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

Filing 829

ORDER AND OPINION re United States' Objections to the BlueWave Defendants' Deposition Designations for the United States' 30(b)(6) witness Alison Coleman (Dkt. Nos. 801 -3, 803 -1). The Court has ruled on each Objection as set forth in the Order. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/12/2018. (sshe, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION

United States of America, et al. ,
Plaintiffs,

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Civil Action No. 9:14-cv-00230-RMG
(Consolidated with 9: l l-cv-1593-RMG and
9:15-cv-2458-RMG)

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ex rel. Scarlett Lutz, et al.,

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Plaintiffs-Relators,
v.

Berkeley Heartlab, Inc. , et al. ,

ORDER and OPINION

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Defendants.
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This matter is before the Court on the United States' Objections to the BlueWave
Defendants' Deposition Designations for the United States' 30(b)(6) witness Alison Coleman.
(Dkt. Nos. 801-1 , 803-1.) The Court has ruled on each Objection as set forth below.
I.

Deposition of Alison Coleman (Dkt. No. 728-4, 823-2)

BlueWave's
Designation

Government's Objections

Ruling

Pg. 19, Ln. 9 Pg. 20, Ln. 16

Not relevant, per Court' s 12/4/2017 The objection is sustained in
ruling on materiality (Dkt. No. accordance with the Court' s
Order at Dkt. No. 795.
795).

Pg. 21 , Ln. 21 - 25

Not relevant, per Court' s 12/4/2017 The objection is sustained in
ruling on materiality (Dkt. No. accordance with the Court' s
Order at Dkt. No. 795.
795).

Pg. 48, Ln. 12 Pg.49, Ln. 5

Beyond the scope; the deponent is
asked about medical necessity
reviews of HDL and Singulex, a
topic for which she was not
designated.

AND

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The objection is overruled.
Deponent was designated to
speak about the process of
medical necessity reviews of
independent clinical lab testing

services generally, Topic 14(e),
and "How HDL's and Singulex's
claims to Medicare and
TRICARE including the claims
which are the subject of this
complaint, were reviewed,
denied, and/or paid." (Dkt. No.
815-4 at 1, 7.) Therefore,
questions about medical
necessity reviews of HDL and
Singulex are not outside the
scope of the designation.

Pg. 50, Ln. 3-18
AND
Pg. 51 , Ln. 6-9

Pg. 52, Ln. 21-24

Not relevant, per Court' s 12/4/2017 The objection is sustained in
ruling on materiality (Dkt. No. accordance with the Court' s
Order at Dkt. No. 795.
795); vague.

Pg. 71 , Ln. 16 - 25

Beyond the scope; the deponent is
asked about pre-payment medical
necessity reviews of HDL and
Singulex, a topic for which she was
not designated.

Pg. 84, Ln. 6 Pg. 85 , Ln.13

Lacks foundation ; witness asked to The objection is overruled. The
draw conclusions from a document deposition transcript shows that
the deponent was able to
with which she is not familiar.
understand the questions and the
document and to answer
questions that were otherwise
within the scope of the
designation.
The objection is overruled
Incomplete.
because the Government's
counter-designation resolves
incompleteness [Pg. 87, Ln. 6-7] ,
and Defendants have not
objected to the counterdesignation.
Lacks foundation; incomplete.
The objection is overruled
because the Government' s
counter-designation resolves
incompleteness [Pg. 88, Ln. 5-7] ,
and Defendants have not
objected to the counterdesignation.

Pg. 86, Ln. 23 Pg. 87, Ln. 5

Pg. 87, Ln. 22 Pg. 88, Ln.4

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The objection is overruled. For
reasons stated above, questions
about medical necessity reviews
of HDL and Singulex are not
outside the scope of the
designation.

Pg. 97, Ln. 15 Pg. 99,Ln. 2

Incomplete; repetitive; beyond the The objection is overruled. The
scope; the deponent is asked about deponent was asked several
state prevailing rates and provider questions about how Tricare
billed rates, topics for which this determines the appropriate
reimbursement for a claim. This
deponent was not designated.
subject falls within Topic 14
(Dkt. No. 815-4 at 7) which
broadly covers claims processing
and review and is therefore
within the scope of the
designation.

Pg. 100, Ln. 23 Pg. 101 , Ln. 3

Incomplete; no end to designation.
Designation should end at Pg. 101,
Ln. 3.

Pg. 106, Ln. 7 Pg. 109, Ln. 1

Incomplete; compound; beyond the
scope. The deponent is asked about
state prevailing rates and provider
billed rates, topics for which she
was not designated.

Pg. 112, Ln. 15 Pg. 113, Ln. 2

Incomplete;
lacks
foundation;
misstates testimony. The deponent
is asked about state prevailing rates
and provider billed rates, topics for
which this deponent was not
designated. Counsel ' s question (not
included m the designation),
assumes certain activity regarding
physician billing.

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The Government also objected
that the designation is incomplete
but did not offer a counterdesignation, so the objection as
to incompleteness is overruled.
The objection is moot because
Defendants updated their
designation to end at Pg. 101, Ln.
3.
The objection is overruled. The
deponent was asked several
questions about how Tricare
determines the appropriate
reimbursement for a claim. This
subject falls within Topic 14
(Dkt. No. 815-4 at 7) which
broadly covers claims processing
and review and is therefore
within the scope of the
designation.
The objection is overruled. The
deponent was asked several
questions about how Tricare
determines the appropriate
reimbursement for a claim. This
subject falls within Topic 14
(Dkt. No. 815-4 at 7) which
broadly covers claims processing
and review and is therefore
within the scope of the
designation.

Pg. 134, Ln. 20 - 23

Incomplete.

Pg. 145, Ln. 8 - 12

Vague, . misleading; beyond the
scope; the question is vague and
misleading
m
referring
to
TRICARE's payment of a "process
and handling fee" "for a blood
sample."

Pg. 153, Ln. 15 - 23

Lacks foundation ; beyond the
scope; the deponent is asked about
her personal experience with
literature distributed by TRICARE
to providers.

The objection is overruled. The
Government's counterdesignation resolves
incompleteness [Pg. 134, Ln. 819], and Defendants have not
objected to the counterdesignation.
The objection is overruled.
Deponent was designated to
speak about the reimbursement
of P&H fees , so this question is
not outside the scope of the
designation. (Dkt No. 815-4 at 7,
Topic 19.) Deponent did not
appear confused by the question
or ask for clarification, so the
objection as to vagueness is
overruled.
The objection is overruled.
Deponent was asked, "have you
seen any literature distributed by
TRICARE to providers regarding
the potential for a process and
handling fee to be an inducement
and therefore a violation of the
Anti-Kickback Statute?"
Deponent responded, "I have not
seen anything."
Deponent was designated to
answer questions about, "CMS ' s
past and existing policies,
guidance and valuation
determinations regarding its
payments of blood specimen
handling fees pursuant to
Medicare' s Fee Schedule ... ,
and CMS ' s past and existing
policies, guidance and valuation
regarding its payments of
venipuncture fees pursuant to
Medicare ' s Fee Schedule." (Dkt.
No. 815-4 at 2, 7.) Counsel ' s
question about whether deponent
was aware of any guidance
issued by TRICARE to providers

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about process and handling fees
is therefore within the scope of
the designation. The excerpt is
not reasonably read as an inquiry
into deponent' s personal
experience even though counsel
asked about what deponent
herself had "seen."
The objection as to lack of
foundation is also overruled.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge

January tJ_ , 2017
Charleston, South Carolina

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