BARRY S. SELTZER, District Judge.
This is a qui tam action brought by Arthur E. Desrosiers, III, M.D. ("Plaintiff" or "Relator" or "Desrosiers") on behalf of the United States and the State of Florida, alleging that Defendants violated the federal False Claims Act, 31 U.S.C. § 3729, and its state law equivalent, Fla. Stat. § 68.082. Defendants are Seth R. Thaller, M.D., and the University of Miami (collectively "Defendants" and individually "Dr. Thaller" and "UM"). Plaintiff alleges that Defendants committed fraud against the United States and the State of Florida by submitting false claims to Medicare and other federally and state-funded health care programs for unnecessary, upcoded, or improperly coded medical procedures performed on hundreds of patients, resulting in payments for services that were not performed or were not medically necessary [DE 31].
Both the United States and the State of Florida declined to intervene in the action [DE 32] [DE 38]; Plaintiff continues to pursue the fraud claims in the name of both the United States and the State of Florida pursuant to 31 U.S.C. § 3730(b)(1) and Fla. Stat. § 68.084(3). Plaintiff's Second Amended Complaint [DE 31] seeks civil penalties, treble damages, costs, and a percentage of any amounts recovered on behalf of the United States and the State of Florida. Defendants have filed an Answer and Affirmative Defenses to the Second Amended Complaint [DE 94], and this matter has been set for trial on February 6, 2017 [DE 168].
Plaintiff has disclosed two expert witnesses to testify on his behalf: Jean Acevedo and Jaime Flores, M.D. [DE 201-2]. Acevedo is expected to testify as an expert in medical coding and would offer "her opinion that Dr. Thaller showed a pattern of knowing[ly] overcoding in the submission of claims to the federal healthcare programs" [DE 201-2]. Dr. Flores is expected to testify as a medical expert and would offer his opinions as to the quality of training provided by Dr. Thaller to resident physicians at the University of Miami, the coding of claims by Dr. Thaller, as well as to the nature and quality of surgeries performed and billed by Dr. Thaller.
Defendants have moved to strike Acevedo's and Dr. Flores' testimony and reports for failing to meet the criteria of Rule 702 of the Federal Rules of Evidence and/or the standard for admissibility of expert testimony set forth in
The testimony of expert witnesses is governed by Rule 702, Federal Rules of Evidence:
Fed. R. Evid. 702. The Supreme Court has stated that "the inquiry envisioned by Rule 702 is a flexible one" in which "[m]any factors will bear on the inquiry, and [there is no] definitive checklist or test."
The Eleventh Circuit has set forth a "rigorous three-part inquiry" for determining the admissibility of expert testimony under Rule 702:
The first factor, qualification, is established as set forth in Rule 702: "by knowledge, skill, experience, training, or education."
Thus, the second factor that the courts must consider is reliability. Courts must consider the particular circumstances of each case in determining whether proffered expert testimony is reliable.
In
The third factor, helpfulness, is satisfied where the subject matter of the proposed testimony "concerns matters that are beyond the understanding of the average lay person."
Plaintiff has designated Jean Acevedo as a medical coding expert. She is a Certified Professional Coder, national lecturer, and adjunct faculty member at Florida Atlantic University [DE 209-1]. Acevedo has been qualified as an expert witness on coding in numerous state and federal court actions and has served as a lecturer, workshop leader, and author on coding issues for the American Academy of Professional Coders ("AAPC") [DE 209-1][DE 209-4]. Defendants do not contest Acevedo's qualifications as a coder, although they do argue that certain of her opinions are outside the area of her expertise.
According to her expert report, Acevedo reviewed 121 patient cases and found the following:
[DE 201-1]. Acevedo concluded that "Dr. Thaller showed a pattern of knowing over coding in the submission of claims to federal health programs" [DE 201-1].
During her deposition, Acevedo acknowledged that her coding error rate was based on the number of patient encounters, rather than the total number of codes entered by Dr. Thaller [DE 201-3]. Thereafter, Acevedo prepared an affidavit [DE 209-4] in which she explained that the 57 wrongly coded services out of 224 codes entered resulted in a 24.45% error rate, not a 47% error rate.
