United States of America et al v. Anderson, et al.

Filing 341

MEMORANDUM ORDER: For the reasons stated in this Order, Defendant's proposed Exhibit 3 and Exhibit 4 will not be admitted at trial. Signed by Magistrate Judge Alistair Newbern on December 5, 2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(AN)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs,

Case No. 2:13-cv-00035

v.
Magistrate Judge Alistair E. Newbern
DAVID G. FLORENCE,
Defendant.

ORDER
In compliance with the Court’s December 3, 2021 order (Doc. No. 338), Defendant Dr.
David Florence has filed what the Court construes as a motion to offer two exhibits at the
December 6, 2021 trial of this matter: the deposition of Matthew Anderson, a former defendant in
this matter, taken in a state administrative proceeding, Matter of Spine and Medical Associates of
Roane County d/b/a Roane County Healthcare Professionals and David G. Florence, TennCare
Provider Appeal No. 09.15-131056J (Exhibit 3), and the entire record of that proceeding (Exhibit
4). (Doc. No. 339.) The United States has filed a response in opposition. (Doc. No. 340.) For the
reasons that follow, Florence may not offer his proposed Exhibit 3 or Exhibit 4 at trial.
I.

Procedural History
This action was initiated as a qui tam proceeding by Relator Debra Norris, who filed a
complaint on May 3, 2013, against thirty-six named defendants, including Matthew Anderson and

David Florence (Doc. No. 1). Norris brought claims on her own behalf and on behalf of the United
States and the State of Tennessee under the federal False Claims Act, 31 U.S.C. § 3729(a)(1)(A)–
(C), the Tennessee Medicaid False Claims Act, Tenn. Code Ann. § 71-5-182(a)(1)(A)–(C), and
Tennessee common law. (Id.) On March 24, 2016, the United States and State of Tennessee filed
a complaint in intervention. (Doc. No. 47.) On August 3, 2016, the United States and Tennessee

filed an amended complaint in intervention against seven remaining defendants, including
Anderson and Florence, which has served as the controlling pleading since that date. 1 (Doc.
No. 77.)
In the amended complaint, the United States brought claims under the federal False Claims
Act (Count I, Count II) and Controlled Substances Act, 21 U.S.C. § 842 (Count V), against all
defendants. (Id.) The State of Tennessee brought claims under the Tennessee Medicaid False
Claims Act against a group of six defendants that included Anderson but did not include Florence
(Count VI). (Id.) The United States and Tennessee brought common law claims of payment by
mistake of fact (Count III) and unjust enrichment (Count IV) against all defendants. (Id.) Between
July 25, 2017, and February 16, 2018, the parties stipulated to the dismissal of all defendants except
Florence. (Doc. Nos. 148, 160, 162.)
On August 3, 2018, the Court entered a case management order jointly proposed by the
parties in which the State of Tennessee articulated its position that it “brought claims against
Defendants in this case who have already entered into settlements and been dismissed as parties”
and “did not bring a Tennessee Medicaid False Claims Act claim against Florence, such that
Tennessee no longer has any pending claims in this case.” (Doc. No. 175, PageID# 1816.)
Florence’s stated position was that, “[i]f the State of Tennessee is hereby telling the Court that it
has no further claim against Florence under the facts alleged in the Complaint and it wishes to
dismiss its suit, then its dismissal should be with prejudice.” (Id. at PageID# 1818.) Florence also
noted:
In Initial Discovery the State of Tennessee and the U.S. Government listed a
deposition of Dr. Florence and all records in the file in a related cause of action
under the Tennessee Administrative Procedures Act. Defendant Florence also in
Initial Disclosures reflected that the [sic] wanted to utilize those materials.
Defendant Florence should be able to use them under either circumstance; however,
1

