United States of America et al v. St. Mark's Hospital et al
Filing
526
MEMORANDUM DECISION AND ORDER: granting 460 Relator's Motion for Leave to Amend Relator's Third Amended Complaint for Damages and Other Relief Under the False Claims Act; denying 458 Expedited Motion to Quash or Limit R elator's FRCP 45 Subpoena to St. Mark's Hospital; granting 459 Relator's Amended Expedited Motion to Compel Defendants to Produce Responsive Medical Records; denying 474 Relator's Expedited Motion to Compel Defendant Sherman S orensen, M.D. to Provide Complete and Responsive Interrogatory Answers; denying 476 Relator's Expedited Motion to Compel Defendant Sorensen Cardiovascular Group to Provide Complete and Responsive Interrogatory Answers; denying 477 Sorensen D efendants' Expedited Motion to Compel Compliance with the Court's Order and Request for Sanctions and Fees; denying 505 Relator's Emergency Motion Filed Under Seal for Leave to Supplement; granting 519 Relator's Motion to Modify the Court's Prior Order Granting an Extension of Expert Deadlines. Signed by Magistrate Judge Daphne A. Oberg on 8/20/2020. (jds)
Case 2:16-cv-00304-TS-DAO Document 526 Filed 08/20/20 PageID.22278 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER REGARDING (1) RELATOR’S
MOTION FOR LEAVE TO AMEND
RELATOR’S THIRD AMENDED
COMPLAINT (DOC. NO. 460); (2) THE
PARTIES’ SHORT FORM DISCOVERY
MOTIONS (DOC. NOS. 458, 459, 474, 476,
477); (3) RELATOR’S MOTION FOR
LEAVE TO SUPPLEMENT (DOC. NO.
505); AND (4) RELATOR’S MOTION FOR
EXTENSION OF EXPERT DEADLINES
(DOC. NO. 519)
UNITED STATES OF AMERICA, ex rel.
GERALD POLUKOFF, M.D.,
Relator/Plaintiff,
vs.
SHERMAN SORENSEN, M.D., and
SORENSEN CARDIOVASCULAR GROUP,
Defendants.
Case No. 2:16-cv-00304-TS-DAO
Judge Ted Stewart
Magistrate Judge Daphne A. Oberg
Before the court is (1) Relator’s Motion for Leave to Amend Relator’s Third Amended
Complaint for Damages and Other Relief Under the False Claims Act (31 U.S.C. § 3730) (“Mot.
to Am.”) (Doc. No. 460); (2) the Sorensen Defendants’ Expedited Motion to Quash or Limit
Relator’s FRCP 45 Subpoena to St. Mark’s Hospital (“Mot. to Quash”) (Doc. No. 458); (3)
Relator’s Amended Expedited Motion to Compel Defendants to Produce Responsive Medical
Records (“Medical Records Mot.”) (Doc. No. 459); (4) Relator’s Expedited Motion to Compel
Defendant Sherman Sorensen, M.D. to Provide Complete and Responsive Interrogatory Answers
(“Dr. Sorensen Interrog. Mot.”) (Doc. No. 474); (5) Relator’s Expedited Motion to Compel
Defendant Sorensen Cardiovascular Group to Provide Complete and Responsive Interrogatory
Answers (“SCG Interrog. Mot.”) (Doc. No. 476); (6) the Sorensen Defendants’ Expedited
Motion to Compel Compliance with the Court’s Order and Request for Sanctions and Fees
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(“Sorensen Defs.’ Mot. to Compel”) (Doc. No. 477); and (7) Relator’s Emergency Motion Filed
Under Seal for Leave to Supplement (“Mot. to Suppl.”) (Doc. No. 505). The court held a
hearing on these motions on June 23, 2020 (Doc. No. 509). The court also considers Relator’s
Motion to Modify the Court’s Prior Order Granting an Extension of Expert Deadlines (“Expert
Deadline Mot.”) (Doc. No. 519), which was filed after the June 23, 2020 hearing.
Having considered the parties’ briefing and argument and for the reasons detailed below,
the court (1) GRANTS Relator’s Motion to Amend (Doc. No. 460); (2) DENIES the Sorensen
Defendants’ Motion to Quash (Doc. No. 458); (3) GRANTS the Relator’s Medical Records
Motion (Doc. No. 459); (4) DENIES the Relator’s Dr. Sorensen Interrogatory Motion (Doc. No.
474); (5) DENIES the Relator’s SCG Interrogatory Motion; (6) DENIES the Sorensen
Defendants’ Motion to Compel (Doc. No. 477); (7) DENIES Relator’s Motion to Supplement
(Doc. No. 505); and (8) GRANTS Relator’s Expert Deadline Motion (Doc. No. 519).
BACKGROUND
In this case, United States of America ex rel. Gerald Polukoff, M.D., (“Relator”) alleges,
among other things, that Defendant Sherman Sorensen, M.D., and Defendant Sorensen
Cardiovascular Group (“SCG”) (together, the “Sorensen Defendants”) submitted claims for
patent foramen ovale (“PFO”) and atrial septal defect (“ASD”) closures and related procedures
which were medically unnecessary in violation of the False Claims Act. (Third Am. Compl. for
Damages and Other Relief under the False Claims Act (31 U.S.C. § 3730) (“Third Am. Compl.”)
¶ 2, Doc. No. 421.) The dispute central to the motions before the court is whether the Relator is
entitled to hundreds of patient records for alleged false claims that are not associated with
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individual patients listed in the Relator’s Third Amended Complaint. (See, e.g., Mot. to Quash 2,
Doc. No. 458; Mot. to Am. 5–6, Doc. No. 460.)
The Third Amended Complaint includes a list of approximately 339 patients upon whom
Dr. Sorensen allegedly performed PFO/ASD closures. (See Third Am. Compl. ¶ 124, Doc. No.
421.) The Relator obtained this list of patients from a hard drive he acquired while employed at
SCG, which included patient billing data. (Id. ¶ 122; see also Mot. to Am. 5, Doc. No. 460.) In
the Third Amended Complaint, the Relator indicated the list of patients and procedures included
in the complaint is incomplete because at the time of filing he did not have billing information
from Intermountain Medical Center or St. Mark’s Hospital, hospitals where Dr. Sorensen
performed PFO/ASD closures. (Third Am. Compl. ¶ 124.)
In June 2019, the Sorensen Defendants obtained a spreadsheet from Intermountain
Medical Center listing approximately 920 procedures related to patients upon whom Dr.
Sorensen performed PFO/ASD closures that were billed to the federal government between 2002
and 2012. (Ex. C to Dr. Sorensen Interrog. Mot., Email from M. Strout to G. Brown (Mar. 24,
2020), Doc. No. 474-3 at 2–4.) Although a version of this spreadsheet was originally produced
in the settlement context to the Relator, the Relator first received it outside the settlement
context, and in a more complete form, in March 2020. (Mot. to Am. 6, Doc. No. 460.) The
Relator has since propounded discovery requests regarding these additional patients, included
them in his own supplemental discovery responses, and seeks to add them to the operative
complaint. 1
In ruling on these motions, the court takes account of several important dates in the
scheduling order. September 30, 2019 was the last day for parties to move to amend pleadings.
1
On April 22, 2020, the Relator issued a subpoena to the Heart Center seeking, among other
things, medical records and billing records for patients that underwent PFO/ASD closures
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(Scheduling Order 4, Doc. No. 262.) Fact discovery ended on June 30, 2020. (Order Granting
Parties’ Joint Mot. for Extension of Deadlines, Doc. No. 432.) The last day to serve written
discovery was May 27, 2020. (Id.) Expert discovery was bifurcated between the standard of
care/medical necessity and all other topics. (Scheduling Order 4, Doc. No. 262.) Expert reports
on all remaining topics are due on September 5, 2020, and expert discovery is currently
scheduled to close on December 19, 2020. (Order Granting Relator’s Mot. for Extension of
Deadlines for Expert Discovery, Doc. No. 514.)
DISCUSSION
The court considers the Relator’s motion to amend first as the outcome of this motion
informs the remaining discovery motions at issue.
I.
MOTION FOR LEAVE TO AMEND (DOC. NO. 460)
With his Motion for Leave to Amend Relator’s Third Amended Complaint for Damages
and Other Relief under the False Claims Act (31 U.S.C. § 3730) and Memorandum of Law in
Support (Doc. No. 460), the Relator seeks to add approximately 500 patients to the list of those
who allegedly received “medically unnecessary PFO closures and related procedures that were
billed to Medicare, Medicaid, or TRICARE by Sorensen.” (See Ex. A to Mot. to Am., Fourth
Am. Compl. for Damages and Other Relief Under the False Claims Act (31 U.S.C. § 3730)
performed by Dr. Sorensen between 2002 and 2011. (Ex. A to Opp’n to Mot. to Quash,
Subpoena 4, Doc. No. 462-1.) The Relator attached a list of approximately 900 patients to aid
the Heart Center in identifying responsive records. (Id.) The Relator also included
approximately 500 additional patients, beyond the 339 patients listed in his operative complaint,
in supplementing his responses to the Sorensen Defendants’ Interrogatories 6 and 10 on May 8,
2020. (See Sorensen Defs.’ Mot. to Compel 2, Doc. No. 477; see also Ex. 1 to Sorensen Defs.’
