U.S. ex rel. Pogue v. Diabetes Treatment Centers

• Decision Date: 18 December 2002
• Docket Number: No. 01MS50(RCL).,No. 99CV3298.,99CV3298.,01MS50(RCL).
• Citation: 238 F.Supp.2d 270
• Parties: UNITED STATES of America ex rel. A. Scott POGUE, Plaintiff, v. DIABETES TREATMENT CENTERS OF AMERICA, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

238 F.Supp.2d 270

UNITED STATES of America ex rel. A. Scott POGUE, Plaintiff, v. DIABETES TREATMENT CENTERS OF AMERICA, INC., et al., Defendants.

No. 99CV3298.

No. 01MS50(RCL).

United States District Court, District of Columbia.

December 18, 2002.

COPYRIGHT MATERIAL OMITTED

James B. Helmer, Jr., Frederick M. Morgan, Jennifer M. Verkamp, Helmer, Martins & Morgan, Cincinnati, OH, Scott A. Powell, Don McKenna, Hare, Wynn, Newell & Newton, Birmingham, AL, for Relator.

Edward J. Shapiro, Julia M. MacLaren, Latham & Watkins, Washington, DC, for HCA.

Robert J. Walker, Kathryn L. Hays, Walker, Bryant, Tipps & Malone, Nashville, TX, Bryan E. Larson, Brian D. Roark, Bass, Berry & Sims PLC, Nashville, TN, for American Healthcorp.

Edward J. Shapiro, Julia M. MacLaren, Latham & Watkins, Washington, DC, Steven A. Riley, Amy J. Everhart, Bowen Riley Warnock & Jacobson, PLC, Nashville, TX, for West Paces.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before the Court on two motions to enforce subpoenas duces tecum served by the Relator on nonparties HCA— The Healthcare Company (HCA) and American Healthcorp, Inc. (AHC). Relator filed a motion to enforce the subpoena duces tecum against HCA [512], HCA filed a response in opposition [518], Relator replied [524], HCA then sought leave to file a surreply [542], which Relator opposed [579], while Defendant West Paces filed a memorandum in support [591]. Relator also filed a motion to enforce the subpoena duces tecum against AHC [516], AHC filed a response in opposition [522], Relator replied [529], AHC also then sought leave to file a surreply [604], which Relator opposed [615]. Some time later, HCA filed a Praecipe [705],¹ to which it attached the motion to quash the subpoena duces tecum it had filed in the Middle District of Tennessee. Relator filed a response [703] that attached his response in the Middle District of Tennessee, and HCA replied [706] with a copy of its reply in the Middle District of Tennessee.

Upon consideration of the case, the parties' motions and responses, and the law, the motions to compel [512][516] will be granted, subject to the scope limitations outlined in a separate opinion issued this day. The motions for leave to file surreplies [542][604] are denied.

I. Background

This case is part of the multi-district litigation of False Claims Act qui tam suits against HCA and various related entities. This suit involves allegations of illegal kickbacks to physicians in return for patient referrals to diabetes treatment centers, in violation of the Anti-Kickback and Stark laws. HCA and AHC, the entities to which this court order are directed, are not parties to this litigation. However, HCA owns Defendant West Paces Medical Center (West Paces) and AHC owns Defendant Diabetes Treatment Centers of America, Inc. (DTCA). Relator served HCA and AHC with subpoenas duces tecum, to which they responded with various objections, including to the scope of the subpoenas. HCA and AHC (as well as the named defendants in this case) contend that Relator's complaint alleges False Claims Act violations only in connection with a single hospital, West Paces; Relator urges that his complaint alleges a nationwide scheme. On the basis of their reading of the complaint, HCA and AHC object to producing documents relating to hospitals other than West Paces.

II. Discussion

A. Power of MDL Judge to Enforce Subpoenas Duces Tecum

Relator filed motions to compel against HCA and AHC when it became apparent that the disagreement on the scope of the complaint could not be resolved. HCA and AHC responded with substantially identical short responses urging that this Court has no jurisdiction to enforce a subpoena duces tecum issued by another District Court, under the terms of Civil Procedure Rule 45. Rule 45(e) provides that subpoenas are enforced by issuance of a judgment of "contempt of the court from which the subpoena issued." Rule 45(c)(3) protects nonparties from inconvenience by limiting issuance of a subpoena to a 100-mile radius of where the subpoenaed person resides or transacts business. The subpoenas duces tecum to HCA and AHC were issued in the Middle District of Tennessee, where both have corporate offices. HCA and AHC urge that Relator can seek enforcement only in the Middle District of Tennessee.