Norris voluntarily dismissed her claims against the defendants not named in the complaint
in intervention without prejudice. (Doc. No. 137.)
2

it is the fear of counsel that the purpose of now at this stage deleting the State as a
party will be used to bar Dr. Florence from relying upon information taken in that
State proceeding.
(Id.) 2
On August 24, 2018, Florence filed a motion to compel discovery responses from the
United States and the State of Tennessee that addressed the records from the related state
administrative proceeding. (Doc. No. 177.) In the motion, Florence’s counsel stated:
As to the State of Tennessee, on the morning of Monday, August 20, 2018[,
Assistant Attorney General] Mr. Bangle called my office and advised that the State
of Tennessee chose not to participate in the [d]iscovery process. In response, I
advised him that the State is a party in the litigation, and we were entitled to obtain
the [d]iscovery from them and that we were anticipating responses. Mr. Bangle
went on to indicate that, well, the State didn’t have to answer any questions, because
they didn’t sue Dr. Florence, but what I should do if I wanted some [d]iscovery
from the State is to subpoena somebody from the Bureau of TennCare and submit
questions to them and that if I wanted to do that he would cooperate in getting the
information. He basically went on to tell me, well, you know, the State did not sue
Florence and he was trying to help us and if that wasn’t acceptable, he would just
file his response and we could address it with the Court. Later that same day, August
20th, we received by email from Honorable Philip Bangle an [o]bjection to the
[d]iscovery contending that they did not intervene in the suit against Dr. Florence
and further stating that if we wanted anything from the State we should give a third
party subpoena to the Tennessee Bureau of TennCare.
(Id. at PageID# 1829.) 3
The Court denied Florence’s motion to compel without prejudice to refiling upon
demonstration that the parties had complied with this Court’s Local Rule 37.01, which requires,
first, a good-faith attempt at resolution among the parties and, second, that the parties file a joint

2

Florence repeated this position in a subsequent case management order entered on March
13, 2019. (Doc. No. 210.)
3

Discovery responses from the United States attached to Florence’s motion show that, in
answering a request for production of all non-privileged documents identified in its initial
disclosures, the United States responded: “The United States will not produce Florence’s
deposition to him, since he presumably has a copy or can purchase his own copy. Further, the
United States understands that Florence’s counsel should already have documents from the
ancillary state proceeding against Florence, since his current counsel represented him in that
matter.” (Doc. No. 177-2, PageID# 1845.)
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statement detailing their resolution attempt, the exact discovery in dispute, and the parties’
positions, before requesting a telephone conference with the Magistrate Judge (Doc. No. 180). See
M.D. Tenn. Rule 37.01 (discovery motions). Florence did not renew the motion to compel.
On November 12, 2021—more than three years later and less than a month before the
scheduled trial of this action—Florence’s counsel executed a subpoena to the custodian of records
of the Tennessee Secretary of State Administrative Procedures Division for “[t]he entire
[a]dministrative record in the case of Spine and Medical Associates of Roane County, Dr. David
Florence, et al. and Bureau of TennCare, Docket No. 09.15-131056J.” (Doc. No. 339-1,
PageID# 2936.) By a letter attached to the subpoena, Florence’s counsel asked the custodian to
provide copies of the requested records to counsel for the United States, State of Tennessee, and
Relator, and to file a copy with this Court. (Id.)
The Court recounts this history because Florence now asks to introduce as his proposed
trial Exhibit 3 “[t]he deposition of Matthew Anderson taken January 13, 2016[,] in the State
proceeding of In the matter of Spine and Medical Associates of Roane County d/b/a Roane County
Healthcare Professionals and David G. Florence (TennCare provider appeal No. 09.15-131056J)
. . .” and, as proposed trial Exhibit 4, “[t]he entire record of the proceeding in the case before the
Administrative Procedures Division involving Dr. Florence and the State of Tennessee under the
Administrative Procedures Divisions [sic] of the State of Tennessee which was pending at the time
that the above referenced deposition was taken.” (Doc. No. 311, PageID# 2631–32.)
After the November 19, 2021 pretrial conference, the Court ordered Florence to address
his failure to produce the exhibits identified in his filed exhibit list (Doc. No. 311) for inspection
at the pretrial conference, as the Court’s amended trial setting order (Doc. No. 285) required. Based
on Florence’s failure to produce the exhibits for inspection at the pretrial conference, among other
issues, the Court ordered Florence to show cause why his exhibits should be allowed at trial. (Doc.
No. 320.) Florence did not address the admission of his proposed exhibits in his response to the
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Court’s order. (Doc. No. 323.) Despite this failure, the Court found that Florence could introduce
his proposed Exhibits 1, 2, 6, 7, 8, 12, 13, 22, and 24. (Doc. No. 327.) The Court further found that
“the admission of Exhibit 3 (deposition of Matthew Anderson taken January 13, 2016) . . . will be
addressed in the Court’s review of the parties’ deposition designations” and ordered counsel to
meet and confer to attempt to reach agreement about Florence’s remaining exhibits, including
Exhibit 4. (Id. at PageID# 2819.) Counsel were ordered to provide binders of their trial exhibits to
the Court by December 3, 2021, and to include a statement of any agreements reached with the
binders. (Doc.. No. 327.)
On December 2, 2021, Florence provided the Court with a trial exhibit binder containing
his proposed Exhibits 1, 2, 3, and 4, but did not include any statement that the parties had agreed
to the introduction of Exhibits 3 and 4. Florence also did not include Anderson’s deposition in the
proposed deposition designations that he exchanged with the United States and filed with the
Court. (Doc. No. 330.)
The Court convened counsel for a telephone conference on December 3, 2021, to address
several outstanding issues, including Florence’s exhibits. When asked if the parties had reached
agreement regarding Exhibits 3 and 4, counsel for the United States informed the Court that no
agreement had been reached and that, in an earlier meeting of counsel regarding stipulations,
counsel for the United States had objected to those exhibits. Florence’s counsel stated that he
understood the Court to have ruled in the November 19, 2021 pretrial conference that these exhibits
could be introduced.
The Court ordered Florence’s counsel to file “any argument in support of the admission”
of Exhibits 3 and 4 and provided the United States an opportunity to respond. (Doc. No. 338.) In
response to the Court’s order, Florence filed a memorandum arguing that Anderson’s deposition
is admissible under Federal Rule of Civil Procedure 32(a)(4) because Florence believes Anderson
is currently out of the country and unable to testify at trial, and under Rule 32(a)(4)(E) because
5