Mot. to Compel, Relator’s Third Am. Resps. to Some of the Sorensen Defs.’ First Set of
Interrogs., Doc. Nos. 477-1 & 477-2.) The Relator also seeks to amend his pleading by adding
approximately 500 additional patients to the list of those that allegedly received “medically
unnecessary PFO closures and related procedures that were billed” to federal payees by the
Sorensen Defendants. (See Ex. A, Proposed Fourth Am. Compl. ¶ 124, Doc. No. 460-1.)
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(“Proposed Fourth Am. Compl.”) ¶ 124, Doc. No. 460-1; see also Defs.’ Opp’n to Relator’s Mot.
for Leave to Am. Relator’s Third Am. Compl. (“Opp’n to Mot. to Am.”) 2, Doc. No. 492.) The
proposed amendment adds no new causes of action; this is the only proposed change.
This proposed amendment reflects the Relator’s attempt to address the Sorensen
Defendants’ argument that the Relator may only obtain discovery related to patients listed in the
Third Amended Complaint. (See Mot. to Am. 10, Doc. No. 460 (“Significantly, Relator’s
proposed amendment contains revisions to the billing listing [in] direct response to concerns and
arguments asserted by the Sorensen Defendants about discovery.”) The Sorensen Defendants
have argued repeatedly that patient records related to individuals who are not listed in the
operative complaint are irrelevant and not subject to discovery. (See Mot. to Quash 2–3, Doc.
No. 458) (arguing “patient records not identified in the [Third Amended Complaint]” are
irrelevant); see also Sorensen Mot. 3, Doc. No. 477 (seeking an order “limiting Relator to the
patients in the [Third Amended Complaint] with closures” with respect to his discovery
responses).) At the June 23 hearing, the Relator affirmed his position that it is legally
unnecessary to amend the complaint because not every false claim alleged must be included in
the operative complaint. He explained that he filed the motion to amend to meet the Sorensen
Defendants’ discovery objections head on. (Tr. of Mot. Hearing 90:6–11, Doc. No. 515.)
After explaining the rationale for seeking leave to amend in his motion, the Relator
addresses the specific requirements of Rule 15 of the Federal Rules of Civil Procedure. With
respect to timeliness, he points to the difficulty he has faced in obtaining relevant records from
the Sorensen Defendants. (Mot. to Am. 6, 9–10, Doc. No. 460.) He also argues the Sorensen
Defendants will suffer no prejudice because the amendment does not change the nature of the
Relator’s allegations: that Dr. Sorensen “performed medically unnecessary PFO closures,
sometimes calling them ASD closures, and that he submitted his billing for reimbursement to
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government payers and was paid.” (Id. at 10.) In opposition, the Sorensen Defendants argue the
motion to amend should be denied based on delay, prejudice, and futility. (Opp’n to Mot. to Am.
7–9, Doc. No. 492.)
A. Leave to Amend Under Rule 15(a)(2)
Federal Rule of Civil Procedure 15(a)(2) provides that once the deadline for amending a
pleading as a matter of course has passed, “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). District courts
“should freely give leave [to amend] when justice so requires.” Id. Leave to amend should be
denied “only for reasons such as ‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the]
amendment.’” United States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166
(10th Cir. 2009) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). A
district court’s decision to deny leave to amend under Rule 15 falls within its discretion, and the
court of appeals will review it only for abuse of discretion. Id.
1. Undue Prejudice
The “most important[] factor in deciding a motion to amend the pleadings[] is whether
the amendment would prejudice the nonmoving party.” Minter v. Prime Equip. Co., 451 F.3d
1196, 1207 (10th Cir. 2006). Prejudice typically occurs “when the amended claims arise out of a
subject matter different from what was set forth in the complaint and raise significant new
factual issues.” Id. at 1208. It can also arise when “the amendment unfairly affects the
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defendants in terms of preparing their defense to the amendment.” Id. at 1208 (citing Patton v.
Guyer, 443 F.2d 79, 86 (10th Cir. 1971)).
The Sorensen Defendants argue the amendment would cause prejudice because it would
make the “cost of litigating the underlying claims prohibitive for the remaining Defendants.”
(Opp’n to Mot. to Am. 9, Doc. No. 492.) They also claim that “[e]ach patient added to the
complaint[] creates a new claim within the action that must be fleshed out.” (Id. at 3.) In
addition, the Sorensen Defendants argue the amendment would extend fact discovery and
prolong the case. (Id. at 8.) The Relator disputes that each individual false claim must be
included in an operative pleading and submits that his allegations have been clearly set forth
from the beginning of the case and remain substantially unchanged with the proposed
amendment. (Reply in Support of Mot. for Leave to Am. Compl. for Damages and Other Relief
Under the False Claims Act (31 U.S.C. § 3730) (“Reply to Mot. to Am.”) 4, 6–9, Doc. No. 500.)
The court finds the Sorensen Defendants would not suffer undue prejudice if the
amendment is allowed. The allegations in the third and fourth amended complaints are the same,
“that Defendant Dr. Sorensen performed medically unnecessary PFO closures, sometimes calling
them ASD closures, and that he submitted his billing for reimbursement to government payers
and was paid.” (Mot. to Am. 10, Doc. No. 460; see also Third Am. Compl. ¶ 124, Doc. No. 421
(including a list of “some of those medically unnecessary PFO closures and related procedures
that were billed to Medicare, Medicaid, or TRICARE by [Dr.] Sorensen . . . along with patient
account numbers, dates of service, procedure codes and the amounts billed to the federal
payer.”); Proposed Fourth Am. Compl. ¶ 124, Doc. No. 460-1 (including the same but with
additional patients listed).) The Fourth Amended Complaint does nothing more than provide
additional specificity regarding the claims. See Advanced Recovery Systems, LLC v. Am.
Agencies, LLC, No. 2:13-cv-283-DAK, 2014 U.S. Dist. LEXIS 156669, at *5 (D. Utah Nov. 4,
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2014) (unpublished) (allowing leave to amend because the additional “claims and parties are all
interrelated to the original dispute”).
Whether or not the court grants the motion to amend, the Sorensen Defendants would
need to litigate any potential liability regarding these patients because the Relator is using them
as a basis for his claims and, as discussed below, the court finds discovery as to these patients to
be independently permissible. Additionally, to some degree, the Sorensen Defendants’ position
in discovery that only records of individuals listed in the operative complaint are relevant has
necessitated the amendment the Relator seeks. (See, e.g., Mot. to Quash 2–3, Doc. No. 458
(arguing that “Relator’s request for patient records not identified in the [Third Amended
Complaint] is overly broad and seeks irrelevant information”).) Given this posture, any
prejudice the Sorensen Defendants may suffer is not undue.
2. Undue Delay
“[U]ntimeliness alone is a sufficient reason to deny leave to amend, especially when the
party filing the motion has no adequate explanation for the delay.” Frank v. U.S. West, Inc., 3
F.3d 1357, 1365–66 (10th Cir. 1993) (internal citations omitted). The pertinent inquiry is the
amount of time between uncovering the facts on which the amendment is based and the time of
filing. See Leatherwood v. Rios, 705 F. App’x 735, 740 (10th Cir. 2017) (unpublished) (“Leave
to amend may also be denied for undue delay when the moving party was aware of the facts on
which the amendment was based for some time prior to the filing of the motion to amend.”).
As discussed above, the Relator obtained new versions of a spreadsheet of patient and
billing information in March 2020 from the Sorensen Defendants. A similar spreadsheet, with
redacted billing amounts, had been produced initially for settlement purposes. (Reply to Mot. to
Am. 4, Doc. No. 500.) Although the Sorensen Defendants received the modified version of the
spreadsheet containing the billing amounts in 2019, they first produced the spreadsheets to the
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Relator outside the settlement context in March 2020. (Id. at 2–4.) The Relator used this
information, as well as other information obtained in discovery, in support of his amended
pleading. 2 (Mot. to Am. 9–10, Doc. No. 460.) The court finds that while the Relator filed his
motion to amend after the deadline, a two-month delay in filing leave to amend justifying the
amendment is not undue where the Relator newly obtained access to this information in a more
complete form outside the settlement context.
3. Futility of the Proposed Amendment
With regard to futility, the Sorensen Defendants argue that some number of the specific
claims listed in the proposed amendment would be barred by the statute of limitations and fail to
meet the particularity requirements of Rule 9(b) of the Federal Rules of Civil Procedure. (Opp’n
to Mot. to Am. 7–8, Doc. No 492.) 3 Specifically, they argue the proposed amendment will “add
claims that the United States was aware of since this case was initiated and will raise issues
related to whether these claims can relate back to avoid a statute of limitations problem.” (Id. at
7.) The Sorensen Defendants maintain that they cannot address the statute of limitations issue
2
The court rejects the Sorensen Defendants’ argument that because a version of the spreadsheet
at issue was originally produced for settlement purposes, it follows that the information it
contained cannot be used—even though properly obtained through later discovery processes.
(See Opp’n to Mot. to Am. 4, Doc. No. 492.) See In re Urethane Antitrust Litig., No. 04-MD1616-JWL, 2009 U.S. Dist. LEXIS 60496, at *39 (D. Kan. July 15, 2009) (unpublished)
(declining to recognize a settlement privilege as an exemption “to the general policy of broad
discovery”); see also Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 052164-MLB-DWB, 2007 U.S. Dist. LEXIS 31718, at *17–18 (D. Kan. Apr. 27, 2007)
(unpublished) (declining to recognize a settlement privilege and instead determining the
discoverability of documents based on relevance). Moreover, the spreadsheets produced in
response to the subpoena were not identical to the spreadsheets used in settlement negotiations,
and Intermountain Healthcare’s own counsel directed the Relator to obtain the spreadsheets from
the Sorensen Defendants. (Reply to Mot. to Am. 3, Doc. No. 500.)