Defendants move to strike Jean Acevedo as an expert witness and to strike her expert report [DE 201]. Defendants contend that Acevedo's opinion about the medical necessity of surgical procedures performed by Thaller is (a) outside the scope of the pleadings, (b) outside Acevedo's area of expertise, and (c) devoid of factual or analytical support. Defendants also argue that the errors in the methodology Acevedo used to calculate the alleged coding error rate render her opinions (d) unreliable and, therefore, inadmissible.
Plaintiff responds that Defendants misconstrue Acevedo's opinion and testimony. Acevedo testified that her opinion regarding medical necessity was rendered from a coding standpoint, from the payer's perspective, rather than from a medical perspective [DE 209-2, p. 125]. In her affidavit, Acevedo explained:
Thus, the conclusion rendered by Acevedo that certain procedures were "not medically necessary" related to the type of codes applied to the procedures performed, not to the clinical diagnosis made by Dr. Thaller. A Florida state court considered, and rejected, a similar argument offered in support of excluding a coding expert:
In response, Plaintiff argues that Acevedo has applied the "payer's criteria to determine whether or not the services described [in Dr. Thaller's operative reports] are covered" [DE 209, p.6]. Acevedo testified in deposition that the surgeon's operative report typically states the medical indications for the surgery, although she acknowledged that Medicare sometimes requests additional information to support a claim [DE 209-2, pp. 122-124]. Acevedo has prepared a spreadsheet and narrative for each patient chart that she opines contained improper coding or upcoding. Her report includes "what she reviewed, her findings and the resources used to make her determinations" [DE 209, p.7]. Plaintiff argues that Defendants will have ample opportunity to subject Acevedo's conclusions to cross examination and/or competing testimony.
To evaluate the reliability of expert opinion, courts must
In this matter, Acevedo's opinions are based upon sufficient facts and analytical support to meet the threshold of reliability. Her analysis of the medical codes submitted for reimbursement is documented, as is the information that she used to make her analysis. Her conclusions are capable of being tested, replicated or challenged on cross examination. Accordingly, the Court finds that Acevedo's opinions are based upon adequate factual and analytical support and, therefore, concludes that those opinions are reliable.
Defendants' final challenge to Acevedo's expert testimony is her admitted mistake in calculating the coding error rate. Acevedo's report contained the opinion that Dr. Thaller's billing revealed a coding error rate of 47% for surgical services [DE 201-1]. During her deposition and in her subsequent affidavit, Acevedo acknowledged that she "inadvertently computed the error rate based on the total number of cases versus the total number of CPT codes reported" [DE 209-4]. Acevedo revised her calculations using the total number of CPT codes reported and concluded that "57 wrongly coded services out of 224 codes resulted in a 24.45% error rate," which she opined was nevertheless unreasonable for an experienced surgeon such as Dr. Thaller [DE 209-4].
Defendants argue that the error in Acevedo's calculations renders her opinions inadmissible under
In sum, having concluded that Acevedo's expert testimony is reliable, the Court will deny Defendants' Motion to Strike Jean Acevedo as an Expert Witness and to Strike Her Expert Report [DE 201].
Defendants have also filed a Motion to Strike Jaime Flores as an Expert Witness and to Strike His Expert Report [DE 200]. Jaime Flores is a medical doctor who was, for a brief period of time, employed by the University of Miami as the Chief of Plastic Surgery for the University of Miami Hospital [DE 200, n.1]. Plaintiff has retained Dr. Flores as an expert witness who is expected to offer opinion testimony as to the quality of the coding and the medical procedures performed by Dr. Thaller, as well as to his training of resident physicians at the University of Miami School of Medicine. Defendants' counsel, however, represented (at oral argument) that he is
In his report, Dr. Flores states that a "review of patient charts reveals that Dr. Thaller regularly engaged in the practice of upcoding or improper coding . . . on a consistent basis when he knowingly entered CPT codes . . . for more expensive medical procedures than were actually performed" [DE 200-2]. Dr. Flores also opines that he has "observed medical records and coding audit reports in which Dr. Thaller ordered and performed staged surgical procedures which failed to completely repair patient medical issues . . . and subjected patients to unnecessary surgical procedures requiring general anesthesia which created patient harm and patient safety issues" [DE 200-2]. Finally, Dr. Flores opines that "Dr. Thaller failed to properly educate, supervise, and train resident physicians while serving as chief of the Division of Plastic Surgery at the University of Miami School of Medicine" [DE 200-2].
