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

Filing 575

ORDER AND OPINION denying 551 BlueWave Defendants' Motion to Reconsider Signed by Honorable Richard M Gergel on 8/9/2017.(sshe, )

IN THE UNITED STATES DISTRICT COURT RfC[IVED CLERK'S OFFICE
DISTRICT OF SOUTH CAROLINA
2011 AUG -9 p J ti 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.

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Civil Action No. 9:14~fY~-~qg§qt~ufn
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9:15-cv-2458-RMG)
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ORDER and OPINION

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This matter is before the Court on a Motion to Reconsider (Dkt. No. 551) 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.
527) excluding the proffered expert testimony of Curtis Udell. The Government has filed a
response in opposition. (Dkt. No. 556.) For the reasons set forth below, the BlueWave
Defendants' Motion to Reconsider (Dkt. No. 551) is denied.
I.

Background

On July 12, 2017, this Court issued an order excluding the proffered testimony of Curtis
Udell because he relied on a charge-based methodology to support his opinion that the
Processing and Handling fees paid by the laboratories were consistent with the Fair Market
Value of those services. The Court explained in detail the reasons why a charge-based
methodology is not a reliable methodology for determining the Fair Market Value of physician

services. (Dkt. No. 527 at 7-11.)

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II.

Legal Standard
In the Fourth Circuit, motions to reconsider are granted under a narrow set of

circumstances: "(l) 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. 551), the BlueWave Defendants reargue Mr.

Udell's opinion that physician charges represent a physician's expectation of payment. They also
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 Fair Market Value 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. 527), the

Blue Wave Defendants' Motion to Reconsider (Dkt. No. 551) is denied.

AND IT IS SO ORDERED.

United States District Court Judge

August _J__, 2017
Charleston, South Carolina

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