3
In their opposition, the Sorensen Defendants questioned whether the Relator was the original
source of the information he seeks to add to the complaint. (Opp’n to Mot. to Am. 7, Doc. No.
492.) However, the Sorensen Defendants explicitly abandoned this argument during the hearing.
(Tr. of Mot. Hearing 100:1–6, Doc. No. 515.) Consequently, the court does not address it here.
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“more fully without knowing the full nature” of the proposed claims. (Id. at 8–9.) In support of
this argument, the Sorensen Defendants filed a notice of supplemental authority citing two cases
that analyze the relation-back doctrine in the context of the False Claims Act. 4 (See Notice of
Defs.’ Suppl. Authorities 1–2, Doc. No. 512) (citing Cochise Consultancy, Inc. v. United States
ex rel. Hunt, 139 S. Ct. 1507, 1510 (2019) and United States ex rel. Gohil v. Aventis, Inc., No.
02-2964, 2017 U.S. Dist. LEXIS 3236, at *10–14 (E.D. Pa. Jan. 9, 2017) (unpublished)).)
Next, the Sorensen Defendants argue the Relator’s proposed pleading is futile because
“each patient creates an entirely new claim arising of a separate occurrence,” and the Relator has
not plead each required element of a false claim for each new, proposed patient. (Id. at 2–4.) As
an example, they argue the new patients the Relator proposes to add to the complaint cannot be
tied to “a false claim for that procedure” billed by Dr. Sorensen to the federal government.
(Opp’n to Mot. to Am. 4, Doc. No. 492.)
In response to these futility arguments, the Relator indicates the applicable statute of
limitations is ten years. He argues this poses no problem with respect to the patients he seeks to
add to the complaint. (Tr. of Mot. Hearing 106:15-22, Doc. No. 515.) Next, the Relator states
that he is not required to “have a billing and medical record in hand for each patient” at the
pleading stage. (Reply to Mot. to Am. 4, Doc. No. 500.)
Notably, the Sorensen Defendants’ argument that the new claims sought to be added are
inadequately pleaded runs counter to the Tenth Circuit’s holding in United States ex rel. Lemmon
v. Envirocare of Utah, Inc.:
The federal rules do not require a plaintiff to provide a factual basis for every
allegation. Nor must each allegation, taken in isolation, contain all the necessary
information. Rather, to avoid dismissal under Rules 9(b) and 8(a), plaintiffs need
4
The court does not address the cited cases here, as the Sorensen Defendants’ relation-back
argument is better suited for a dispositive motion than for a futility determination, as otherwise
explained.
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only show that, taken as a whole, a complaint entitles them to relief. See, e.g.,
Twombly, 550 U.S. at 554–56. The complaint must provide enough information
to describe a fraudulent scheme to support a plausible inference that false claims
were submitted.
614 F.3d 1163, 1173 (10th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–56
(2007)). Moreover, the Sorensen Defendants do not claim their statute-of-limitations or
specificity-in-pleading arguments apply to all individuals the Relator proposes to add to the
complaint. Based on the briefing, the court is uninformed as to which specific patients the
Sorensen Defendants challenge and consequently cannot adequately evaluate their futility
arguments.
Where the parties presented limited arguments on futility, the court finds the question
better suited for dispositive motions. See Lambe v. Sundance Mt. Resort, No. 2:17-cv-00011JNP, 2018 U.S. Dist. LEXIS 162268, at *7–8 (D. Utah Sept. 21, 2018) (unpublished) (declining
to engage in a futility analysis where “the viability of [the new] claim is more appropriately
addressed in the context of a dispositive motion as opposed to a motion for amendment”).
Consequently, the court gives this issue little weight and finds the Relator’s motion to amend
should not be denied based on undue delay, undue prejudice, or futility. The court finds the
motion otherwise satisfies the requirements of Rule 15(a)(2).
B. Leave to Modify the Scheduling Order Under Rule 16(b)(4)
In addition to considering the Rule 15(a) standard, the court must consider a motion for
leave to amend filed after the deadline under Rule 16(b) of the Federal Rules of Civil Procedure.
Tenth Circuit precedent requires a party seeking to amend a pleading after the deadline to
demonstrate both “(1) good cause for seeking modification [of the scheduling order] under Fed.
R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells
Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal citations omitted).
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Although neither party squarely addresses this requirement, the court finds the Relator has
demonstrated good cause to modify the scheduling order.
Rule 16(b)(4) states “[a] schedule may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Tenth Circuit interprets Rule 16 to require a
showing that the “scheduling deadlines cannot be met despite [the movant’s] diligent efforts.”
Gorsuch, 771 F.3d at 1240 (alteration in original) (internal quotation omitted). A district court’s
refusal to modify a scheduling order falls within its discretion, and the court of appeals reviews it
only for abuse of discretion. Id. A movant can satisfy this good cause requirement if, for
example, it “learns new information through discovery or if the underlying law has changed.”
Id. However, if a party “knew of the underlying conduct but simply failed to raise [its] claims”
earlier, it cannot establish “good cause” under Rule 16. Id. The moving party must show good
cause both for failing to move to amend prior to the cutoff date and for the length of time
between learning of the new information warranting amendment and moving to amend. Birch v.
Polaris Indus., 812 F.3d 1238, 1248 (10th Cir. 2015).
As justification for moving to amend on May 20, 2020, well after the September 30, 2019
deadline, the Relator contends the Sorensen Defendants have repeatedly obstructed his attempts
to obtain relevant patient records. He explains that the timing of his motion is dictated by the
Sorensen Defendants’ discovery positions. (Reply to Mot. to Am. 5, Doc. No. 500; Mot. to Am
5–8, Doc. No. 460.)
The Relator claims he only learned on March 20, 2020 that a more complete spreadsheet
of patients who had received PFO/ASD closures and related procedures from Mr. Sorensen
between 2002 and 2011 had been produced by Intermountain Medical Center to the Sorensen
Defendants in 2019, outside the settlement context. (See Ex. J to Reply to Mot. to Am., Decl. of
G. Brown ¶¶ 28–30, Doc. No. 500-3.) The Relator obtained this spreadsheet from counsel for
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the Sorensen Defendants on March 24, 2020. (Id. ¶ 30.) Unlike the version of the spreadsheet
produced during settlement negotiations, the Relator considered the version produced in the
discovery context to be “fair game” to use as evidence. (Reply to Mot. to Am. 4, Doc. No. 500.)
The Relator used the information in the spreadsheet, in addition to other medical and billing
information obtained through discovery, to add to the list of patients already included in the
operative complaint. (Reply to Mot. to Am. 2–3, Doc. No. 500.) The Relator filed his motion
two months after obtaining the spreadsheet in a non-settlement context. The Sorensen
Defendants, on the other hand, assert that the motion to amend constitutes undue delay since it
was filed near the end of fact discovery without explanation by the Relator. (Opp’n to Mot. to
Am., 7–8, Doc. No. 492.)
Given this timeline, it would not have been feasible, or even possible, for the Relator to
amend the pleading by the September 30, 2019 deadline. (Scheduling Order 4, Doc. No. 262.)
Consequently, the court finds that good cause exists for the Relator’s failure to move to amend
prior to the cutoff date.
Next, the court considers whether Relator established good cause of the length of time
between learning of the new information warranting amendment and moving to amend. See
Birch, 812 F.3d at 1248. The Relator waited two months to seek leave to amend after obtaining
the Intermountain Medical Center spreadsheets from the Sorensen Defendants. In the interim,
the Relator continued his attempts to obtain discovery from the Sorensen Defendants about
individuals not listed in the complaint but was met with opposition every time. (Reply to Mot. to
Am. 8, Doc. No. 500.) The court finds the Relator’s diligence establishes good cause for the
timing of Relator’s motion for leave to amend.
For these reasons, the court GRANTS the Relator’s Motion to Amend (Doc. No. 460).
Although the Relator seeks leave to amend after the deadline in the operative scheduling order,
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his delay was justified given his diligence in attempting to obtain the records underlying the
amendment. The Relator’s motion to amend should not be denied based on undue delay, undue
prejudice or futility, and it otherwise satisfies the requirements of Rule 15(a)(2). The Relator is
ORDERED to file his Fourth Amended Complaint (Doc. No. 460-1) within seven days of this
order.
II.
DISCOVERY MOTIONS
As a preliminary matter, the parties’ dispute about whether the Relator may seek
discovery regarding patients or procedures outside of the operative complaint is largely resolved
by the court’s grant of the motion to amend. However, to clarify for purposes of the remaining
motions, the court finds discovery is not limited to specific acts pleaded in the operative
complaint.
The Relator contends the medical and billing records for individuals not directly listed in
the operative complaint are relevant and discoverable and that their production is proportional to
the needs of the case. (See, e.g., Medical Records Mot. 4, Doc. No. 459.) The Sorensen
Defendants, on the other hand, assert that discovery must be limited to the individuals listed in
the operative complaint. (See Opp’n to Medical Records Mot. 2, Doc. No. 464.) However, they
provide no authority supporting the argument that discovery cannot extend beyond the operative
complaint to uncover facts substantially similar to the underlying allegations.