Defendants contend that Dr. Flores' opinion that Dr. Thaller regularly engaged in the practice of upcoding or improprer coding consists of (1) conclusory, subjective beliefs (2) that that are devoid of factual or analytical support and (3) are not the product of reliable principles and methods. Defendants also argue that Dr. Flores' opinion that Dr. Thaller performed staged procedures to the detriment of the patients is devoid of factual or analytical support. Finally, Defendants contend that Dr. Flores' opinions regarding Dr. Thaller's training of medical students and residents lie well outside Flores' area of expertise, and those opinions are devoid of factual or analytical support. Defendants, therefore, move to strike Dr. Flores' expert testimony and report in their entirety.
The history of Dr. Flores' expert disclosures and depositions is relevant to these issues. Dr. Flores' Expert Witness Report [DE 200-2] is dated April 25, 2016. For the "Facts and/or Data Considered in Forming Opinion," Dr. Flores lists the following items:
[DE 200-2]. Dr. Flores' "Statements of Medical Opinions" consists entirely of the following:
[DE 200-2]. Finally, the "Exhibits Used to Summarize and Support Opinions" were listed as follows:
[DE 200-2]. The only attachment to the Expert Witness Report is Dr. Flores' Curriculum Vitae.
Dr. Flores was deposed twice. His first deposition was taken by Plaintiff's counsel on February 6, 2016, before his Expert Witness Report was prepared. Then, on June 25, 2016, Defendants' counsel took a discovery deposition of Dr. Flores. Plaintiff argues that Dr. Flores was ill during his June 2016 deposition and that may have affected his testimony. The Court could not find any reflection of Dr. Flores' illness in the deposition transcript and, therefore, does not consider that factor in this analysis. Plaintiff also argues that Defendants' counsel repeatedly "talked over" Dr. Flores in the depositions. Although the record does reflect instances of "talking over," the Court finds that these instances did not impact the quality or substance of Dr. Flores' testimony.
Three days before the June deposition, Defendants served an Amended Notice of Taking Deposition requesting that Dr. Flores bring "[a]ny and all documents including, but not limited to, reports, records, notes or memoranda, outlines or similar writings that you will rely on to explain the opinions set forth in your expert report and/or that you will need to testify to at trial" [DE 200, n.5]. At this deposition, which took place on a Saturday, Dr. Flores was unable to provide copies of the records he reviewed in rendering his opinions; all of the items upon which he relied to render his opinions were "locked in a file room" by Dr. Flores' office manager, who was not available on the weekend to retrieve them [DE 207-2].
At oral argument, the Court asked counsel if Dr. Flores' deposition had been rescheduled to allow access to the records that Dr. Flores reviewed. Counsel for Defendants noted that they had paid $3,000.00 for the deposition, that Dr. Flores had testified that there was no reason he could not testify truthfully, and that Dr. Flores submitted no errata sheet, therefore a second deposition was not warranted. Counsel for Plaintiff was under an apparent misconception that Dr. Flores' deposition took place on one of the last days of the discovery period and could not be rescheduled.
The Court presents this history, as reported by the parties, to note the possibility that at least some of the deficiencies in Dr. Flores' testimony
As discussed above, Dr. Flores expressed his opinion that "Dr. Thaller improperly coded or upcoded on a consistent basis when he knowingly entered CPT codes . . . for more expensive medical procedures than were actually performed and in some instances when no surgical procedures were performed on a given date" [DE 200-2]. In evaluating the admissibility of Dr. Flores' opinions on coding, the Court must consider Dr. Flores' qualifications to render an opinion, the reliability of that opinion, and the opinion's helpfulness to the jury.
