U.S. ex rel. El-Amin v. George Washington Univ.

• Decision Date: 20 November 2007
• Docket Number: Civil Action No. 95-2000 (CKK).
• Citation: 522 F.Supp.2d 135
• Parties: UNITED STATES of America ex rel. Sheila EL-AMIN, et al., Plaintiffs/Relators, v. The GEORGE WASHINGTON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Columbia

522 F.Supp.2d 135

UNITED STATES of America ex rel. Sheila EL-AMIN, et al., Plaintiffs/Relators, v. The GEORGE WASHINGTON UNIVERSITY, Defendant.

Civil Action No. 95-2000 (CKK).

United States District Court, District of Columbia.

November 20, 2007.

COPYRIGHT MATERIAL OMITTED

Alan M. Grayson, Victor Aronoff Kubli, Grayson, Kubli & Hoffman, P.C., McLean, VA, for Plaintiffs/Relators.

Thomas B. Smith, Office of the General Counsel, The George Washington. University, Jonathan Lee Diesenhaus, William David Nussbaum, Hogan & Hartson, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

This matter is before the Court on Defendant's Motion For Partial Summary Judgment [639] and Relators' Opposition and Cross-Motion For Summary Judgment [648].¹ Defendant moves for partial summary judgment, with respect to the first and second claims in Relators' Third Amended Complaint, "dismissing all allegations that GW presented `false claims' to the government, and used `false records' to get `false claims' paid by the government, other than with respect to any Medicare claims ... for which [R]elators possess Medicare claim forms." Def.'s Mot. Part. S.J. at 1. Conceding that they are not in possession of a Medicare claim form for every claim that is in issue, Relators nonetheless assert that they "have compiled tens of thousands of pages of direct evidence that the Defendant billed Medicare," Rels. Opp'n at 2, and that this documentary evidence — twenty two boxes in total, which Relators filed with the Court — is an adequate substitute for the actual Medicare claim forms, id. at 16-18. Relators therefore seek a "ruling that Medicare was the payor for all of the anesthesia procedures in issue." Id. at 1. For the reasons stated below, the motions for summary. judgment shall be denied.

I: PROCEDURAL HISTORY

The parties have been engaged in a protracted period of discovery that has lasted a decade; a snippet of this history is relevant here. On August 2, 2006, Defendant filed a motion to compel, in which it sought an order compelling:

[R]elators to produce any and all Medicare claim records, including without limitation all "Form 1500s," in relators' possession, custody or control, relating to any requests for reimbursement for providing anesthesia services to Medicare patients by the 15 GW physicians identified in the Third Amended Complaint during the period October 1989 through October 1995.

GW's Mot. to Compel at 1. After noting Relators had conceded the documents were in fact discoverable, the Court ordered Relators to "produce to GW copies of all Medicare claim records in their possession, including but not limited to all Form 1500s." United States ex rel. El-Amin v. George Washington Univ., No. 95-2000 (D.D. C. Nov. 22, 2006) (order granting motion to compel).

In accordance with the Court's order, Relators produced all of the HCFA 1500 claim forms in their possession on December 8, 2006. The entirety of this production according to the Defendant, amounted to "223 claim forms for anesthesia services during the relevant time period, 50 of which identify one of the 15 GW anesthesiologists [listed in the Third Amended Complaint] as the physician providing the indicated services." Def.'s Mot. Part. S.J. at 2. Both sides recognize that George Washington University submitted more than 223 Medicare claims for anesthesia services during this six year period. Defendant filed the instant motion for summary judgment on January 12, 2007, seeking to limit the scope of Relators' case to the fifty HCFA 1500 claim forms in their possession.