In deciding a similar discovery question in a False Claims Act case, a court in this district
held that “the specific examples of fraudulent behavior pled in the Complaint do not strictly limit
discovery to those acts.” United States ex rel. Brooks v. Stevens-Henager Coll., Inc., No. 2:15cv-00199-JNP-EJF, 2018 U.S. Dist. LEXIS 2329, at *18 (D. Utah Jan. 4, 2018) (unpublished).
Other courts have reached similar holdings, finding, for example, that a relator in a qui tam case
should not be prevented “from discovering other examples of behavior substantially similar to
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those described in the complaint and that similarly fit the pattern of conduct on which the
complaint is focused.” United States ex rel. McCartor v. Rolls-Royce Corp., No. 1:08-cv-00133WTL-DML, 2013 U.S. Dist. LEXIS 136387, at *6 (S.D. Ind. Sept. 24, 2013) (unpublished).
The rules governing discovery also inform this analysis. Rule 26(b)(1) of the Federal
Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). “Information within [the] scope of discovery need not be admissible in
evidence to be discoverable.” Id. All permissible discovery is then measured against the
requirements of proportionality, which requires consideration of “the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Id. While the party
seeking discovery has the burden of showing relevance, the “party resisting discovery has the
burden of showing undue burden or expense.” Landry v. Swire Oilfield Servs., L.L.C., 323
F.R.D. 360, 381 (D.N.M. 2018).
In evaluating the discovery sought by the Relator in this matter, the question is not which
precise individuals are included in the operative complaint, but which patients’ records satisfy
the requirements of relevance and proportionality under Rule 26 of the Federal Rules of Civil
Procedure. To the extent the Relator seeks patient billing and medical records related to
PFO/ASD closures and related medical procedures performed by Dr. Sorensen between 2002
and 2011, the court finds these records relevant to the claims asserted by the Relator. The court
discusses specific issues of proportionality as necessary below.
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A. Sorensen Defendants’ Expedited Motion to Quash or Limit Relator’s FRCP 45
Subpoena to St. Mark’s Hospital (Doc. No. 458)
In their Expedited Motion to Quash or Limit Relator’s FRCP 45 Subpoena to St. Marks’
Hospital, the Sorensen Defendants seek to quash a subpoena the Relator issued to the Heart
Center, which requests medical and billing files for approximately 900 patients, the majority of
whom are not listed in the Third Amended Complaint. (Mot. to Quash. 2, Doc. No. 458.)
Alternatively, the Sorensen Defendants seek a protective order limiting the Relator’s subpoena to
patients identified in the complaint. (Id.) Specifically, the Sorensen Defendants assert that the
records are irrelevant and cannot be produced absent a court order. (Id.) The Sorensen
Defendants claim the Relator’s subpoena is an inappropriate attempt to circumvent the close of
fact discovery and enlarge the case. (Id. at 3.)
In response, the Relator argues the Sorensen Defendants have no standing to quash
Relator’s third-party subpoena. (Relator’s Resp. in Opp’n to Defs.’ Expedited Mot. to Quash or
Limit Relator’s FRCP 45 Subpoena to St. Mark’s Hospital (“Opp’n to Mot. to Quash”) 1, Doc.
No. 462.) He further asserts that the subpoena is relevant and permissible under Rule 26(b), as it
seeks: (1) a copy of any agreement between the Heart Center and Dr. Sorensen regarding storage
and maintenance of medical, billing, and business records of the Sorensen Cardiology Group;
and (2) medical and billing records for patients who underwent PFO/ASD closures performed by
Dr. Sorensen from 2002 to 2011, billed to the federal government, and in the possession of the
Heart Center. (Opp’n to Mot. to Quash 1, Doc. No. 462; see also Ex. 1 to Opp’n to Mot. to
Quash, Subpoena, Doc. No. 462-1.) The subpoena includes a partial list of such patients. (Ex. 1
to Opp’n to Mot. to Quash, Subpoena, Doc. No. 462-1.)
The court finds the Sorensen Defendants lack standing to move to quash the subpoena.
Typically, “a party does not have standing to object to a subpoena issued to a third party, unless
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the party challenging the subpoena has a personal right or privilege with respect to the subject
matter sought by the subpoena.” Johnson v. USANA Health Scis., No. 2:17-cv-652-RJS-DBP,
2019 U.S. Dist. LEXIS 198814, at *6 (D. Utah Nov. 15, 2019) (unpublished) (internal quotations
omitted). For example, a party may have a right to challenge a third-party subpoena seeking her
employment, banking, or psychiatric records. See W. Vision Software v. Process Vision, LLC,
No. 1:12-cv-155-RJS-PMW, 2013 U.S. Dist. LEXIS 50483, at *3–4 (D. Utah Apr. 8, 2013)
(unpublished). A party objecting to the issuance of a third-party subpoena based on a personal
right or privilege has the burden of establishing the privilege applies. Johnson, 2019 U.S. Dist.
LEXIS 198814 at *7–8 (citing Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of
Haverstraw, 211 F.R.D. 658, 661 (D. Kan. 2003)).
At the hearing and during the meet-and-confer process, the Sorensen Defendants based
their claim of standing on the personal right or privilege doctrine because the records were
originally prepared and maintained by SCG. (See Ex. 5 to Opp’n to Mot. to Quash, Email from
V. Wilde to G. Brown (May 18, 2020), Doc. No. 462-5; see also Tr. of Mot. Hearing 11:18–
12:1, Doc. No. 515.) However, this claim is unsupported by case law; the Sorensen Defendants
cite no authority for extending the personal right or privilege to the physician who created the
patient record. In the absence of authority supporting this doctrinal extension, the court finds the
Sorensen Defendants have no personal privilege over a corporation’s business records.
Consequently, the Sorensen Defendants lack standing to challenge the subpoena on these
grounds.
Even if the Sorensen Defendants did have standing to move to quash, the court finds the
additional grounds they cite for quashing the subpoena to be baseless. The Sorensen Defendants
argue the records cannot be released without a court order, the subpoena is an improper attempt
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to circumvent discovery deadlines, and that it seeks irrelevant information. (See Mot. to Quash
2–3, Doc. No. 458.)
Addressing these individually, first, to the extent the Sorensen Defendants are correct that
the records cannot be released without a court order, the court orders production of the records
here. Issues of patient confidentiality are adequately addressed by the Standard Protective Order
for the District of Utah which provides mechanisms by which protected health information may
be safely disclosed in litigation. See DUCivR 26-2(a). (See also Ex. C to Opp’n to Mot. to
Quash, Letter from P. Stirba to G. Brown (Aug. 26, 2019) at 2, Doc. No. 462-3.)
Second, the Relator’s subpoena was timely served on April 27, 2020, before the written
discovery deadline of May 27, 2020, so no discovery deadline has been circumvented. (See
Order Granting Parties’ Joint Mot. for Extension of Deadline, Doc. No. 432.) Moreover, the
Relator’s subpoena to the Heart Center was necessitated in part by the Sorensen Defendants’
assertions that medical records for patients on whom Dr. Sorensen performed PTO/ASD
closures, and which the Relator repeatedly sought directly from the Sorensen Defendants, were
not in their possession. (See, e.g., Ex. G. to Medical Records Mot., Letter from V. Wilde to G.
Brown (Apr. 23, 2020), Doc. No. 459-7.) Given these facts, the court finds nothing improper
about the timing or purpose of the Relator’s subpoena.
Third, as discussed above, the court finds the patient records requested in the Heart
Center subpoena directly relevant to the claims and defenses in this matter. For these reasons,
the court denies the Sorensen Defendants’ Expedited Motion to Quash or Limit Relator’s FRCP
45 Subpoena to St. Mark’s Hospital, (Doc. No. 458), and denies their alternative request for a
protective order limiting the scope of the St. Mark’s subpoena to patients identified in the Third
Amended Complaint.
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B. Relator’s Amended Expedited Motion to Compel Defendants to Produce Responsive
Medical Records (Doc. No. 459)
In his Amended Expedited Motion to Compel Defendants to Produce Responsive
Medical Records, (Doc No. 459), the Relator asks the court to compel production of “responsive
SCG medical records pertaining to patients undergoing PFO/ASD closures billed to federal
insurance programs.” (Medical Records Mot. 1–2, Doc. No. 459.) The Relator initially
requested these records on July 5, 2019 in Request for Production No. 26 (“RFP No. 26”), which
sought “all document[s], data compilations, and tangible things” the Sorensen Defendants
identified in their Rule 26(a)(1)(A)(ii) initial disclosures that are in the possession, custody, or
control of the Sorensen Defendants and may be used to support their claims or defenses. (See
Medical Records Mot. 2, Doc. No. 459; see also Ex. B to Medical Records Mot., Defs. Sherman
Sorensen and SCG’s Resps. to Relator’s First Reqs. for Produc. 31, Doc. No. 459-2.) RFP No.
26 referenced the Sorensen Defendants’ initial disclosures, which included: “SCG medical
records pertaining to PFO/ASD closures performed by Dr. Sorensen on federally insured patients
and related tests, imaging studies, and other procedures attendant to those PFO/ASD closures.”
(See Ex. A to Medical Records Mot., Defs. Sherman Sorensen’s and SCG’s Suppl. Initial
Disclosures 4, Doc. No. 459-1.)