Anderson “attempt[ed] to defraud the government and used other doctors as pawns in his scheme.”
(Doc. No. 339, PageID# 2929.) Florence further argues that Exhibit 3 should be admitted under
Rule 32(a)(8) because Anderson and the State were both parties to the state proceedings in which
the deposition was taken, they are both former parties to this action, and because the state
proceedings involved “the ownership and management and practices of . . . Anderson owned
clinics.” (Id. at PageID# 2930.) Florence also asserts that Exhibit 4 should be admitted because he
issued a subpoena for the administrative proceeding record on November 12, 2021, that the State
of Tennessee “actually had full access to this record and deposition the entire time[,]” and that the
United States improperly “sought to . . . limit or eliminate the State of Tennessee’s involvement”
in this case to prevent admission of this evidence. (Id. at PageID# 2929–30.)
With regard to Exhibit 3, the United States responds that Anderson’s deposition is
inadmissible hearsay under Federal Rule of Evidence 802 and that Florence has not argued that it
is subject to any exception provided in Rule 803. (Doc. No. 340.) Further, the United States asserts
that “Anderson’s deposition may not be introduced into evidence pursuant to Federal Rule of Civil
Procedure 32, because the United States was not a party to the proceeding in question, Anderson
was dismissed as a party to this matter over three years ago in February 2018 . . . , and there has
been no showing that Anderson is ‘unavailable’ within the meaning of the [sic] Federal Rule of
Civil Procedure 32(a)(4) or Federal Rule of Evidence 804(a).” (Id. at PageID# 2939.) Finally, the
United States argues that admission of the exhibit would be “in clear contravention of this Court’s
prior pretrial orders regarding the disclosure of exhibits and designation of deposition testimony.”
(Id. at PageID# 2939.)
Regarding Exhibit 4, the United States asserts that the record of proceedings was not
produced in discovery or disclosed in accordance with the Court’s prior orders. (Doc. No. 340.)
The United States also argues that these documents contain inadmissible hearsay. (Id.) Finally, the
United States argues that the documents are not relevant to any issue in this proceeding and their
6

admission “risks creating a sideshow about the prior proceeding that would result in jury confusion
and waste time.” (Id. at PageID# 2939.)
II.

Analysis
A.

