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

Filing 724

ORDER AND OPINION DENYING AS MOOT 717 Government's Motion to Exclude the Testimony of Dennis Padget. No sanction will be imposed. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/15/2017.(sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

United States of America, et al. ,
Plaintiffs,

ex rel. Scarlett Lutz, et al.,
Plaintiffs-Relators,
V.

Berkeley Heartlab, Inc., et al. ,

)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 9:14-cv-00230-RMG
(Consolidated with 9: 11-cv-1593-RMG and
9: l 5-cv-2458-RMG)

ORDER and OPINION

Defendants.
~~~~~~~~~~~~~~~~)

This matter is before the Court on the Government' s Motion to Exclude the Testimony of
Dennis Padget. (Dkt. No. 717.) The BlueWave Defendants have filed a response indicating that
the "United States' motion to exclude Mr. Padget as a witness is moot because Mr. Padget has
withdrawn as Defendants' expert." (Dkt. No. 720 at 2.) For this reason, the Government' s
Motion to Exclude (Dkt. No. 717) is denied as moot.
The Blue Wave Defendants have asked the Court to impose nonmonetary sanctions on the
Government based on the Government' s allegedly improper actions in connection with the
BlueWave Defendants' efforts to secure Mr. Padget as an expert witness. (Dkt. No. 720 at 18.)
The Court finds that no sanctions are appropriate because there is no evidence that the
Government violated any part of Rule 3.4 of the South Carolina Rules of Professional Conduct,
which concerns the unlawful obstruction of another party' s access to evidence or a request to a
person other than a client to refrain from voluntarily given relevant information to another party.
The record shows that Mintz Levin did ask Padget to return material s, but there is nothing

-1-

unlawful about the firm ' s actions. Mr. Padget produced those materials pursuant to a contractual
relationship with Mintz Levin which obtained his professional services in connection with their
legal advocacy for another client.
Further, the Court already determined that Defendants had ample opportunity to procure
an expert to support their position on process and handling fees but failed to do so. (Dkt. No. 712
at 6-7.) Indeed, Defendants still have not argued that there was any reason they could not have
timely named an expert witness to provide an opinion on Code 99000 that was similar to Mr.
Padget' s. The Court only afforded Defendants the opportunity to secure Mr. Padget as an expert
witness because doing so would not substantially prejudice the Government which already had
its own witness, Kathleen McNamara, able to speak to the issue. That Mr. Padget ultimately
decided not to provide expert testimony for Defendants is not grounds for sanctioning the
Government.
For these reasons, the Government' s Motion to Exclude the Testimony of Dennis Padget
(Dkt. No. 717) is DENIED AS MOOT, and no sanction will be imposed.
AND IT IS SO ORDERED.

United States District Court Judge

November J~ , 2017
Charleston, South Carolina

-2-