The Sorensen Defendants initially produced nothing in response to RFP No. 26, saying it
was “vague, ambiguous, and overbroad,” and that they did not understand the request. (Ex. B to
Medical Records Mot., Defs. Sherman Sorensen and SCG’s Resp. to Relator’s First Req. for
Prod. 31, Doc. No. 459-2; see also Medical Records Mot. 3, Doc. No. 459.) However, they later
produced twenty-five responsive medical records—documents their experts reviewed during the
first phase of expert discovery. (Medical Records Mot. 3, Doc. No. 459.) After an additional
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attempt by the Relator to clarify RFP No. 26, 5 the Sorensen Defendants responded that they had
produced all “documents in their possession” and that “additional records are in the possession of
the Heart Center.” (Ex. G. to Medical Records Mot., Letter from V. Wilde to G. Brown (Apr.
23, 2020), Doc. No. 459-7.)
In his motion, the Relator contends the Sorensen Defendants have “control of their own
medical records stored by the Heart Center,” and should have produced responsive documents
months ago. (Medical Records Mot. 3–4, Doc. No. 459.) Accordingly, the Relator seeks the
documents, as well as fees associated with moving to compel their production. (Id.)
In response to the Relator’s motion, the Sorensen Defendants explain that the patient files
sought are not in their physical possession because all patient files were transferred to the Heart
Center when Dr. Sorensen retired. (Opp’n to Medical Records Mot. 2, Doc. No. 464.) The
Sorensen Defendants also argue the Relator’s request for these records lacks proportionality
because the production of the records would cost $43,000 to $55,000. (Id. at 2.) The Sorensen
Defendants argue the Relator should bear the cost of obtaining these files. (Id. at 3.)
5
In an attempt to clarify his initial request, the Relator served an Amended Request for
Production No. 26 which excerpts the Sorensen Defendants’ initial disclosures and indicates that
the Relator seeks “all responsive SCG patient medical records for patients who had a PFO or
ASD closure procedure performed by Dr. Sorensen that was billed to a federal insurance
program . . . from 2002-2011 as identified in the Sorensen Defendants[’] Rule 26 Disclosures.”
(See Ex. F to Medical Records Mot., Relator Gerald Polukoff M.D.’s Am. Request for Prod. No.
26 to Defs. Sherman Sorensen, M.D., and SCG 8, Doc. No. 459-6; see also Medical Records
Mot. 3, Doc. No. 459.) The Sorensen Defendants objected to the form of the request, treating the
request as a meet-and-confer attempt because an amended request for production is not allowable
under the Federal Rules of Civil Procedure. (Ex. G. to Medical Records Mot., Letter from V.
Wilde to G. Brown (Apr. 23, 2020), Doc. No. 459-7.)
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Additionally, they argue the Relator has the ability to obtain the information from other sources.
(Id. at 2–3.)
Rule 34(a)(1) of the Federal Rules of Civil Procedure provides that a party may request
designated documents in the “responding party’s possession, custody, or control,” provided the
request meets the relevancy and proportionality requirements of Rule 26(b). Fed. R. Civ. P.
34(a)(1). “Courts will find documents to be within a party’s control if the party has actual
possession, custody, control, or the legal right to obtain the documents on demand.” Braun v.
Medtronic Sofamor Danek, Inc., No. 2:10-cv-1283-RJS-DBP, 2013 U.S. Dist. LEXIS 875, at
*31 (D. Utah Jan. 2, 2013) (unpublished) (internal quotations omitted). If a party has “the
practical ability to obtain the documents, particularly when the opposing party does not have the
same practical ability to do so,” courts will also find the documents are within a party’s control.
Id. (internal quotations omitted); see also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d
130, 138 (2d Cir. 2007) (noting that “if a party has access and the practical ability to possess
documents not available to the party seeking them, production may be required”); Ice Corp. v.
Hamilton Sundstrand Corp., 245 F.R.D. 513, 516–17 (D. Kan. 2007) (“Courts have universally
held that documents are deemed to be within the possession, custody or control if the party has
actual possession, custody or control or has the legal right to obtain the document on demand.”
(internal quotations omitted) (emphasis in original)).
The Sorensen Defendants rely on Afros S.P.A. v. Krauss-Maffei Corp., 113 F.R.D. 127
(D. Del. 1986) in support of their argument that they lack control over records housed at the
Heart Center. (See Opp’n to Medical Records Mot. 3, Doc. No. 464.) The key question in Afros
was whether a party could compel a subsidiary to produce documents in the possession of its
non-party parent corporation. Id. at 129. In this context, the court found the “nature of the
relationship between the party . . . and the non-party with possession of the documents” to be
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determinative and analyzed the corporate structure. Id. at 130 (internal quotations omitted).
This analysis is inapplicable here, as is the factual circumstance in Afros regarding control
between a subsidiary and parent corporation.
The evidence before the court suggests the Sorensen Defendants have “possession,
custody, or control” of SCG patient files housed at the Heart Center. See Fed. R. Civ. P.
34(a)(1). Control of the records is indicated by the fact that the Sorensen Defendants’ counsel
has already accessed at least twenty-five SCG patient files housed at the Heart Center and
provided these records to experts in this case. (See Ex. H to Medical Records Mot., 11/22/19
Dep. of John Lassetter, M.D. at 80:12–21, Doc. No. 459-8; see also Ex. K to Medical Records
Mot., Letter from Eric Schoonvid (May 18, 2020), Doc. No. 459-11 (attaching email
correspondence in which counsel for the Heart Center affirms the existence of an agreement
under which “Dr. Sorensen would have access to the records should he request them” and states
that, pursuant to the agreement, “Dr. Sorensen’s counsel has accessed, reviewed, and scanned
some of the records”).) The Sorensen Defendants’ control over the records is also established by
counsel’s acknowledgement in an email to the Relator’s counsel that while “Dr. Sorensen’s
medical files . . . are in the custody of St. Mark’s Hospital . . . [a]ccess to them, certainly for us,
is not the problem.” (Ex. J to Medical Records Mot., Email from R. Nolen to R. Torres (May 22,
2019, 12:05 p.m.), Doc. No. 459-10.) Finally, the record suggests the Sorensen Defendants have
a “legal right to obtain the documents on demand,” because of Dr. Sorensen’s contractual
relationship with the Heart Center. See Braun, 2013 U.S. Dist. LEXIS 875, at *31. In a letter to
the Relator’s counsel, the Heart Center’s counsel referred to a December 20, 2011 agreement
between Dr. Sorensen and the Heart Center, giving Dr. Sorensen access to SCG patient records
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“should he request them.” 6 (See Ex. K to Medical Records Mot., Letter from Eric Schoonvid
(May 18, 2020), Doc. No. 459-11.)
The patient files at issue are relevant to both parties’ claims and defenses, as shown by
the Sorensen Defendants’ reference to the documents in their initial disclosures. (See Ex. A to
Medical Records Mot., Defs. Sherman Sorensen’s and SCG’s Suppl. Initial Disclosures 4, Doc.
No. 459-1.) Given this, the Sorensen Defendants must produce the requested documents, absent
a showing of a lack of proportionality. See Landry, L.L.C., 323 F.R.D. at 380 (indicating that
while Rule 26(b) does not state which party must show proportionality, in general, the “party
resisting discovery has the burden of showing undue burden or expense”). The Sorensen
Defendants argue it would be prohibitively expensive to produce the files. They also suggest,
with respect to the proportionality factor regarding relative access to the relevant information,
that the Relator could have obtained the same records from the Heart Center. (See Opp’n to
Medical Records Mot. 2, Doc. No. 464 (stating that the “Heart Center has been the custodian of
the patient files since 2012” and that the Relator “never requested the files from St. Marks” until
his subpoena at the end of discovery). This position is not well-founded, given their attempts to
block the Relator from subpoenaing these same documents from the Heart Center.
The Sorensen Defendants do not analyze the proposed cost in relation to the other
proportionality factors such as the “amount in controversy,” “the parties’ resources,” or “the
importance of the discovery to the underlying issues.” See Fed. R. Civ. P. 26(b)(1). As such, the
court finds the Sorensen Defendants have not shown the production of SCG medical files
pertaining to patients undergoing PFO/ASD closures billed to the federal government to be
6
Among other things, the Relator seeks a copy of this agreement in its subpoena to the Heart
Center. (See Ex. A to Opp’n to Mot. to Quash, Subpoena, Doc. No. 462-1.)
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disproportional to the needs of the case. To the extent the Sorensen Defendants are concerned
about costs, the court directs them to meet and confer with the Relator to discuss the issue of
cost-sharing. It became clear at the June 23 hearing that no offer or request to divide the
production costs had been made. (See Tr. of Mot. Hearing at 28:9-19, 33:15–22, Doc. No. 515.)
The court orders the Sorensen Defendants to supplement their response to Request for
Production No. 26 by producing all responsive documents, including SCG medical records
pertaining to PFO/ASD closures performed by Dr. Sorensen on federally insured patients and
related tests, imaging studies, and other procedures attendant to those PFO/ASD closures from
2002 to 2011 within thirty (30) days of the date of this order. The court orders the parties to
meet and confer to discuss the possibility of sharing costs tied to the production of these
documents. Finally, the court denies the Relator’s request for fees associated with bringing this
motion, finding that while the Sorensen Defendants’ objections to the requested production did
not ultimately prevail, they were substantially justified. See Fed. R. Civ. P. 37(a)(5)(A)(ii).
