). Total
costs, he argues, “must be construed to include both variable (often referred to as incremental
costs) and fixed expenses, which are often referred to as overhead.” (Id.). This method accounts
for “both the fixed and variable costs related to providing the service and running a company’s
operations, including those costs allocated from regional or corporate headquarters.” (Id.). The
alternative to fully loaded costs, argues Relator, results in the costs of overhead to be shifted onto
its other services, including Part B, resulting in artificially low costs for Part A services, and
running afoul of the AKS. (Id. at 16).
Although Relator makes considerable hay of the importance of using fully loaded costs,
neither he nor his expert explains why this Court is legally bound to accept such calculations.
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Indeed, Relator suggests that “there is no case on point as to the proper measure of costs under
the AKS.” (Id.). But Relator blinds himself to the court’s well-reasoned holding in Jamison,
where Judge Aycock, assessing a similar swapping scheme, specifically held that the defendants’
use of the “incremental cost analysis to calculate anticipated profits” was a permissible measure
of costs under the AKS. 900 F. Supp. 2d at 700. The court explained that “fixed costs and
overhead, including executive salaries and property costs, were not associated or accounted as a
cost inherent in the [defendants’] business because such expenses would be incurred regardless
of whether [the defendants] won the contract or not.” Id. Despite the government’s best efforts
in Jamison, the court concluded that it “failed to present evidence that such [incremental cost]
analysis was either illegal under the AKS or improper under standard accounting principles.” Id.
For the same reasons, Relator’s argument must fail here. Relator breathlessly repeats his
claims that “shifting” overhead costs away from Part A services by using incremental cost
analysis is “the very definition of swapping.” (Doc. 107-1 at 23). But his arguments demand no
such conclusion. Relator seeks succor in the OIG’s advisory opinions finding that pricing below
“total cost” is “suspect,” meaning that it might merit further scrutiny by OIG. See, e.g., OIG
Advisory Opinion No. 12-09 (July 23, 2012); OIG Advisory Opinion No. 99-2 (Feb. 26, 1999).
But OIG advisory opinions do not establish rules of decision, and are not to receive judicial
deference. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Moreover, OIG advisory
opinions, by regulation, “have no application to any individual or entity that does not join in the
request for the opinion. No individual or entity other than the requestor(s) may rely on an
advisory opinion.” 42 C.F.R. § 1008.53. But in any case, OIG’s identification of a practice as
“suspect” merely triggers further investigation by OIG; it does not render a practice per se illegal
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or unlawful, as even Relator’s expert acknowledges. (See Dep. of Kathleen McNamara, Doc.
105-11, at 17:18-25).
The Court also notes that mandating “fully loaded costs” analysis would result in absurd
results, to say the least. As Mobilex points out, changes in executive salaries or the cost of rent
for its corporate headquarters, even if wholly unrelated to delivering mobile x-ray services, could
result in a contract suddenly becoming illegal, as the “total costs” of providing the services,
under Relator’s theory, will have increased. (See Doc. 117-12 at 19-20).
In sum, Relator has failed to demonstrate that his “fully loaded costs” approach is
required under the AKS. Even accepting the procedural logic of Relator’s argument, whereby
the Court infers the requisite inducement and intent on the part of Mobilex purely from its
pricing of its Part A services, and its ability to garner Part B services from contracts that are de
facto (if not de jure) exclusive, Relator must still show that Mobilex has priced its services “so
low” that it violated the AKS. Klaczak, 458 F. Supp. 2d at 680. As this Court has held, see Fry,
2008 WL 5282139, at *7-8, the AKS’s broad definition of remuneration as “anything of value”
can embrace such a theory of illegality; but only if Relator can still demonstrate a “comparison
point,” as “no inference can be drawn from ‘low’ prices unless there is some higher price” to
compare the discounts allegedly offered by Mobilex. Klaczak, 458 F. Supp. 2d at 681. Pricing
below costs is one such comparison – but because Relator cannot support the legal conclusion
that his method of determining costs is demanded by the AKS, his entire chain of logic unravels.
Relator already admits that Mobilex and its employees consistently sought to price Mobilex’s
Part A contracts above costs, in order to be profitable standing alone apart from any other
business line. Without the circumstantial evidence of Mobilex’s bad intent that his preferred
method for calculating costs might have provided, his case is a hollow one.
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Relator’s theory relies on a string of inferences in order to infer Mobilex’s knowledge
and intent to induce referrals via Part A services that are priced, by whatever measure, “too low.”
As in Klaczak, however, where Judge Filip undertook an extensive review of circumstantial
proof of intent under federal law, Relator’s inferences are simply too strained. See 458 F. Supp.
2d at 683 (“Assuming arguendo that Relators have presented sufficient evidence to support even
a preliminary inference that the [defendants] knowingly and willfully entered into a kickback
scheme . . . the [defendants] have set forth uncontradicted evidence that the contracts were as
compatible with legitimate business purposes as they were with an illegal agreement. This
failing also further undermines any notion that there is a triable case.”). Relator cannot establish
a sufficient factual basis to support his chain of inferences, and the Court is compelled to
conclude that summary judgment in favor of Defendants is required.
IV.
CONCLUSION
For the reasons states above, Defendants’ Motion for Summary Judgment (Doc. 105) is
GRANTED. Relator’s Motion for Partial Summary Judgment (Doc. 107) is DENIED. This
case is hereby DISMISSED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: August 12, 2014
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