Anderson’s Deposition (Exhibit 3)

Federal Rule of Civil Procedure 32 addresses the use of depositions in court proceedings
and provides generally that depositions may be used against a party if “the party was present or
represented at the taking of the deposition or had reasonable notice of it,” the use would be
admissible for a testifying witness under the Federal Rules of Evidence, and the use meets one of
seven articulated purposes. Fed. R. Civ. P. 32(a). Rule 32(a)(4) provides for the use of a witness’s
deposition for any purpose if the witness is unavailable due to several listed factors. Fed. R. Civ.
P. 32(a)(4)(A)–(E). Rule 32(a)(8) provides that a deposition taken in an earlier action “may be
used in a later action involving the same subject matter between the same parties, or their
representatives or successors in interest, to the same extent as if taken in the later action” or as
allowed by the Federal Rules of Evidence. Fed. R. Civ. P. 32(a)(8).
Florence argues, first, that Anderson’s deposition is admissible under Rule 32(a)(4)
because “[t]he last knowledge we had of any whereabouts of Dr. Matt Anderson was that he was
out of country.” (Doc. No. 339, PageID# 2929.) A witness is considered unavailable for purposes
of Rule 32(a)(4) where “the witness is more than 100 miles from the place of hearing or trial or is
outside the United States, unless it appears that the witness’s absence was procured by the party
offering the deposition” or if “the party offering the deposition could not procure the witness’s
attendance by subpoena.” Fed. R. Civ. P. 32(a)(4)(B), (D). But Florence’s unsupported assertion
is not sufficient to invoke either provision. The burden to show a witness’s unavailability falls to
the party seeking to introduce the deposition, and a party does “not satisfy his burden by stating
merely that he d[oes] not know where [the witness] [i]s.” Jauch v. Corley, 830 F.2d 47, 50 (5th
Cir. 1987) (addressing earlier Rule 32(a)(3)). “Implicit in this provision is an obligation on the part
7

of the proponent to first exercise ‘reasonable diligence’ to procure the witness’s attendance by
subpoena.” Williams v. Johnson, 278 F.R.D. 1, 5 (D.D.C. 2011). Florence offers no proof or
argument that he made any efforts to procure Anderson’s attendance at trial. The Court has no way
to know the source of his single cursory statement of Anderson’s whereabouts or when Florence
got that information. Florence has not demonstrated admissibility under Rule 32(a)(4)(B) or (D).
See Williams, 278 F.R.D. at 6 (finding “informal” and “belated” attempts to locate a witness
“insufficient to discharge the [proponent’s] burden”).
Florence next invokes Rule 32(a)(4)(E), which allows for introduction of the testimony of
an unavailable witness “on motion and notice, that exceptional circumstances make it desirable—
in the interest of justice and with due regard to the importance of live testimony in open court—to
permit the deposition to be used.” Fed. R. Civ. P. 32(a)(4)(E). Florence argues that such
exceptional circumstances exist because “it is known that Matthew Anderson in fact was
attempting to defraud the government and used other doctors as pawns in his scheme.” (Doc.
No. 339, PageID# 2929.) But “the circumstances of a witness’s absence are exceptional when akin
to the witness being ‘unavailable or unable to testify because he is dead; at a great distance; aged,
ill, infirm, or imprisoned; or unprocurable through a subpoena.’” McDowell v. Blankenship, 759
F.3d 847, 851 (8th Cir. 2014) (quoting Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990)).
Thus, “the ‘exceptional circumstances’ must be a reason the deponent cannot appear, not merely
serious prejudice that would result if the court did not admit the deposition testimony.” Angelo v.
Armstrong World Indus., Inc., 11 F.3d 957, 963–64 (10th Cir. 1993) (citing Allgeier, 909 F.2d at
876)). Again, Florence has made no such showing.
Florence’s last argument is that the deposition is admissible under Rule 32(a)(8), which
allows that a deposition taken in an earlier action “may be used in a later action involving the same
subject matter between the same parties or their representatives or successors in interest to the
same extent as if taken in the later action.” Fed. R. Civ. P. 32(a)(8). Florence asserts that
8

