United States of America et al v. Bluewave Healthcare Consultants Inc et al
ORDER AND OPINION denying 558 BlueWave Defendants' Motion ro Reconsider Signed by Honorable Richard M Gergel on 8/9/2017.(sshe, )
IN THE UNITED STATES DISTRICT COU~lCEIVEO CLERK'S OFFICE
DISTRICT OF SOUTH CAROLINA
2011 AUG - q p J 4 3
United States of America, et al.,
ex rel. Scarlett Lutz, et al.,
Berkeley Heartlab, Inc., et al.,
Civil Action No. 9:14-c\lj~q~Mt-,&Mfir
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.
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,
with regard to the clinical utility of the Cardiovascular/Metabolic Test Profile, she was not
qualified to offer her opinion. (Id. at 5-7.)
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).
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
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.
AND IT IS SO ORDERED.
Richard Mark Gerg 1
United States District Court Judge
August _j_, 2017
Charleston, South Carolina
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