Rule 26(a)(2)(B) requires witnesses who are retained or specially employed to provide expert testimony in the case to prepare and sign a report that contains, in part:
Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii)(emphasis added). One purpose of the disclosure is to provide the opposing party sufficient information to reasonably prepare for cross examination.
In addition, Rule 702, Federal Rules of Evidence, requires that an expert's proposed testimony meet certain criteria, including reliability and a sufficient basis of facts and data. Fed. R. Evid. 702(b) and (c). Expert opinions that are unsubstantiated by any factual basis or "whose factual basis is not adequately explained" are properly excluded.
Dr. Flores' expert disclosure report does not provide any specific factual information in support of his opinions. The report does not contain any information about how many patient charts were reviewed, which cases were reviewed, the hospital(s) at which the surgeries were performed, the types of medical procedures that were performed or the types of CPT codes that were allegedly upcoded or improperly coded. Furthermore, Dr. Flores' report provides no specificity as to the methodology used to determine the CPT codes. Although the report does disclose that Dr. Flores reviewed the records and reports prepared by Acevedo Consulting,
Dr. Flores was also twice deposed; however, his deposition testimony does not add much, if any, factual support or reliability for his opinion that Dr. Thaller "improperly coded or upcoded on a consistent basis." Plaintiff states in his responsive memorandum [DE 207] that Dr. Flores provided detailed testimony regarding his opinions in his depositions. The sole factual basis for upcoding provided by Plaintiff from Dr. Flores' February 6, 2016 deposition is contained in pages 39-41 of that deposition transcript [DE 207-3, p. 7]:
In his June 25, 2016 deposition, Dr. Flores recounted that he reviewed nine medical files, approximately 50 entries from Jean Acevedo's expert report, and a CPT coding manual [DE 207-4, pp. 5-7].
However, Dr. Flores did not provide any specific testimony on how many of these instances occurred to support his opinion of a "trend" on rhinoplasty codes, the specific procedures performed, or the accuracy of the actual CPT codes assigned.
[DE 200-3, 4]. Accordingly, the Court agrees with Defendants that Plaintiff has failed to connect Dr. Flores' testimony on upcoding with a sufficient factual basis or foundation and, therefore, Dr. Flores' opinions on upcoding should be stricken.
Dr. Flores' second opinion addresses the nature of surgeries performed by Dr. Thaller. Dr. Flores opined in his Expert Witness Report that "I have observed medical records and coding audit reports in which Dr. Thaller ordered and performed staged surgical procedures which failed to completely repair patient medical issues. It is my opinion that Dr. Thaller disregarded patient safety and subjected patients to unnecessary surgical procedures requiring general anesthesia which created patient harm and patient safety issues" [DE 200-4]. The essence of these opinions is that Dr. Thaller ordered and performed multiple surgeries to repair cleft lips and cleft palates, when those repairs are typically made in one or two surgeries.
In his deposition, Dr. Flores testified that he has never personally seen or done a cleft lip or palate repair that required more than two surgeries, although he has known that some other physicians made repairs using four or five surgeries [DE 207-3, pp. 8-10]. He opined that "I have never seen a single person who does the same procedure more than five times on a single patient ever in my career, nor do I know anyone in the craniofacial world that has done that" [DE 207-4, p. 13].
Dr. Flores testified that he based his opinion of the quality of the surgeries performed by Dr. Thaller on a review of nine patient medical records (out of the 158 patient cases at issue in this action), including pictures and the operative reports, but not the patient progress notes or physical examination. Dr. Flores stated that in reviewing the nine cases, his "purpose was to review the operative procedure, what was dictated, what was actually performed by what was stated, whoever was the dictating physician, and what was actually coded, matching that procedure" [DE 200-3, p.6]. Yet, Dr. Flores also stated that he would need a complete medical history of a particular patient to determine if a procedure was medically necessary; he did not have that information for the nine patient charts he reviewed [DE 200-3, p. 6]. Dr. Flores did not cite, either in his Expert Witness Report or in his deposition, any learned treatises or articles that would support his opinions. For all of these reasons, Defendants argue that Dr. Flores' opinions regarding the medical necessity and harmful nature of the surgeries performed by Dr. Thaller are not based on adequate facts or data and should be stricken.