Rule 32(a)(8) applies here because the State of Tennessee was a party to the administrative action
against him. (Doc. No. 339.) Florence argues that the fact that Tennessee is no longer a party to
this action should not prevent him from being able to use Anderson’s deposition under this
provision. (Id.) The premise of Florence’s argument assumes that he would have been able to use
Anderson’s deposition at trial under Rule 32(a)(8) had Tennessee remained in the action. But that
argument ignores the fact that, despite Tennessee’s role in both actions, the United States was not
a party to the state administrative proceeding and did not participate in Anderson’s deposition.
Florence has made no argument as to how his use of the deposition against the United States would
be permitted under Rule 32(a)(8)—with or without Tennessee in the case. His argument under this
provision must fail as well.
Finally, as the United States points out, the proper procedure for admission of deposition
testimony at trial is to read relevant portions of the transcript into evidence, not to offer the entire
deposition as an exhibit. See M.D. Tenn. Rule 39.01(c)(4). Further, Local Rule 39.01(c)(4)
requires that, “[i]n jury cases, when a deposition is to be used at trial as the basic testimony of a
witness, all counsel offering the deposition must, at least fourteen (14) days prior to the trial date
. . . advise opposing counsel of those portions of the deposition to be read from a transcript . . . to
the jury.” Id. Florence did not include any portion of Anderson’s deposition in the designations he
provided to the United States (Doc. No. 330), even after having been instructed by the Court that
it would address the deposition’s admissibility in the context of ruling on the parties’ designations
(Doc. No. 327). Anderson’s deposition must be excluded for these procedural reasons as well.
B.

Administrative Proceeding Record (Exhibit 4)

Florence makes no argument as to why the entire record of the state administrative
proceeding should be admitted as evidence in this case, other than to assert that, “[w]hether or not
this Department of the State appropriately complied with [Florence’s] subpoena request should
not be allowed to prejudice [Florence] in any way in this matter as appropriate steps were taken to
9

procure this evidence and supply it to all parties.” (Doc. No. 339, PageID# 2928.) Whether the
state administrative office performed Florence’s counsel’s job of ensuring that opposing counsel
and the Court received copies of the exhibit is of little consequence to the Court’s analysis. Of
much greater concern is the fact that Florence has not addressed why the entire record of a state
administrative proceeding would be relevant to this case under Federal Rule of Evidence 401 or
how he would overcome what the Court anticipates would be significant hearsay problems with
large parts of it. Nor has Florence addressed how offering the entire record of a different case
would not unduly confuse the jury in its task of reaching a fair verdict in this one.
Finally, although it is clear that—as Florence asserts—the parties have been discussing the
record in the administrative proceeding since at least 2018, Florence did not subpoena the record
until November 12, 2021, the date on which he included it as a proposed exhibit on his filed exhibit
list. (Doc. No. 311.) Florence could have addressed the relevance of this record by renewing the
motion to compel that he abandoned in 2018. He could have addressed its admissibility through a
motion in limine. The Court ordered him to address the admissibility of all of his proposed exhibits
after the pretrial conference (Doc. No. 320), but Florence did not address the state record or any
other exhibits in that briefing (Doc. No. 323). Instead, his counsel profess shock that there are
problems with the record’s admissibility when the question was finally called by the Court.
Florence’s counsel have expressed their dissatisfaction with “the procedure and form
utilized in Federal Court” and have urged the Court to “let this case be heard on the merits and not
put form over substance.” (Doc. No. 323, PageID# 2774, 2781.) But the discovery provisions of
the Federal Rules of Civil Procedure and this Court’s Local Rules and procedures “are aimed at a
common goal—providing the parties with enough information so that they may prepare fully for
trial.” 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1528 (3d ed.
updated Apr. 2021). It is these rules that “put an end to the ‘sporting theory of justice,’ by which
the result depends on the fortuitous availability of evidence or the skill and strategy of counsel[,]”
10

and ensure that a case’s merits are fully and fairly developed and heard. 8 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 2001 (3d ed. updated Apr. 2021) (citation
omitted). Florence’s counsel have raised what they claim to be the most important issues of their
case at the very last minute and filed a flurry of motions regarding their proof on the literal eve of
trial. (Doc. Nos. 334, 335, 337.) Following the rules throughout this case could have kept them
from this predicament. Their failure to do so has led to what is—because of those rules—a
predictable unfavorable result.
III.

Conclusion
For the foregoing reasons, Florence’s proposed Exhibits 3 and 4 will not be admitted at
trial. 4
It is so ORDERED.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

4

Florence has also “request[ed] that the Court attach the hard copies of the Technical Record
marked as Defendant’s Exhibit 4 and . . .the deposition of Matthew Anderson marked Defendant’s
Exhibit 3” to his filing arguing for the admission of these exhibits. (Doc. No. 339.) This request
will be granted and will be addressed by separate order.
11