Were this an ordinary case, HCA and AHC would be correct and this case would be easily disposed of. This is not an ordinary case, however. This case came before the Court by order of the Judicial Panel on Multidistrict Litigation [1], which transferred to this Court related qui tam actions pending across the country under the authority of 28 U.S.C. § 1407, including this one. Section 1407 authorizes the MDL Panel to transfer civil actions involving one or more common questions of fact for coordinated pretrial proceedings. 28 U.S.C. § 1407(a). In enacting § 1407, Congress intended to provide centralized management of pretrial proceedings and to ensure their "just and efficient" conduct. In re New York City Municipal Securities Litig., 572 F.2d 49, 51 (2d Cir.1978) (quoting H.R.Rep. No.1130, 90th Cong., 2d Sess., reprinted in 2 U.S.Code Cong. & Admin.News, pp. 1898, 1899-1900 (1968)). To that end, § 1407 bestows upon the transferee court the power to "exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions" in MDL cases. 28 U.S.C. § 1407(b); see also MANUAL FOR COMPLEX LITIGATION (Third) § 21.424 (2002) (advocating centralized resolution of deposition and similar disputes by the MDL judge). In consolidating this litigation, the MDL Panel's order notes that "centralization under § 1407 is necessary to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary." Transfer Order [1] at 2.

It is not entirely a settled question whether an MDL court may enforce a subpoena duces tecum issued by another court under the grant of authority of § 1407 to act as a judge of the district from which the subpoena issued. However, the weight of authority and effectuation of the purposes of multi-district litigation support a finding of jurisdiction. Therefore, this Court finds that it has jurisdiction to entertain Relator's motions to compel compliance with his subpoenas duces tecum as a judge of the Middle District of Tennessee.

One of the leading cases examining the effect of § 1407's grant of power to MDL judges is In re Corrugated Container Antitrust Litigation, 662 F.2d 875 (D.C.Cir. 1981) (Corrugated Container DC). There, District Judge Singleton of the Southern District of Texas, the jurisdiction in which the MDL was proceeding, expressly invoked his authority to act as a judge of the District of the District of Columbia and issued a contempt citation to a witness being deposed in the District of Columbia. Corrugated Container DC, 662 F.2d at 879. The D.C. Circuit took jurisdiction of the appeal, finding that "the District of Columbia Circuit has jurisdiction because the contempt order was issued pursuant to the exercise by Judge Singleton of the powers of a district judge in the District of Columbia rather than in his capacity as a sitting judge in the Southern District of Texas where the multidistrict litigation is now based." Id. It determined that § 1407 confers on MDL judges the power to supervise depositions taking place in other jurisdictions. The court reasoned,

The deposition proceedings remain anchored in the courts of the districts where they are being conducted, but because of the obvious policy reasons for allowing a single judge to preside over the disparate activity in a multidistrict case, . . . the multidistrict judge is granted the same powers as a judge of those courts where the depositions are being taken.

Id. at 880-81. Other circuits hearing appeals from contempt judgments of the MDL judge acting as a judge of districts situated within their circuits agreed. See In re Corrugated Container Antitrust Litig., 644 F.2d 70 (2d Cir.1981); In re Corrugated Container Antitrust Litig., 647 F.2d 460 (5th Cir.1981); In re Corrugated Container Antitrust Litig., 655 F.2d 748 (7th Cir.1981). Other courts have also read § 1407 to permit an MDL judge to enforce subpoenas and adjudicate deposition disputes in other districts.² See, e.g., In re Factor VIII or IX Concentrate Blood Prods. Litig., 174 F.R.D. 412 (N.D.Ill. 1997); In re Sunrise Sec. Litig., 130 F.R.D. 560 (E.D.Pa.1989); In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30 (D.P.R.1987).

The grant of authority in § 1407 has been extended to the enforcement of subpoena duces tecum. The language of § 1407 allows a judge to act as another district judge "for the purpose of conducting pretrial depositions." A subpoena duces tecum is an order to appear at a specific place on a specific date with certain documents. A deposition is also an order to appear. A subpoena duces tecum can be issued as an incident to a deposition. In this case, however, the subpoena duces tecum was not issued pursuant to a deposition notice. In its pretrial order, the Court limited the number of depositions to twenty per side, despite Relator's request for forty depositions. Relator understandably did not want to waste his allotted depositions by noticing depositions to accompany these subpoenas duces tecum for the sole purpose of invoking the Court's jurisdiction to enforce under § 1407. The laws and rules governing federal courts strive to minimize elaborate formality and needless procedure. See, e.g., FED. R. CIV. P. 8(e)(1) ("Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required."). To effectuate those goals and to avoid placing on parties and nonparties from whom documents are sought the burden of holding a pro forma deposition in order to come under the aegis of § 1407, see FED. R. CIV. P. 45(c)(2)(A) (a...