C. Relator’s Expedited Motion to Compel Defendant Sherman Sorensen, M.D. to
Produce Complete and Responsive Interrogatory Answers (Doc. No. 474)
The Relator’s Expedited Motion to Compel Defendant Sherman Sorensen, M.D. to
Produce Complete and Responsive Interrogatory Answers, (Doc. No. 474), asks the court to
compel Dr. Sorensen to provide complete responses to Interrogatories 21, 22, 23, and 24. (Dr.
Sorensen Interrog. Mot., Doc. No. 474.) Broadly speaking, Interrogatories 21 and 22 deal with
the number of PFO/ASD closures performed and billed to the government, and Interrogatories 23
and 24 deal with Dr. Sorensen’s reimbursement from the government for the same procedures.
Specifically, Interrogatories 21 and 22 requested that “[f]rom 2002-2011,” Dr. Sorensen
provide “the exact total number of transcatheter PFO closure procedures [he] performed on
patients that were billed in whole or in part” to the Centers for Medicare and Medicaid Services
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(CMS) and TRICARE/CHAMPUS. The interrogatories indicated that if Dr. Sorensen cannot
provide “an exact number,” he should provide an estimate. (See Ex. A to Dr. Sorensen Interrog.
Mot., Def. Sherman Sorensen’s Resp. to Relator’s Second Set of Interrogs. 2–3, Doc. No. 4741.) Dr. Sorensen objected to both interrogatories as unduly burdensome and overbroad, claiming
it would require “individual review of each patient record” because PFO closures and ASD
closures use the same billing code. (Id. at 2–3.) Dr. Sorensen also objected that the request is
vague and insufficiently defines “PFO closures.” (Id.) Finally, he argued the Relator has equal
access to this information since the Relator has a hard drive of “patient and billing data as
evidenced by the body of the complaint.” (Id.) Subject to the interposed objections, Dr.
Sorensen estimated that he “performed a few hundred procedures” between 2002 and 2011 and
that some portion of those were billed in full or in part to CMS and TRICARE/CHAMPUS. (Id.)
Interrogatories 23 and 24 requested that “from 2002-2011,” Dr. Sorensen provide “the
total exact amount of monetary reimbursement [he] and/or any medical practice [] received from
transcatheter PFO closure procedures [he] performed on patients that were billed in whole or in
part” to CMS or to TRICARE/CHAMPUS. The requests asked Mr. Sorensen to provide an
estimate if he proved unable to provide an exact number. (See Ex. A to Dr. Sorensen Interrog.
Mot., Def. Sherman Sorensen’s Resp. to Relator’s Second Set of Interrogs. 3–4, Doc. No. 4741.) Dr. Sorensen objected to Interrogatories 23 and 24 as unduly burdensome because a response
would require “individual review of each patient record,” given that PFO closures and ASD
closures use the same billing code. (Ex. A to Dr. Sorensen Interrog. Mot., Def. Sherman
Sorensen’s Resp. to Relator’s Second Set of Interrogs. 4–5, Doc. 474-1.) He also argued the
requests were vague and insufficiently defined “PFO closures.” (Id.) Specifically, with regard
to Interrogatory No. 23, Dr. Sorensen claimed the request was burdensome, given that the
Relator has equal access to this information since he has a hard drive of “patient and billing data
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as evidenced by the body of the complaint.” (Id. at 4.) Substantively, Dr. Sorensen disclaimed
the ability to provide even an estimate of the monetary reimbursement he received for
transcatheter PFO closure procedures from CMS or TRICARE/CHAMPUS, since he did not
participate in the billing process. (Id. at 4–5.)
In his motion, the Relator argues that because Dr. Sorensen has access to the patient
records stored at the Heart Center as well as patient procedure spreadsheets produced by
Intermountain Medical Center, he needs to review these records and provide more robust
responses. (Dr. Sorensen Interrog. Mot. 2–3, Doc. No. 474.) The Relator also contends that Dr.
Sorensen has made comparably exacting interrogatory requests of the Relator and should be held
to the same standard. (Id. at 3.)
Dr. Sorensen responds that he was not “responsible for billing or maintaining patient
records” during his practice and cannot attest to “information he is unfamiliar with.” (Dr.
Sherman Sorensen’s Resp. to Relator’s Expedited Mot. to Compel Def. Sorensen to Provide
Complete and Responsive Interrog. Answers 2, Doc. No. 490.) He also maintains that he cannot
distinguish between a PFO closure and all other closures from the records he possesses because
all closures used the same billing code. (Id. at 2.) At the hearing, counsel for Dr. Sorensen
clarified that the only billing records Dr. Sorensen can access are those on the hard drive
produced by the Relator. (Tr. of Mot. Hearing 9:13–17, Doc. No. 515.) Since SCG has closed
its doors, neither Dr. Sorensen nor his former employees have access to billing records. (Id.) Dr.
Sorensen also insists that compelling information on the exact number of PFO closures as
compared to ASD closures would have little utility at this juncture where the distinction between
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ASD and PFO closures requires expert analysis. (Tr. of Mot. Hearing at 49:19–51:3, Doc. No.
515.)
Rule 33 of the Federal Rules of Civil Procedure allows for interrogatories asking for a
“contention that relates to fact,” as the Relator’s interrogatories do here. Fed. R. Civ. P. 33(a)(2).
However, while contention interrogatories are generally allowable, a respondent’s objection to
them may be sustained if they require a “laborious, time-consuming analysis,” the burden of
which “outweighs the benefit to be gained,” particularly if other discovery vehicles better
address the underlying needs identified in the interrogatories. IBP, Inc. v. Mercantile Bank, 179
F.R.D. 316, 321 (D. Kan. 1998).
In this case, requiring Dr. Sorensen to respond further to Interrogatories 21, 22, 23, and
24, would require a time-consuming analysis outweighing any benefit gained. The Relator seeks
exacting responses from Dr. Sorensen which he is unable to provide with the records currently in
his physical possession. With regard to Interrogatories 21 and 22, once the Relator receives the
medical records that must be produced under this order, the Relator will have independent access
to the records showing the total number of PFO closures performed. Put differently, the court’s
order will provide a vehicle better addressing the needs identified in the interrogatory: the
records themselves. With regard to Interrogatories 23 and 24, Dr. Sorensen explained he has no
access to billing records and no knowledge about the particulars of patient billing, both
prerequisites to providing a more specific response. The exhibits cited by the Relator support
Dr. Sorensen’s position. While the record suggests the Heart Center possesses SCG patient
records, it also suggests the Heart Center is not in possession of billing records. (See Ex. B to
Dr. Sorensen Interrog. Mot., Letter from E. Schoonvid to G. Brown (May 18, 2020), Doc. No.
474-2 (indicating that the Heart Center has “possession of certain SCG medical records” but has
“no knowledge of who was billed for those services and do[es] not know a feasible way to make
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such a determination,” and further indicating that the Heart Center is not “in possession of any
such billing records”). Dr. Sorensen did not just refuse to answer these interrogatories—he
provided estimates where possible.
For these reasons, the court denies the Relator’s Expedited Motion to Compel Defendant
Sherman Sorensen, M.D. to Produce Complete and Responsive Interrogatory Answers (Doc. No.
474).
D. Relator’s Expedited Motion to Compel Defendant Sorensen Cardiovascular Group
to Provide Complete and Responsive Interrogatory Answers (Doc. No. 476)
The Relator’s Expedited Motion to Compel Defendant Sorensen Cardiovascular Group to
Provide Complete and Responsive Interrogatory Answers (Doc. No. 476) seeks to compel
additional responses to Interrogatories 6, 7, 8, and 9 from SCG.
Interrogatories 6 and 7 requested “the exact total amount of monetary reimbursement”
that SCG received from PFO closure procedures from 2006 to 2011 billed to
TRICARE/CHAMPUS and CMS or, alternatively, SCG’s best estimate. (See Ex. A to SCG
Interrog. Mot., Def. Sorensen Cardiovascular Group’s Resp. to Relator’s First Set of Interrogs.
5–8, Doc. No. 476-1.) SCG objected to these requests as unduly burdensome because they
require review of each patient record and seek information equally available to both sides. (Id. at
6–7.) SCG also argued the requests are vague and ambiguous because they do not sufficiently
define PFO closures to distinguish them from other septal defect closures. (Id.) After
interposing these objections, SCG responded that “the exact total amount of monetary
reimbursement” received for PFO closures was unknown, as was the exact amount billed to the
federal government. (Id. at 6–8.) SCG also answered that it “was not reimbursed the full
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amount billed” for closures but received “an estimated amount of reimbursement per closure [of]
approximately $900” during the time period of 2006 to 2011. (Id. at 6–7.)
Interrogatories 8 and 9 requested “the exact total number of transcatheter PFO closure
procedures” billed by SCG to CMS and TRICARE/CHAMPUS between 2006 and 2011 or,
alternatively, SCG’s best estimate. (Id. at 8–9.) SCG objected that the interrogatories are unduly
burdensome and vague and ambiguous. (Id. at 9–10.) After interposing these objections, SCG
responded similarly to both interrogatories, indicating it did not know the exact number of PFO
closures billed to CMS or TRICARE/CHAMPUS but it “estimated that Sorensen Cardiovascular
Group performed between 220 to 250 transcatheter PFO/ASD closure procedures per year during
2006 to 2011.” (See Ex. A to SCG Interrog. Mot., Def. Sorensen Cardiovascular Group’s Resp.
to Relator’s First Set of Interrogs. 8–10, Doc. No. 476-1.)
