TAFEF Files Amicus Curiae in Aseracare Case

The TAF Education Fund has filed an amicus brief in the Aseracare case (aka USA ex rel. Paradies, et al., v GGNSC Administrative Services, et al.). This brief was written by Amy Easton, Colette Matzzie, and Claire Sylvia of Phillips & Cohen, along with TAFEF Attorney Jacklyn DeMar, and it challenges some of the odd rulings made in this case by the district court trial judge.

To review:

  • The judge bifurcated this False Claim Act case — the first time that has been done in 150 years of the Act.

  • Despite the fact that the presentation of both the facts and the scheme were somewhat hamstrung, the jury came back with a verdict that said 104 of 121 claims submitted were fraudulent.

  • The judge then threw out the verdict based on her own, alleged, procedural error.

  • Finally, before there could be a retrial, the judge decided to dismiss the case on her own, and after the fact, citing a quote from Pascal, a dead French mathematician, as authority. The judge’s rational: that when two experts differed in opinion, then no claim can be deemed false based on opinion alone. It should be noted that DoJ and the whistleblower had, of course, submitted much more than opinion!

Needless to say, the U.S. Department of Justice is appealing all three of the judge’s rulings in this case.

In our amicus brief, the TAF Education Fund argues that:

“The federal rules of procedure and evidence adequately control the consideration of… information in FCA cases, just as they do in other cases. There is no basis to impose non-statutory limits on the FCA simply because adjudication of the falsity of claims may require juries to assess the testimony of experts about the exercise of professional judgments.”

We go on to note that it is established law that “If a health care provider knowingly presents, or causes to be presented, a claim for services that are not eligible for payment, the provider has violated the FCA.”

TAFEF’s amicus notes that in the recent unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar, the Supreme Court held that “the FCA is understood to incorporate common law definitions of fraud, except to the extent the statute departs from those definitions, as it does, for example, in defining ‘knowingly’ to include reckless disregard.”

Finally, the TAFEF amicus notes that “Every Circuit Court of Appeals to have considered the question of whether an opinion or exercise of judgement may form the basis for FCA liability, has answered affirmatively.”

We go on to note,

“Moreover, although the district court… stated that falsity could not be determined solely on the basis of conflicting expert testimony, FCA cases are not typically brought based only on expert testimony (and this case was no exception). A range of evidence is typically presented to prove whether the claim was not reimbursable or was ‘false.’ By the extraordinary step of bifurcating the liability phase of the trial, the district court also truncated the evidence of a fraudulent scheme that might ordinarily be considered, although notwithstanding that, the jury found claims to be false for 104 of the patients.”

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