Plaintiff counters that
Although the Court agrees with Plaintiff that Dr. Flores has extensive and specialized experience in the field of craniofacial surgery, the Court finds that there is simply too great an analytical gap between the facts presented and the opinions rendered by Dr. Flores concerning the staged procedures conducted by Dr. Thaller. The Court is not required "to admit opinion evidence which is connected to existing data only by the
The third area of Dr. Flores' expert testimony that Defendants seek to strike is his opinion regarding Dr. Thaller's training of resident physicians. Dr. Flores opined that "Dr. Seth Thaller failed to provide proper guidance as a medical educator. Dr. Thaller failed to properly educate, supervise, and train resident physicians while serving as chief of the Division of Plastic Surgery at the University of Miami School of Medicine" [DE 200-4]. Defendants argue that Dr. Flores' opinions on this issue are outside the scope of his expertise. Plaintiff contends that Dr. Flores is qualified to offer opinions about the teaching program at University of Miami based upon his personally observing the program during the six months that he worked there and by comparing those observations with his experiences at Johns Hopkins, Duke, NYU, the University of Chicago, Dartmouth, UCLA, and UCSF [DE 207].
In his depositions, Dr. Flores described various practices of Dr. Thaller that Flores had either personally observed or had learned from resident physicians in the program, practices that Dr. Flores considers inadequate. According to Dr. Flores, Dr. Thaller frequently failed to attend or participate in grand rounds, failed to question the residents regarding their cases, and failed to provide constructive criticism [DE 207-4, p. 14]. Dr. Flores observed that Dr. Thaller also failed to hold weekly meetings, or any meetings, with residents to discuss their logs and cases [DE 207-4, p. 14]. Dr. Flores compared Dr. Thaller's conduct with that which he observed at other institutions and he concluded that Dr. Thaller's department is offering inadequate education to the medical residents at the University of Miami.
Although an expert's testimony may be based upon experience, "the unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable
Dr. Flores offers the opinion that Dr. Thaller and the University of Miami, at least in the department chaired by Dr. Thaller, is not adequately educating, training and supervising medical residents. However, Plaintiff has not shown that Dr. Flores possesses the experience or the necessary information to evaluate the effectiveness and adequacy of a resident physician education program. As Dr. Flores acknowledged, he has never run a department in which teaching physicians reported to him; nor has he ever reviewed the operating agreement between the University of Miami and Jackson Memorial Hospital, which would set forth the duties required of Dr. Thaller [DE 200-3, p. 20]. Further, Dr. Flores is not aware of the core curriculum required by ACGME, the medical school accrediting agency; nor does he know whether the University of Miami and Dr. Thaller fulfilled the curriculum requirements [DE 200-3, p.22]. Although Dr. Flores views the program he observed at Miami less favorably than those at the other institutions where he has worked, Dr. Flores has not offered "good grounds" — or verifiable data or standards — to support his opinion that the resident education offered in Dr. Thaller's department is inadequate. For this reason, the Court concludes that Dr. Flores' opinion on the teaching standards at University of Miami does not meet the requirements of admissibility under
In sum, having concluded that Dr. Flores' opinion testimony does not meet the requirements of admissibility under Fed. R. Evid. 702 or
For the reasons set forth above, Defendants' Motion to Strike Dr. Jaime Flores as an Expert Witness and to Strike His Expert Report [DE 200] will be GRANTED. Nothing in this recommendation affects any fact testimony that may be offered by Dr. Flores. Defendants' Motion to Strike Jean Acevedo as an Expert Witness and to Strike Her Expert Rerport [DE 201] will be DENIED.
Defendants have disclosed Larry H. Hollier, Jr., M.D. ("Dr. Hollier") as an expert witness to testify on several issues: performance of multiple surgical procedures; proper education, supervision, and training of resident physicians; CPT code billing; determination of the medical necessity of surgery; and review of specific patient records, surgical photographs, and operative reports.
