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

Filing 830

ORDER AND OPINION re the United States' Objections to the BlueWave Defendants' Deposition Designations for the United States' 30(b)(6) witnesses Jennifer Williams and Michael Handrigan. (Dkt. Nos. 801 -1, 803 -1, 817 -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 STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
United States of America, et al. ,
Plaintiffs,
ex rel. Scarlett Lutz, et al.,

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Civil Action No . 9: 14-cv-00230-RMG
(Consolidated with 9: 11-cv-1593-RMG and
9: 15-cv-2458-RMG)

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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) witnesses Jennifer Williams
and Michael Handrigan. (Dkt. Nos. 801-1 , 803-1 , 817-1.) The Court has ruled on each Objection
as set forth below.
I.

Deposition of Jennifer Williams (Dkt. No. 818-2)

BlueWave's
Designation
Pg. 75 , Ln. 22 Pg. 76,Ln. 12

Government's Objection

Ruling

Beyond the scope; seeks a legal
conclusion; calls for
speculation. The deponent is
asked about HHS-OIG ' s
position regarding a particular
hypothetical arrangement, an
issue for which this deponent
was not designated and which
seeks a legal conclusion.

The objection is overruled. Deponent
was asked if "OIG take[s] the position
that if a doctor chooses not to bill
Medicare for a specimen collection
fee, that the doctor can receive a
payment from a lab for the same."
Deponent was designated to speak
about "Identification and explanation
of past federal government guidance,
issued by the Department of Health
and Human Services Office of
Inspector General (HHS-OIG) through
June 25, 2014, such as relevant rules
and regulations, Advisory Opinions,

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and Special Fraud Alerts on the
definition of "commercial
reasonableness" as those terms are
used in the AKA and its exceptions
and safe harbors." (Dkt. No. 815-4 at
1, 4.) The question at issue is arguably
relevant to OIG ' s interpretation of
commercial reasonableness so is not
outside the scope of the designation.

Pg. 89, Ln. 2 Pg. 101, Ln. 16

Beyond the scope; counsel
testifying (e.g., Pg. 90, Ln: 1218; Pg. 92, Ln. 1-11 ; Pg. 101 ,
Ln. 2-8); seeks a legal
conclusion (e.g. , Pg. 94, Ln. 14); calls for speculation (see
id.); vague (e.g., Pg. 96, Ln. 22Pg. 97, Ln. 5); best evidence
(e.g., Pg. 98 , Ln: 4-12);
incomplete

Deponent answered that OIG would
assess such arrangements on a case by
case basis, so the question did not lead
the deponent to offer a legal
conclusion or to speculate.
The Government's objections as to Pg.
90, Ln. 12-18; Pg. 92, Ln. 1-11; and
Pg. 101, Ln. 2-8 are sustained because
counsel is testifying.
The Government's objection that
certain testimony (Pg. 94, Ln. 1-4)
seeks a legal conclusion and calls for
speculation is overruled. The question
did not seek an inappropriate legal
conclusion but asked directly about
the scope of a safe harbor provision.
The Government's objection as to
vagueness is overruled because
counsel asked the question again later
in the excerpt to clarify.
The Government's best evidence
objection is overruled because the
Court understands that the original or
a duplicate copy of the document at
issue will be introduced into evidence
consistent with Federal Rules of
Evidence 1002 and 1003.
The objection is overruled as to
completeness. The Government's
counter-designation resolves
incompleteness [Pg. 101, Ln. 17 - Pg.
102, Ln. 11], and Defendants have not

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objected to the counter-designation.

Pg. 103 , Ln. 13 Pg. 104, Ln. 11

Relevance

Pg. 106, Ln: 3 Pg.: 110, Ln: 12

Relevance (e.g., Pg. 106, Ln. 316); counsel testifying (e.g., Pg.
108, Ln. 5-Pg. 109, Ln.8);
seeks a legal conclusion (see
id.)

Pg. 118, Ln. 9 Pg.: 119, Ln. 10

Pg. 119, Ln. 22 Pg.: 123, Ln. 3

The objection is overruled. This
designation is generally relevant to the
issues in this case.
The Government' s objection as to
relevance is overruled because the
deponent indicated that the advisory
opinion language he was asked about
has been changed, and the language in
the document and subsequent changes
may be relevant to this case.

