Livingston v. Digirad Corp.
Livingston v. Digirad Corp.
2022 WL 2762713 (N.D. Ala. 2022)
April 7, 2022
Maze, Corey L., United States District Judge
Summary
The court denied Digirad's motion for summary judgment, denied the third parties' motion to quash the subpoenas, and granted in part and denied in part the Relator's motion to compel Digirad to produce documents and responses to the Relator's first set of discovery requests. The court also limited Digirad's production burden to documents related to Lister Healthcare, Shoals Kidney & Hypertension Center, and Athens Primary Care. The court extended the discovery deadline to May 6, 2022.
HAL LIVINGSTON, Plaintiff,
v.
DIGIRAD CORP., et al., Defendants
v.
DIGIRAD CORP., et al., Defendants
Case No. 2:18-cv-2058-CLM
United States District Court, N.D. Alabama, Southern Division
Filed April 07, 2022
Counsel
Benjamin Patterson Bucy, Pro Hac Vice, Frohsin Barger & Walthall, Saint Simons Island, GA, Elise May Frohsin, Froshin, Barger & Walthall, Birmingham, AL, J. Elliott Walthall, Frohsin, Barger & Walthall, Brevard, NC, James F. Barger, Jr., Frohsin & Barger LLC, St. Simons Island, GA, Jessica Machelle Haynes, Beasley Allen Law Firm, Mobile, AL, Larry A. Golston, Jr., Lauren Elizabeth Miles, Leon Hampton, Jr., Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, for Plaintiff.Jonathan Michael Hooks, Richard E. Smith, Christian & Small LLP, Birmingham, AL, Kevin D. Bradberry, Stephen Derek Bauer, Pro Hac Vice, Baker & Hostetler, LLP, Atlanta, GA, Michael W. Mengis, Pro Hac Vice, Bakerhostetler LLP, Houston, TX, for Defendant Digirad Corporation.
Benjamin B. Coulter, Burr & Forman LLP, Birmingham, AL, for Defendant N. Rao Boorgu M.D.
Maze, Corey L., United States District Judge
ORDER
*1 The court held a telephone conference with the parties on April 7, 2022. Consistent with the discussion during that call, the court rules on the outstanding motions as follows:
• The court DENIES as premature Digirad's motion for summary judgment. (Doc. 93.) Digirad may re-raise the public disclosure issue, along with any other arguments, in its upcoming motion for summary judgment.
• The court DENIES the third parties' motion to quash the subpoenas. (Doc. 96). As for document production, Shoals Kidney & Hypertension Center and Athens Primary Care—and/or persons related to those facilities—must produce these categories of documents by April 22, 2022:
A. Any billing slips provided by Digirad Corporation to you, your employee(s), agents, and/or physician practice group for services provided by you and/or your physician practice group.
B. Any billings and/or claims for reimbursement submitted to Medicare for the supervision of the technical component of Myocardial Perfusion Imaging procedures performed by Digirad, its agents, and/or employees.
C. Any billings and/or claims for reimbursement submitted to Medicare for the supervision of Cardiac Stress Tests performed by Digirad, its agents, and/or employees.
Subject to the discovery deadline, Relator may also seek deposition testimony from these facilities and persons related to these facilities.
• The court GRANTS in part and DENIES in part the Relator's motion to compel Digirad to produce documents and responses to the Relator's first set of discovery requests if the requested documents relate to the two Alabama practices. (Doc. 100.) The parties were to discuss remaining production issues (if any) after the court's teleconference. If any documents remain outstanding, those documents must be produced by April 22, 2022.
• The court GRANTS in part and DENIES in part the Relator's motion to amend pretrial discovery deadlines. The court extends the discovery deadline to May 6, 2022.
• The court DENIES as moot Digirad's motion for a protective order. (Doc. 106.)
• The court GRANTS Digirad's motion to extend its deadline to file expert reports. (Doc. 110.) Digirad must file its expert reports by April 15, 2022.
• All other deadlines not mentioned in this order remain the same.
DISCUSSION
As discussed during the call, the court limits Digirad's production burden to documents related to Lister Healthcare, Shoals Kidney & Hypertension Center, and Athens Primary Care. The court imposes this limit for two primary reasons.
First, Relator's Amended Complaint pleads facts only about these practices, see (doc. 43 ¶¶ 72–126), and the counts focus on these practices. For example, Count 1 alleges that Digirad caused Shoals Kidney and Athens Primary to present false claims in violation of 31 U.S.C. § 3729(a)(1)(A):
128. By and through the fraudulent schemes described herein, Digirad knowingly—by actual knowledge or in deliberate ignorance or with reckless disregard of the truth or falsity of the information—caused to be presented false or fraudulent claims to the United States for payment or approval, to wit: Defendant Digirad instructed, encouraged and provided assistance to Referring Physicians, including Shoals Kidney and Hypertension Center and Athens Primary Care to submit false claims for payment on CMS Form 1500 for the technical component of MPI exams billed under code 78452-TC that Defendant knew the Referring Physicians were not qualified to provide or supervise and did not actually provide or supervise.
*2 129. Submission of such false claims also caused the Referring Physicians', including Shoals Kidney and Hypertension Center and Athens Primary Care, certifications on CMS Form 855I to be false.
130. The United States was unaware of the falsity or fraudulent nature of the claims described herein and paid claims it would not have paid but for Digirad's fraud.
131. Digirad's fraudulent actions described herein have resulted in damage to the United States equal to the amount paid or reimbursed to Digirad's Referring Physicians by the United States through Medicare and Medicaid for such false or fraudulent claims.
Doc. 43 ¶¶ 128-31. Relator cannot prove a False Claim Act violation without proving that a False Claim was presented. And Relator pleads only two practices that presented a false claim: Shoals Kidney and Athens Primary. So the court finds that discovery should be limited to these practices, plus the practice Relator worked for (Lister Healthcare).
Second, it's too late to expand discovery to all practices Digirad services nationwide. The court set the April 4, 2022 discovery deadline back on September 13, 2021. Relator sent his first set of discovery requests on December 20, 2021. Digirad responded to that request on January 28, 2022. On March 17, 2022, Relator sent a letter to Digirad explaining perceived deficiencies in Digirad's response. On March 23, 2022—just two weeks before the deadline—Relator moved to compel (doc. 100), asking the court to require Digirad to produce documents related to all medical practices throughout the country where Digirad provided diagnostic nuclear imaging services—not just Shoals and Athens. The court isn't placing blame on either party. But having sat through multiple discovery conferences in the past few weeks, it's clear that expanding the scope of discovery to all practices nationwide, just as discovery is set to close, would set this 3-year-old case back much further. As the court has told the parties many times, it will not move the September 2022 trial date.
_____
Discovery will close on May 6, 2022. The court expects Relator, Digirad and the third parties to work cooperatively on complying with this order and the court's verbal instructions so that no more discovery-related motions need to be filed between now and then.
DONE and ORDERED on April 7, 2022.