Michaels et al v. Agape Senior Community Inc et al

Filing 203

ORDER informing parties that the case will benefit from an informational bellwether trial process and ordering that the allegedly false claims surrounding the approximate 95 patients will go to trial in May 2015 as an informational bellwether trial. Signed by Honorable Joseph F. Anderson, Jr. on 12/10/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
United States of America ex rel. BRIANNA
MICHAELS and AMY WHITESIDES,

C/A No. 0:12-cv-03466-JFA

Relators,
vs.
AGAPE SENIOR COMMUNITY, INC.;
AGAPE SENIOR PRIMARY CARE, INC.;
AGAPE SENIOR SERVICES, INC.;
AGAPE SENIOR, LLC;
AGAPE MANAGEMENT SERVICES, INC.;
AGAPE COMMUNITY HOSPICE, INC.;
AGAPE NURSING AND
REHABILITATION CENTER, INC.
d/b/a AGAPE REHABILITATION OF
ROCK HILL a/k/a AGAPE SENIOR POST
ACUTE CARE CENTER – ROCK HILL a/k/a
EBENEZER SENIOR SERVICES, LLC;
AGAPE SENIOR FOUNDATION, INC.;
AGAPE COMMUNITY HOSPICE OF
ANDERSON, INC.; AGAPE HOSPICE OF THE
PIEDMONT, INC.; AGAPE COMMUNITY
HOSPICE OF THE GRAND STRAND, INC.;
AGAPE COMMUNITY HOSPICE OF THE
PEE DEE, INC.; AGAPE COMMUNITY
HOSPICE OF THE UPSTATE, INC.; AGAPE
HOSPICE HOUSE OF HORRY COUNTY, INC.;
AGAPE HOSPICE HOUSE OF LAURENS, LLC;
AGAPE HOSPICE HOUSE OF THE LOW
COUNTRY, INC.; AGAPE HOSPICE HOUSE
OF THE PIEDMONT, INC.; AGAPE
REHABILITATION OF CONWAY, INC.;
AGAPE SENIOR SERVICES FOUNDATION,
INC.; AGAPE THERAPY, INC.; AGAPE
HOSPICE; HOSPICE PIEDMONT; HOSPICE
ROCK HILL; and CAROLINAS
COMMUNITY HOSPICE, INC.,

Defendants.

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ORDER

On December 7, 2012, Relators Brianna Michaels and Amy Whitesides (“Relators”) filed
their initial Complaint against Defendants for damages and other relief under the False Claims
Act, the Anti-Kickback Statute, and Health Care Fraud Statute alleging that Defendants
orchestrated a widespread and fraudulent scheme of submitting false claims to the government
seeking reimbursement for hospice-related services. There are approximately 60,000 claims at
issue.
At a hearing on October 10, 2014, the court suggested conducting a bellwether trial as to
100 allegedly false claims. In a bellwether trial, a sample of cases large enough to yield reliable
results is tried to a jury, then the remaining case is tried, or additional bellwether trials are
conducted. The outcome of a bellwether trial can be beneficial for litigants who desire to settle
such claims by providing information on the value of the cases as reflected by the jury verdict in
the bellwether trial.
At a status conference on December 8, 2014, to discuss the 100 claims, both parties
appeared amenable to the bellwether trial with certain qualifications. Defendants suggested a
random sampling pool for the bellwether trial, in line with the typical bellwether trial process.
The Relators suggested a pooling of claims from five categories, therefore, not a random
sampling but a sample that illustrates the universe of the allegedly false claims.
The Relators informed the court that they have identified allegedly false claims
surrounding approximately 95 patients, and continue to identify patients/false claims through the
discovery process. Defendants agreed to go ahead try these 95 patients for trial. It is the court’s
understanding that the Defendants did not agree to subsequent trials after the bellwether trial.
Essentially, the Defendants requested the court to treat this case like any other case and try only
the allegedly false claims that the Relators have identified, i.e. the claims surrounding the 95

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patients. The court construes Defendants argument as an objection to the bellwether trial process
since the Defendants would like only the claims surrounding the 95 patients to be tried, and no
subsequent trials to follow.
The court holds that this case would benefit from an informational bellwether trial
process. The court hereby orders that the allegedly false claims surrounding the approximate 95
patients will go to trial in May 2015 as an informational bellwether trial. The current discovery
deadline of December 23, 2014 found in the Formal Scheduling Order, ECF No. 90, shall apply
to these 95 patients. Further, the Relators shall identify their experts and the 95 patients by
Friday, December 12, 2014. Thereafter, the Defendants have 10 days to identify their experts.
While preparing for a bellwether trial on these 95 patients, the Relators shall continue to prepare
for the subsequent trial on the remaining claims. Such discovery shall be completed by July 1,
2015 and the subsequent trial will go to trial in the September/October 2015 term of court. Any
dispositive motions must be filed in accordance with the existing deadline in the Formal
Scheduling Order.
IT IS SO ORDERED.

December 10, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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