United States v. Marder

Decision Date23 September 2016
Docket NumberCase No. 1:13-cv-24503-KMM
Citation208 F.Supp.3d 1296
Parties UNITED STATES of America and the State of Florida, ex rel. Theodore A. Schiff, M.D., Plaintiffs, v. Gary L. MARDER, D.O., Allergy, Dermatology & Skin Cancer Center, Inc., a Florida Corporation, Robert I. Kendall, M.D., and Kendall Medical Laboratory, Inc., a Florida Corporation, Defendants.
CourtU.S. District Court — Southern District of Florida

John C. Spaccarotella, United States Attorney, Miami, FL, for Plaintiffs.

Mark Alan Lavine, United States Attorney's Office, Miami, FL, for the United States of America.

Magdalena Anna Ozarowski, Florida Office of the Attorney General, Tallahassee, FL, Rebecca Haggar Sirkle, Office of the Attorney General, Orlando, FL, for the State of Florida.

Lawrence Steven Klitzman, Lawrence Klitzman PA, Sunrise, FL, Daniel R. Miller, Berger & Montague, PC, Philadelphia, PA, Pro Hac Vice, for Theodore A. Schiff, M.D.

Jeffrey Henry Sloman, Ryan K. Stumphauzer, Stumphauzer & Sloman, PLLC, George Volsky, Jacqueline Marie Arango, Sandra Jessica Millor, Akerman LLP, for Gary L. Marder, D.O.

Jared Edward Dwyer, Eva Merian Spahn, Greenberg Traurig, P.A., Miami, FL, for Robert I. Kendall, M.D.

Bruce Reinhart, McDonald Hopkins, LLC, West Palm Beach, FL, for Megan Bock, P.A.



This is a qui tam action in which Theodore A. Schiff, M.D.—a double board certified dermatologist based in Palm Beach County, Florida—brought this action as Relator1 on behalf of the United States (the "Government") under the False Claims Act, ("FCA"), 31 U.S.C. §§ 3729 –3733. In the Complaint (ECF No. 1) filed December 13, 2013, Relator alleges that Defendants Gary L. Marder, D.O. ("Dr. Marder") and Allergy, Dermatology and Skin Cancer Center, Inc. ("ADSCC") (collectively, the "Marder Defendants") and Robert I. Kendall, M.D. ("Dr. Kendall") and Kendall Medical Laboratory, Inc. ("KML") (collectively, the "Kendall Defendants") violated the FCA by knowingly creating and submitting false claims to Medicare for reimbursement of dermatology and pathology services. On October 14, 2014, the Government notified the Court of its decision to intervene and filed its intervening complaint (ECF No. 30) on November 19, 2014.

This suit was shepherded to its current state over the fourteen months following the Government's intervention through these subsequent activities: (1) the parties' extensive, albeit troubled, discovery process;2 (2) the Court's denial of defendants' motions to dismiss (ECF No. 75); and (3) the Court's grant of the parties' joint motion for a continuance wherein the Court reset the trial date from the two-week trial period beginning January 25, 2016 to the two-week trial period commencing June 13, 2016. See (ECF No. 123). On July 8, 2016, the Court entered its aforementioned third omnibus order and sua sponte reset the trial date for the two-week trial period beginning October 31, 2016.

Now pending before the Court is the Government's Motion for Summary Judgment (ECF No. 146). Each set of defendants filed a Response (ECF Nos. 182, 204) and the Government replied (ECF No. 211). Thus, the motion initially came ripe for review on May 6, 2016. However, on June 16, 2016, the United States Supreme Court issued its unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar, ––– U.S. ––––, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016) where the Court held that "the implied false certification theory can be a basis for [FCA] liability."3 Escobar , 136 S.Ct. at 1995. As briefing on the Government's Motion for Summary Judgment was already complete, the Court ordered the parties to conduct supplemental briefing to discuss the effects of Escobar on the Government's summary judgment motion. (ECF No. 242) at 15–16.