The Government's objection that
counsel is testifying or seeking a legal
conclusion at Pg. 108, Ln. 5 - Pg. 109,
Ln. 8 is overruled because counsel is
asking about the meaning of the
document which was within the scope
of the designation, and counsel did not
inappropriately testify or seek a legal
conclusion when he read small
excerpts of the document out loud to
the deponent.
Lacks foundation; best evidence The Government' s best evidence
objection is overruled because the
Court understands that the original or
a duplicate copy of the document at
issue will be introduced into evidence
consistent with Federal Rules of
Evidence 1002 and 1003.
The Government's objection that the
testimony lacks foundation is
overruled because counsel presented a
direct question about the topic of a
document and deponent answered. No
additional foundation is required.
Best evidence; calls for
The objection is sustained as to Pg.
speculation (e.g., Pg. 121, Ln.
121, Ln 21 -Pg. 122, Ln 4. The
21-Pg. 122, Ln. 4);
question is outside the scope of the
argumentative; counsel
designation. Deponent was not
testifying (e.g., Pg. 122, Ln. 9designated to speak generally about
the difference between independent
Pg. 123 , Ln. 1)
contractors and employees in terms of
how easy it is to fire one or the other.

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Pg. 132, Ln. 16 Pg.133,Ln.18

Beyond the scope

Pg. 134, Ln. 16 21

The Government's objection is
overruled as to Counsel's question at
Pg. 122, Ln. 9 - Pg. 123, Ln. 1.
Counsel asked whether two situations
described in advisory opinions are
comparable and deponent confirmed
that counsel's understanding of their
similarity is correct. The line of
questioning was not argumentative.
The objection is sustained. Deponent
was designated to speak about specific
HHS-OIG documents, but was not
designated to speak to the entire
universe of guidance. (Dkt. No. 815-4
at 1, 6 (Topics 12 and 13).) Deponent
was asked if she knew of any other
published guidance from OIG that
covered the routine waiver of copayments and deductibles. The
question was outside the scope of the
designation.
The objection is sustained. The
question and answer in this portion of
the deposition transcript have no
relevance to any issue in the case as
excerpted. Deponent is asked if she
reviewed two exhibit settlement
agreements and responds in the
affirmative. This information standing
alone will not help the fact-finder.

Relevance

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II.

Deposition of Michael Handrigan (Dkt. No. 728-11at43-44)
Government's Objections

Ruling

Pg. 169, Ln. 4 Pg. 170, Ln. 22

Beyond the scope; calls for
speculation. Deponent is asked
for the policy behind Medicare ' s
copay and deductible policy, a
topic for which the deponent was
not designated.

Pg. 171, Ln. 1017

Beyond the scope; not relevant.
The deponent is asked about
claims for services not provided,
a topic for which the deponent
was not designated and a matter
that is not at issue in the case.

The objection is sustained in part and
overruled in part. Deponent was
designated to speak about "CMS
processes, protocols and guidelines
for approving lab test and/or testing
services as eligible for payment by
federal health care programs." (Dkt.
No. 815-4 at 1, 7 (Topic 14).)
Questions from Pg. 164, Ln. 4
through Pg. 170, Ln. 17 are within
the scope of this designation. (Dkt.
No. 728-11at43.) Deponent was
then asked "do you know why the
government or CMS takes the
position that co-pays or deductibles
are not applicable to lab tests." (Id.)
Deponent represented that he did not
know the answer to the question, and
the question was beyond the scope of
his designation. The Government's
objection is therefore sustained for
Pg. 170, Ln. 18 through 22. The
Government' s objection is otherwise
overruled.
The objection is overruled. Deponent
was designated to speak about
"HDL ' s and Singulex claims for
payment to the Medicare and Tricare
programs" 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
(Topic 15).) Deponent was asked if
he was aware of any claims that were
made for services that were not
performed. (Dkt. No . 728-11 at 43 .)
This question is arguably within the
scope of Topic 15 .

BlueWave's
Designation

The Government also argues that this

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question concerns a matter that is not
at issue in this case, namely, whether
any claims were made for services
that were not provided. The
Government has alleged that claims
were submitted for services that were
not medically necessary or that
claims resulted from illegal kickbacks
disguised as process and handling
fees. Defendants intend to argue as a
defense that the tests were medically
necessary, so they have the right to
present the jury with evidence that
the tests were actually performed to
bolster their defense that the claims
submitted were legitimate, even if the
Government does not argue that the
services were not performed.

AND IT IS SO ORDERED.

United States District Court Judge
January
IL , 2017
Charleston, South Carolina

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