II: DISCUSSION

Defendant claims that "summary judgment should be granted on all claims other than those for which [R]elators possess [Medicare] claim forms." Def.'s Mot. Part. S.J. at 18. Because "Medicare `claim forms are critical to [R]elators' claims," id. at 3, and are needed to show that it actually presented a false claim to the government, id. at 12, Defendant concludes that Relators "cannot meet their burden of proof [at trial]" without them, id. at 20-21. Medicare claim forms "are fundamental to any case brought under the False Claims Act," Defendant reasons, because they "identify and describe the claims actually submitted to the government, and are the only way to determine conclusively the services for which a defendant sought payment, who provided those services, when payment was sought, whether any certifications were included with that request, and how much [George Washington University] asked to be paid." Id. at 11-12. Indeed, Medicare, claim forms are "so paramount," Defendant cautions, "that courts [in other jurisdictions] have refused to permit plaintiffs to proceed past the pleading stage without them." Id. at 13. Without these forms, there is "`no proof of an actual claim, [and, as a result,] there is no issue of material fact to be decided by the jury.'" Id. at 19 (citing United States ex rel. Quinn v. Omnicare Inc., 382 F.3d 432, 439-40 (3d Cir.2004)). Finally, in preemptive fashion, Defendant rejects "any evidence [R]elators might try to offer in order to prove the existence, contents, presentment and falsity of individual claims — other than the Form 1500s themselves," because such evidence would be "barred at trial under the best evidence rule." Id. at 26 (citing Fed.R.Evid. 1002). Relators must, Defendant argues, "offer in evidence the original (or, potentially, a copy) of the form or forms alleged to be false." Id. at 27.

In their opposition and cross-motion for summary judgment, Relators reject the argument that HCFA 1500 claim forms are the sole method by which they can establish a violation of the FCA. Relators claim that "[t]here is an abundance of detailed evidence that Defendant billed Medicare," including "tens of thousands of pages of direct evidence that the Defendant billed Medicare for every one of the anesthesia procedures in issue."² Rels. Opp'n. at 1-2. Relators maintain that Defendant has "deliberately confuse[d] the element to be proved, i.e., the billing of Medicare, with the evidence relevant to proving that element." Id. at 20. They assert that nothing should prevent them from presenting a variety of evidence, including circumstantial evidence, demonstrating that Defendant submitted claims to Medicare. While Relators admit that HCFA 1500 claim forms are certainly "evidence that [Defendant] billed. Medicare," they also point out that "under [Federal Rule of Evidence] 402, `all relevant evidence is admissible,'" which would include the "tens of thousands of pages of billing documents in their possession. Id. at 19. The best evidence rule is not applicable here, they assert, because "the fact to be proved [at trial] ... is the submission of the claim to the Government," not the contents of the claim. Id. at 21. Finally, Relators note that "for much of the period in issue, the Defendant did not bill Medicare using HCFA 1500 claim forms, but rather billed [Medicare] electronically." Id. at 19.

I. Legal Standards

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. "Put another way, a party is entitled to summary judgment only if no reasonable jury could return a verdict for the non-moving party." Bettis v. Odebrecht Contrs. of Cal., Inc., 364 U.S.App. D.C. 250, 254-55, 393 F.3d 1321, 1325-26 (D.C.Cir.2005) (citing Hall v. Giant Food, Inc., 336 U.S.App. D.C. 63, 66, 175 F.3d 1074, 1077 (D.C.Cir.1999)). "In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party." Morley v. United States CIA, 453 F.Supp.2d 137, 143 (D.D.C.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)). "[T]he determination of whether a given factual dispute, requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. "If there is insufficient evidence indicating that a jury could return a favorable verdict for the nonmoving party, then summary judgment is proper." Morley, 453 F.Supp.2d at 144 (citing Nat'l Geographic Soc. v. Int'l Media Assoc., Inc., 732 F.Supp. 4, 4 (D.D.C. 1990) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510)). When considering a motion for summary judgment, the Court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000) (citations omitted). "`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Id. at 150-151, 120 S.Ct. 2097 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. at 2513).

II. False Claims Act

The parties' cross-motions for summary judgment raise a question of proof. That is, what evidence (or proof) must Relators adduce at trial to demonstrate that Defendant submitted a false claim to the government, in violation of the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq. Defendant claims that the HCFA 1500 claim form³ is the sole piece of evidence that can adequately demonstrate that it submitted a false claim to Medicare. Nothing less will do; anything other than an HCFA 1500 claim form is, according to Defendant, both inadequate under the False Claims Act and the cases interpreting it, and barred by the best evidence rule, see Fed.R.Evid. 1002. Relators, on the other hand, argue that they have collected a mountain of relevant, detailed evidence that establishes that the Defendant billed Medicare for far more than the fifty ...