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United States ex rel. Feaster v. Dopps Chiropractic Clinic, LLC

United States District Court, D. Kansas

April 25, 2018

UNITED STATES ex rel MARCUS FEASTER, AND MARCUS FEASTER, Individually Plaintiff,
v.
DOPPS CHIROPRATIC CLINIC, LLC AND JOHN DOPPS, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Marcus Feaster (“Relator”), on behalf of himself and the United States, brings this lawsuit against Defendants Dopps Chiropractic Clinic, LLC (“Dopps, LLC”) and Dr. John Dopps. There are two claims remaining in the case: (1) an alleged violation under the Civil False Claims Act, 31 U.S.C. § 3729, et seq. (the “False Claims Act” or “FCA”), and (2) retaliation under the FCA, § 1981, Title VII, and the Kansas Act Against Discrimination (“KAAD”). Defendant Dopps, LLC now brings a Motion for Rule 37 Sanctions for Relator's Failure to Comply with the Scheduling Order and Rule 26 (Doc. 119).[1] For the reasons described below, the Court grants in part and denies in part the motion.

         I. Factual and Procedural Background

         In this case, Relator contends that Defendants committed Medicare fraud (his FCA claim) and retaliated against him by constructively discharging him. Defendants and Relator went through several rounds of briefing as to whether Relator adequately alleged the FCA claim with specificity. In Relator's Third Amended Complaint, [2] he attached an exhibit list identifying 109 patients (by initials), dates of office visits, and categories of schemes applicable to those patients. Counsel for Defendants asked Relator's counsel to provide the names of the patients on different occasions.

         A Scheduling Order was entered in this case on September 6, 2016. The Order required the exchange of initial disclosures consistent with Rule 26(a)(1) by September 16, 2016. It also provided that supplemental disclosures must be served 40 days before the deadline for the completion of all discovery. The Scheduling Order stated that the supplemental disclosures must identify all witnesses and exhibits that probably or might be used at trial and that anything not included in the final disclosures, and not previously appearing, would be subject to exclusion pursuant to Fed.R.Civ.P. 37(c)(1).

         Deadlines in the Scheduling Order included: (1) all fact discovery commenced or served in time to be completed by April 14, 2017, (2) all discovery in the case commenced or served in time to be completed by June 14, 2017, and (3) an expert disclosure deadline for Relator by May 5, 2017. Relator served his initial Rule 26(a) disclosures on September 16, 2016.[3] He supplemented his responses several times over the next couple of months. With regard to Relator's answers to Defendants' requests for production, Relator generally stated that he did not possess documents relating to the FCA claim as those documents were maintained by Defendants or other third parties. Relator also stated that he was not withholding any documents evidencing his claims and that he only intended to introduce documents obtained during discovery. Relator did not request any extension of discovery deadlines.

         On July 6, 2017, Relator provided Defendants' counsel with his original contentions for the Final Pretrial Order. The next day, Defendants' counsel objected to the vague and conclusory nature of the contentions that Relator intended to include. They requested that Relator identify the details of the Medicare claims allegedly presented to the government for payment or the false record or statement for each alleged false claim. The Court held a conference with the parties on July 14, 2017, and the Court allowed Relator until July 31, 2017, to revise his contentions to address Defendants' counsel's concern.

         On July 31, 2017, Relator's counsel provided his revised contentions. He included a spreadsheet (or table) with 157 pages of patient data for 164 patients, identified by name, and information categorized as claim charges, service dates, CPT codes, service line charges, and dates submitted to Medicare. When counsel for Dr. Dopps inquired on August 4, 2017, where the 157 pages of patient data came from, Relator's counsel stated that the information was aggregated from documents produced by Dr. Dopps[4] and Infinedi, LLC (“Infinedi”)[5] in response to Relator's subpoena.

         On September 13, 2017, Relator's counsel sent Defendants' counsel an email containing a link with access to the Infinedi records. Until September 13, Relator's counsel never provided Dopps, LLC with any documents or information that Relator received from Infinedi, whether in supplementation to his responses to the requests for production, in supplemental Rule 26 disclosures, or in an exhibit list. On September 14, counsel for Dopps, LLC sent an email back to Relator questioning the Infinedi link and whether Relator intended to use the records he had just sent. Relator's counsel never responded to this email.

         Approximately one month later, on October 20, 2017, Defendant Dopps, LLC filed this Motion for Sanctions. Defendant contends that Relator has not provided any patient records or Medicare claim documents and has not identified, in an exhibit list, disclosure, or supplemental disclosure such documents that he intends to use as exhibits at trial. Defendant requests that the Court sanction Relator by precluding him (1) from using any documents in pleadings, hearings or at trial which were not previously identified or produced by him prior to the close of discovery, (2) from calling any witnesses at trial who were not identified in his initial disclosures or witness lists, and (3) from attempting to present any expert opinion testimony. Defendant also requests attorney's fees for making this motion.

         II. Analysis

         Defendant seeks to prohibit Relator from presenting evidence in three different categories: (1) documents, (2) witnesses, and (3) expert testimony. The Court will first address Defendant's second and third request. Defendant argues that Relator should be precluded from calling any witnesses not previously identified in his disclosures and from presenting any expert opinion testimony. Relator affirmatively states that he does not intend to call any of the patients listed in the documents as witnesses. In addition, Relator affirmatively states that he does not intend to offer expert testimony. Thus, there is no need to enter a sanction precluding this evidence.[6]

         The main disagreement between the parties is Defendant's request to preclude Relator from using any documents in pleadings, hearings, or at trial which were not previously identified or disclosed by him prior to the close of discovery. Federal Rule of Civil Procedure 26(a)(1)(A)(ii) provides that a party must initially provide the other parties with a copy (or description) of all documents (electronic or otherwise) “that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses” unless the document would only be used for impeachment. Pursuant to Fed.R.Civ.P. 26(e)(1)(A), a party who has made a disclosure or responded to an interrogatory or request for production “must supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”

         Under Fed.R.Civ.P. 37(c), a party's failure to disclose or supplement an earlier response may warrant a sanction. Fed.R.Civ.P. 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In addition, Rule 37(b)(2)(A)(ii) states that if a party fails to obey an order to provide or permit discovery that the Court may prohibit the disobedient party “from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” It is within the Court's discretion to decide whether the party's violation is justified or harmless.[7] The Court does not have to make explicit findings on the justification or harmlessness, but it should be guided by four factors.[8] These factors include: “1) the prejudice or surprise to the party against whom the testimony ...


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