I. Factual and Regulatory Background

The vast majority of facts set forth in this Order are taken exclusively from Plaintiff's Statement of Undisputed Material Facts in Support of Summary Judgment (ECF No. 147) as it comports with the Federal Rules of Civil Procedure and the Local Rules of this Court. Defendants also filed their Statements of Undisputed Material Facts opposing Summary Judgment (ECF Nos. 202, 204), which were rife with evidentiary objections and other deficiencies as explained more fully below.4

The Federal Rules of Civil Procedure expressly provide that a party opposing summary judgment may "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). However, only disputes over material facts—that is, "facts that might affect the outcome of the suit under the governing law"—can properly preclude the entry of summary judgment. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Where there is a dispute about a declaration or document that does "little more than provide cumulative evidence" on issues already established, summary judgment is not precluded. See e.g., The Offshore Drilling Co. v. Gulf Copper & Mfg. Corp. , 604 F.3d 221, 227 (5th Cir.2010) ("Only disputes over facts that might affect the outcome of the suit under the governing law will preclude summary judgment.").

The primary deficiency in Defendants' amended statements of material facts is the dearth of facts or citations to the record contained within these documents. That is, the sheer amount of conclusory denials, unsubstantiated assertions and legal argument presented obfuscates any statements of material fact that are likely contained within their pages. See Oliver v. Scott , 276 F.3d 736, 744 (5th Cir.2002) ("Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial."); Hilburn v. Murata Elects. N. Am., Inc. , 181 F.3d 1220, 1227–28 (11th Cir.1999) (noting that a "conclusory statement is insufficient to create a genuine issue of a material fact").

In fact, a close review of the Marder Defendants' amended statement of material facts reveals that of the 178 numbered paragraphs submitted in opposition to the Government's statement of material facts approximately ten contain record citations. See (ECF No. 202). Additionally, the separately listed material facts listed at the end of that statement of material facts only provide broad record citations to various exhibits, which forces the Court into the position of choosing between either outright ignoring these purported facts or delving even deeper into the record in an attempt to unearth a genuine issue involving a material fact.

Our circuit has made clear that Local Rule 56.1(b) serves a vital purpose in "help[ing] the court identify and organize the issues in the case." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir.2009). It indubitably preserves scarce judicial resources by preventing a court from "having to scour the record and perform time-intensive fact searching." Joseph v. Napolitano , 839 F.Supp.2d 1324, 1329 (S.D.Fla.2012) ; see also Alsina Ortiz v. Laboy , 400 F.3d 77, 81 (1st Cir.2005) ("Burying the district court in a mass of supposedly material contested facts, many irrelevant and many unsupported by citations, creates the very morass from which the rule aims to protect the district judge."). Given its import to the judicial process, the Eleventh Circuit holds the local rule governing summary judgment in "high esteem" much like its sister circuits.

Reese v. Herbert , 527 F.3d 1253, 1268 (11th Cir.2008) ; see also Caban Hernandez v. Philip Morris USA, Inc. , 486 F.3d 1, 7 (1st Cir.2007) ("Given the vital purpose that such rules serve, litigants ignore them at their peril.").

A party engaging in a pattern of practice that comports with a court's local rules governing summary judgment greatly improves—rather than impedes—that court's ability to efficiently and fairly resolve a motion for summary judgment in a timely manner. This is why Local Rule 56.1 mandates that a parties' Statement of Material Facts "(1) [n]ot exceed ten (10) pages in length; (2) [b]e supported by specific references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court; and (3) [c]onsist of separately numbered paragraphs." S.D. Fla. L.R. 56.1(a). Unfortunately, Defendants' non-compliance with Local Rule 56.1 has already been the subject of two of the Court's previous orders. See (ECF No. 196); see also (ECF No. 223) at 14 n.11 ("Whether the Court will afford yet another opportunity to the Marder Defendants to submit a coherent statement of material facts—given the onslaught of evidentiary objections contained in the one the Marder Defendants have currently submitted—will be resolved in a forthcoming order.").

That forthcoming order has arrived. To the extent either the Marder Defendants or the Kendall Defendants raised a genuine issue of material fact that precludes the entry of summary judgment, the Court will honor its commitment to draw all reasonable factual inferences in favor of Defendants as the non-moving parties at this stage of disposition. However, to the extent Defendants merely objected to the evidentiary basis for an otherwise undisputed fact, set forth unsubstantiated assertions, or other unsupported legal arguments, the Court deems those facts set forth by the Government as uncontroverted under the Federal Rules of Civil Procedure and the Local Rules of the Court. See S.D. Fla. L.R. 56.1(b).

The Court is essentially left with a "functional analog of an unopposed motion for summary judgment" given the fact that the individual defendants, Drs. Kendall and Marder, invoked the Fifth Amendment5 throughout the course of the Government's investigation. See Reese , 527 F.3d at 1268. Despite the virtually unopposed summary judgment motion, the Government as the moving party "continues to shoulder the initial burden of production in demonstrating the absence of any...

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