In his motion, the Relator argues SCG’s answers are deficient because it has “access and
control over its medical records, billing information, and a copy of the hard drive.” (SCG
Interrog. Mot. 2, Doc. No. 476.) Accordingly, the Relator claims SCG has an obligation to
review these records and respond substantively. (Id.) The Relator also argues that the Sorensen
Defendants have made comparably exacting requests of the Relator and that “the rules governing
discovery” should “apply equally to both sides.” (Id. at 3.)
In response, SCG maintains that its good faith estimates adequately answer the
interrogatories, given the state of the available billing records. (Sorensen Cardiovascular
Group’s Resp. to Relator’s Expedited Mot. to Compel Def. Sorensen Cardiovascular Group to
Provide Complete and Responsive Interrog. Answers (“Opp’n to SCG Interrog. Mot.”) 2, Doc.
No. 489.) SCG also contends that the Relator’s requests “do not inform SCG on what to do with
the various abnormalities a cardiologist finds during a closure procedure when the closure is
neither an ASD or PFO” and improperly attempts to bucket “complex medical procedures into
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one of two categories.” (Id.) SCG argues it is not holding the Relator to a double standard by
requesting comparably exacting interrogatory responses because the Relator has the burden of
proof. (Id. at 2–3.)
The court finds the Relator’s requests unduly burdensome. With regard to Interrogatories
6 and 7, the court agrees SCG cannot feasibly categorize “complex medical procedures” into one
of two buckets—either ASD or PFO closures—when part of the Sorensen Defendants’ defense is
that the underlying medical decisions were not so clear cut and the government allows billing for
both procedures. (Opp’n to SCG Interrog. Mot. 2, Doc. No. 489.) With regard to Interrogatories
8 and 9, SCG provided good-faith estimates, an alternative allowed by the interrogatories
themselves. This is sufficient where billing records were no longer accessible to SCG once the
medical practice closed. (See Tr. of Mot. Hearing at 53:8-9, Doc. No. 515 (“[W]hen they closed
the practice, that was the end of all of their billing records.”).) In addition to the good faith
estimates provided by SCG, some of the information sought from SCG may be available in the
patient records ordered here. (See Tr. of Mot. Hearing at 46:22-47:2, Doc. No. 515 (indicating
that the patient records disclosed during the first phase of expert discovery often included federal
payee information).) Federal payment records subpoenaed by the Relator may also provide the
information the Relator seeks in his interrogatories to SCG. (See, e.g., Ex A to Order Granting
Relator’s Unopposed Mot. Requesting Issuance of Subpoenas to CMS and Utah Medicaid,
Subpoena, Doc. No. 475-1.)
For these reasons, the court denies the Relator’s Expedited Motion to Compel Defendant
Sorensen Cardiovascular Group to Provide Complete and Responsive Interrogatory Answers
(Doc. No. 476).
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E. Sorensen Defendants’ Expedited Motion to Compel Compliance with the Court’s
Order (Doc. No. 448) and Request for Sanctions and Fees. (Doc. No. 477)
In their Expedited Motion to Compel Compliance with the Court’s Order and Request for
Sanctions and Fees (Doc. No. 477), the Sorensen Defendants move the court to compel the
Relator to provide the specificity required by the court in its April 8, 2020 order (Doc. No. 448),
specifically with respect to his responses to Interrogatories 6 and 10. (Sorensen Defs.’ Mot. to
Compel 2, Doc. No. 477.) Additionally, the Sorensen Defendants request an award of fees
related to this motion.
Interrogatory 6 states: “Identify each PFO and ASD closure – including patient name,
patient date of birth, patient SCG account number, and date of procedure – for which you claim
Dr. Sorensen created or made any of the false record(s), document(s), or statement(s) referenced
or identified in Interrogatory No 5.” (Ex. 1 to Sorensen Defs.’ Mot. to Compel, Relator’s Third
Am. Resps. to Some of the Sorensen Defs.’ First Set of Interrogs. 3, Doc. No. 477-1.)
Interrogatory No. 10 provides: “State the reasons why each PFO/ASD closure, echocardiogram,
or other procedure or test that is listed, identified, or referenced in paragraphs 143 and 144 of the
Amended Complaint was allegedly medically unnecessary. Include each individual procedure in
your response, including, without limitation, each procedure identified by procedure code.” 7
(Ex. 1 to Sorensen Defs.’ Mot. to Compel, Relator’s Third Am. Resps. to Some of the Sorensen
Defs.’ First Set of Interrogs. 30, Doc. No. 477-2.)
In response to an earlier motion to compel related to these interrogatories filed by the
Sorensen Defendants (Doc. No. 434), the court ordered the Relator to provide: (1) a “list of all
7
Paragraph 143 of the Amended Complaint is a “listing of those medically unnecessary PFO
closures and the related procedures” billed to the federal government. (Am. Compl. ¶ 143, Doc.
No. 90.) Paragraph 144 contains a “small sample of closure procedures performed by Dr.
Sorensen” that did not conform to medical necessity guidelines. (Id. ¶ 144.)
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patients receiving a PFO/ASD closure, whose file the Relator claims contains a false record,
document, or statement” and (2) “the reasons each procedure referenced in paragraphs 124 and
125 of the Third Amended Complaint was medically unnecessary.” 8 (See Order Granting
Sorensen Defs.’ Expedited Mot. to Compel and Request for Attorney Fees (“April Order”) 1–2,
Doc. No. 448.) The court permitted the Relator to identify the basis for his allegation that the
procedures were medically unnecessary “by category” but ordered that he “identify the reasons,
patient by patient.” (Id. at 3.) The court ordered compliance with respect to the 339 patients the
parties agreed received PFO/ASD closures, but also ordered the Relator to update his responses
within thirty days of learning of “additional PFO/ASD closures.” (Id. at 1–2.)
In response to the court’s order, the Relator provided a spreadsheet with columns for each
procedure, account number, patient date of birth, procedure code, date of service, location of
service, billed amount, paid amount, availability of the underlying medical records, and the
reason the Relator views the procedure as unnecessary. (See Ex. 2 to Sorensen Mot.,
Spreadsheet Excerpt, Doc. No. 477-3.) The spreadsheet “adds over 500 new patients beyond
those listed in the Third Amended Complaint.” (Sorensen Mot. 2, Doc. No. 477.) Where the
Relator had the underlying medical records for a patient, he also listed a categorical reason the
PTO closure was improper (i.e., “No Neuro Diagnosed Stroke/TIA of Any Kind,” “No Neuro
Consult,” “PFO Listed as an ASD”). (See Ex. 2 to Sorensen Defs.’ Mot. to Compel, Spreadsheet
Excerpt, Doc. No. 477-3.) For each patient, the Relator included a column indicating whether an
unnecessary procedure occurred before closure, concurrent with the closure, or after closure.
8
Paragraph 124 of the Third Amended Complaint includes a “listing of some of those medically
unnecessary PFO closures and related procedures that were billed to Medicare, Medicaid, or
TRICARE by Sorensen . . . along with patient account numbers, dates of service, procedure
codes and the amounts billed to the federal payer.” (Third Am. Compl. ¶ 124, Doc. No. 421.)
Paragraph 125 contains a more detailed description of seven patients for whom the Relator
alleges that Dr. Sorensen did medically unnecessary closures. (Id. ¶ 125.)
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(Id.) In addition, the Relator provided a generalized statement for each patient indicating the
PFO closures were: (1) investigational and experimental; (2) not established as safe and
effective; and (3) had not been “demonstrated to be at least as beneficial as alternative existing
forms of treatment.” (See Ex. 3 to Sorensen Defs.’ Mot. to Compel, Statement, Doc. No. 477-4.)
Some columns in the spreadsheet were incomplete because the Relator possesses limited medical
records. (Relator’s Resp. in Opp’n to Defs.’ Expedited Mot. to Compel Compliance with the
Court’s Order and Request for Sanctions and Fees (“Opp’n to Sorensen Defs.’ Mot. to Compel”)
2, Doc. No. 488.)
The Sorensen Defendants seek more. They assert that the Relator’s statement regarding
medical necessity does not “support [his] false claims allegations wherein [he] allege[d]
Defendants falsified records and/or performed medically unnecessary procedures for each
patient.” (Sorensen Defs.’ Mot. to Compel 2, Doc. No. 477 (internal quotations omitted).) At
the June 23 hearing, the Sorensen Defendants argued the Relator was required, as part of
supplementation ordered by the court, to “go patient by patient in that third amended
complaint[,] . . . tell us who they were, and tell us which record was falsified.” (Tr. of Mot.
Hearing at 58:11–15, Doc. No. 515.) When asked where in Interrogatories 6 or 10 this
information was sought, the Sorensen Defendants argued Interrogatory 6 incorporates
Interrogatory 5, which asked the Relator to identify false records, documents, or statements. (Id.
at 78:10–23.) The Sorensen Defendants also complain that the Relator’s supplemental response
includes patients who had no closure performed even though the Relator has acknowledged that
his case focuses on patients who received PFO/ASD closures. (Sorensen Defs.’ Mot. to Compel
2, Doc. No. 477; Tr. of Mot. Hearing at 68:24–69:3, Doc. No. 515.) Accordingly, the Sorensen
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Defendants seek, in the alternative, an order limiting the “Relator to the patients in the [Third
Amended Complaint] with closures.” (Sorensen Defs.’ Mot. to Compel 3, Doc. No. 477.)
