United States of America et al v. Bluewave Healthcare Consultants Inc et al

Filing 572

ORDER AND OPINION denying 558 BlueWave Defendants' Motion ro Reconsider Signed by Honorable Richard M Gergel on 8/9/2017.(sshe, )

Download PDF
IN THE UNITED STATES DISTRICT COU~lCEIVEO CLERK'S OFFICE DISTRICT OF SOUTH CAROLINA 2011 AUG - q p J 4 3 CHARLESTON DIVISION United States of America, et al., Plaintiffs, ex rel. Scarlett Lutz, et al., Plaintiffs-Relators, V. Berkeley Heartlab, Inc., et al., Defendants. ) ) ) Civil Action No. 9:14-c\lj~q~Mt-,&Mfir (Consolidated withST(}::tg~s--~jS>B~G:ยท;:and 9:15-cv-2458-RMG) ,,,n,,L,_-., lON, ) ) ) ) ) ) ) ) ) ) ) J ORDER and OPINION ___________ This matter is before the Court on a Motion to Reconsider (Dkt. No. 558) filed by BlueWave Healthcare Consultants, Inc., Floyd Calhoun Dent, III, and Robert Bradford Johnson (collectively, "the BlueWave Defendants"), asking this Court to reconsider its Order (Dkt. No. 550) excluding the proffered expert testimony of Jennifer Bolen. The Government has filed a response in opposition. (Dkt. No. 559.) For the reasons set forth below, the BlueWave Defendants' Motion to Reconsider (Dkt. No. 558) is denied. I. Background On July 24, 2017, this Court issued an order excluding the proffered testimony of Jennifer Bolen because she relied on a charge-based methodology to support her opinion that the Processing and Handling fees paid by the laboratories were commercially reasonable. (Dkt. No. 550.) The Court explained in detail the reasons why a charge-based methodology is not a reliable methodology for determining the commercial reasonableness of physician services. (Id. at 4-5.) The Court also determined that the portions of Bolen's opinions that did not rely on a chargebased analysis were inadmissible because they were not based on sufficient facts or data and, -1- with regard to the clinical utility of the Cardiovascular/Metabolic Test Profile, she was not qualified to offer her opinion. (Id. at 5-7.) II. Legal Standard In the Fourth Circuit, motions to reconsider are granted under a narrow set of circumstances: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002). III. Discussion In their Motion to Reconsider (Dkt. No. 558), the BlueWave Defendants reargue the merit of a charge-based methodology. They argue at length that charges are at least relevant to the value of physician services, but they ignore the Court's actual ruling that a methodology used to determine the commercial reasonableness of physician services based almost exclusively on charges is unreliable and would be misleading to a jury. The Motion to Reconsider does not point to any intervening change in the law, new evidence, or clear error of law in this Court's order. Instead, it reargues issues that the parties previously briefed and that this Court has already considered. A motion to reconsider is not the proper vehicle to notify that Court that the BlueWave Defendants disagree with the Court's previous order. IV. Conclusion For the reasons set forth above and in this Court's previous order (Dkt. No. 550), the Blue Wave Defendants' Motion to Reconsider (Dkt. No. 558) is denied. -2- AND IT IS SO ORDERED. Richard Mark Gerg 1 United States District Court Judge August _j_, 2017 Charleston, South Carolina -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?