In response, the Relator asserts that the Sorensen Defendants failed to identify the
deficiency in his disclosures. (Opp’n to Sorensen Defs.’ Mot. to Compel 1, Doc. No. 488.) The
Relator contends that because “the same flaws are present in nearly every closure procedure,” the
general statement regarding medical necessity for every patient in the spreadsheet was
appropriate. (Id. at 2.) Any gaps in the spreadsheet, according to the Relator, are due to the
Sorensen Defendants’ failure to disclose medical records for a significant number of patients
upon whom Dr. Sorensen performed closures. (Id.) The Relator’s response to Interrogatory No.
10 clarifies that the non-closure procedures listed on the spreadsheet “were done either in
advance of, concurrently with, or after the [medically unnecessary] closures.” (Ex. 1 to Sorensen
Defs.’ Mot. to Compel, Relator’s Third Am. Resp. to Some of the Sorensen Defs. First Set of
Interrogs. 31, Doc. No. 477-2.) Finally, the Relator argued at the June 23 hearing that
Interrogatory 5 was neither the subject of the Sorensen Motion, nor was it addressed during the
meet-and-confer process. (See Tr. of Mot. Hearing at 79:23–80:6, Doc. No. 515.)
Having reviewed the Relator’s supplemental responses to Interrogatories 6 and 10 and
excerpts of the spreadsheet produced, the court denies the Sorensen Defendants’ Motion to
Compel (Doc. No. 477). Consistent with the court’s April 8, 2020 order, the supplemental
responses outline by category the reason each patient’s closure was medically unnecessary in
each instance where the Relator has the underlying medical record. (See Ex. 2 to Sorensen
Defs.’ Mot. to Compel, Spreadsheet Excerpt, Doc. No. 477-3.) Although gaps exist in the
Relator’s responses to date, the disclosures appear to be made in good faith based on the
information currently in his possession. Generalized statements regarding medical necessity are
allowable under the court’s April 8, 2020 order. (See April Order 3, Doc. No. 448.) The extent
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to which this level of generality is either factually incorrect or legally inadequate is an issue for
summary judgment or trial, rather than a discovery determination. The Relator has a continuing
obligation to supplement his interrogatory responses, consistent with the court’s April 8, 2020
order, and is expected to provide that supplementation upon obtaining and reviewing additional
medical records from the Sorensen Defendants or third parties. If the Relator fails to do so, the
Sorensen Defendants may, of course, file another motion to compel.
To the extent the Sorensen Defendants seek greater specificity with respect to alleged
false records, documents, or statements made by the Sorensen Defendants in response to
Interrogatory No. 5, as raised at the June 23 hearing, this request is denied. It is not squarely
before the court. Interrogatory 5 is not included in the exhibits or materials submitted for the
court’s consideration and it was not raised in the parties’ briefing. (Ex. 1 to Sorensen Defs.’
Mot. to Compel, Relator’s Third Am. Resps. to Some of the Sorensen Defs.’ First Set of
Interrogs., Doc. No. 477-1 & 477-2.) The court’s April 8, 2020 order addresses the Relator’s
compliance with Interrogatories 6, 8, and 10, not Interrogatory 5. (See April Order, Doc. No.
448.)
For these reasons, the court denies the Sorensen Defendants’ Expedited Motion to
Compel Compliance with the Court’s Order and Request for Sanctions and Fees, (Doc. No. 477).
Likewise, the court denies the Sorensen Defendant’s alternative request to limit the Relator’s
discovery to patients with closures listed in the Third Amended Complaint, given the court’s
order allowing the Relator to amend his complaint as well as the potential relevance of records
not individually listed in the pleadings. The court finds the Relator’s explanation as to why nonclosure procedures are listed to be sufficient. Because the court denies the Sorensen Defendants’
motion, it also denies their request for fees. The court declines to award the Relator his fees in
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opposing the motion, finding that the Sorensen Defendants were substantially justified in
bringing their motion. See Fed. R. Civ. P. 37(a)(5)(B).
F. Relator’s Emergency Motion Filed Under Seal for Leave to Supplement (Doc. No.
505)
The court next considers the Relator’s Emergency Motion Filed Under Seal for Leave to
Supplement (Doc. No. 505). The Relator filed this motion on the eve of the court’s June 23
hearing. With his motion, the Relator seeks to add as an exhibit to all his pending motions and
responses the testimony of Patricia Phillips, the former billing manager at SCG and its 30(b)(6)
designee. (Mot. to Suppl. 3, Doc. No. 505.) While he makes no argument in his motion, the
Relator highlights transcript excerpts purporting to show Ms. Phillips was ill-prepared for the
deposition. (Id. at 3–5.) The Sorensen Defendants opposed the motion at the hearing, arguing it
failed to conform to the short form discovery requirements of Local Rule DUCivR 37-1. (Tr. of
Mot. Hearing 8:8–13, Doc. No. 515.) The Sorensen Defendants also argued that the Relator
misrepresented the 30(b)(6) deposition because it included additional designees besides Ms.
Phillips. (Id. at 8:14–21.) Due to this, they argued, the deposition excerpt provides an
incomplete picture to the court. (Id. at 9:18–25.)
Given the late filing of the Motion to Supplement and the Sorensen Defendants’ inability
to provide a more substantive reply, the court denies the motion (Doc. No. 505) without
prejudice. To the extent the Relator believes SCG’s 30(b)(6) designees were inadequately
prepared and their responses were insufficient, he may meet and confer with the Sorensen
Defendants on this topic and move to compel if necessary.
G. Relator’s Motion to Modify the Court’s Prior Order Granting an Extension of
Expert Deadlines (Doc. No. 519)
Finally, after the court’s June 23, 2020 hearing on these matters, the Relator filed a
Motion to Modify the Court’s Prior Order Granting an Extension of Expert Deadlines (“Expert
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Deadline Mot.”) (Doc. No. 519). With his motion, the Relator seeks an extension of time to
designate experts and serve expert reports from September 5, 2020 to October 16, 2020, or
“alternatively, another date that the [c]ourt finds fair and appropriate.” (Id. at 4; see also Order
Granting Relator’s Mot. for Extension of Deadlines for Expert Discovery, Doc. No. 514.) As
justification for the requested extension, the Relator cites the motions pending and resolved in
this order. (Expert Deadline Mot. 2, Doc. No. 519.) Specifically, the Relator argues that an
extension of time for designating and submitting expert reports is necessary so that he can
“provide his experts additional medical records.” (Id. at 3.) The Sorensen Defendants oppose
the extension, stating that the Relator’s motion does not comply with DUCivR 37-1 and that the
Relator has not utilized the time already granted by the court for additional expert discovery.
(Defs.’ Opp’n to Relator’s Mot. to Modify the Court’s Prior Order Granting an Extension of
Expert Deadlines 2, Doc. No. 521.)
Given the discovery ordered here, the court agrees that additional time is necessary for
expert discovery, including designation of experts and preparation of expert reports.
Consequently, the court GRANTS the Relator’s Expert Deadline Motion and ORDERS the
parties to submit either a stipulated proposed schedule or, if the parties are unable to agree,
separate proposed schedules within fourteen (14) days of the date of this order. The proposed
schedule(s) should extend the deadline for the party bearing the burden of proof to provide
expert disclosures and reports to at least October 16, 2020 or another workable date given the
discovery ordered here.
CONCLUSION
For the reasons set forth above, the court (1) GRANTS the Relator’s Motion for Leave to
Amend Relator’s Third Amended Complaint for Damages and Other Relief Under the False
Claims Act (31 U.S.C. § 3730) (Doc. No. 460); (2) DENIES the Sorensen Defendants’
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Expedited Motion to Quash or Limit Relator’s FRCP 45 Subpoena to St. Mark’s Hospital (Doc.
No. 458); (3) GRANTS the Relator’s Amended Expedited Motion to Compel Defendants to
Produce Responsive Medical Records (Doc. No. 459); (4) DENIES the Relator’s Expedited
Motion to Compel Defendant Sherman Sorensen, M.D. to Provide Complete and Responsive
Interrogatory Answers (Doc. No. 474); (5) DENIES the Relator’s Expedited Motion to Compel
Defendant Sorensen Cardiovascular Group to Provide Complete and Responsive Interrogatory
Answers (Doc. No. 476); (6) DENIES the Sorensen Defendants’ Expedited Motion to Compel
Compliance with the Court’s Order and Request for Sanctions and Fees (Doc. No. 477); (7)
DENIES the Relator’s Emergency Motion Filed Under Seal for Leave to Supplement (Doc. No.
505); and (8) GRANTS Relator’s Motion to Modify the Court’s Prior Order Granting an
Extension of Expert Deadlines (Doc. No. 519).
The court ORDERS (1) the Relator to file his Fourth Amended Complaint (Doc. No. 4601) within seven (7) days of this order; and (2) the Sorensen Defendants to supplement their
responses to Relator’s Request for Production No. 26, as outlined above, within thirty (30) days
of the date of this order. Finally, to account for the additional discovery ordered here, the parties
are ORDERED to file either a stipulated proposed schedule or, if the parties are unable to agree,
separate proposed schedules within fourteen (14) days of the date of this order. The proposed
schedule(s) should extend the deadline for the party bearing the burden of proof to provide
expert disclosures and reports to at least October 16, 2020 or another workable date.
DATED this 20th day of August, 2020.
BY THE COURT:
_____________________________________
Daphne A. Oberg
United States Magistrate Judge
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