Plaintiff moves to disqualify Dr. Hollier from testifying for Defendants on the basis of an alleged conflict of interest: Dr. Hollier had previously been retained in this matter as a consulting expert by the United States. Plaintiff contends that he stands in the shoes of the United States, the real party in interest, in this qui tam action and, therefore, has standing to assert the Government's claim of confidentiality as to Dr. Hollier. Plaintiff also asserts generally that Dr. Hollier's testimony is cumulative to Dr. Staffenberg's testimony and should therefore be disallowed.
Defendants argue that Dr. Hollier should not be disqualified because (1) Dr. Hollier did not have a confidential relationship with Plaintiff, notwithstanding that Plaintiff initially disclosed Dr. Hollier as a potential expert witness; (2) no confidential information was shared with Dr. Hollier by either the Government or Plaintiff; (3) disqualification at this late date would severely prejudice Defendants; and (4) any objections that Plaintiff or the Government might have had to Defendants' hiring of Dr. Hollier have been waived.
The Court heard oral argument on the Motion to Disqualify on September 28, 2016 [DE 264]. The parties had previously agreed to rely on the affidavits and exhibits in the record
Federal courts possess the inherent power to disqualify an expert witness.
When determining whether to disqualify an expert who first had contact with a party other than the proponent of his testimony, courts generally engage in the following inquiry:
In addition to the confidentiality issues, some courts also weigh policy and fairness considerations. More specifically, some courts "consider whether disqualification would be fair to the affected party and would promote the integrity of the legal process."
Dr. Hollier had much more involvement in this case than the parties themselves realized; his points of contact with the case are presented herein in the order in which each was revealed. • In June 2015, Plaintiff's initial disclosures listed four potential expert witnesses,
including Dr. Hollier [DE 237].
• Defendants accused Plaintiff of contacting and disclosing well-known experts as a preemptive attempt to make them unavailable to Defendants [DE 237]. A hearing was held before Magistrate Judge Goodman on July 10, 2015 [DE 99]. Judge Goodman ordered [DE 100] the parties to file memoranda of law discussing whether Defendants should be precluded from contacting the proposed expert witnesses who had been listed by Plaintiff.
• On July 27, 2015, Plaintiff withdrew his ore tenus motion to prohibit Defendants from interviewing and retaining the expert witnesses who he had listed in his initial disclosures [DE 114].
• Thereafter, Defendants contacted Dr. Hollier for possible retention as an expert and learned that Dr. Hollier had previously acted as a consultant to the United States in this action [DE 267, p. 119].
• In or around April 2016, the Assistant General Counsel for the Defendant University of Miami ("UM") contacted AUSA Monsour inquiring whether the Government had any objection to UM retaining Dr. Hollier as an expert in the case [DE 237-1]. Monsour would not specifically confirm whether the Government had in fact retained Dr. Hollier in the matter, but advised counsel that he would not object to UM's retaining Dr. Hollier [DE 237-1]. AUSA Monsour took the position that because the Government had declined to intervene in the case and Dr. Hollier's engagement had ended, the Government had no basis to object to Defendants retaining Dr. Hollier as an expert
• Defendants then retained Dr. Hollier as an expert witness. During Dr. Hollier's deposition, counsel for Plaintiff learned — for the first time — about the consulting work Dr. Hollier had performed for the Government [DE 262-1]. Dr. Hollier refused to answer questions about the scope of his work for the Government, stating that he had been advised by the Government that his work was confidential. [DE 264, p. 143].
• After Dr. Hollier's deposition, Plaintiff's attorney contacted AUSA Monsour to clarify that the Government had retained Dr. Hollier for work in this case [DE 262-1]. Monsour provided a redacted copy of the Government's contract for services with Dr. Hollier [DE 222-3]. The Government had hired Dr. Hollier as a "Litigative Consultant" to review claims that Dr. Seth Thaller had intentionally performed unnecessary cleft lip and cleft palate surgeries in piecemeal fashion, where one surgery should have resolved the issue, in order to "increase the billing he and UM submitted to Medicaid, Medicare, and other federally funded healthcare programs" [DE 222-3, p. 7]. The agreement between the Government and Dr. Hollier contained a confidentiality provision that by its terms survived the termination of the agreement [DE 222-3, pp. 10-11].
• At the hearing before Court, counsel for Plaintiff disclosed — for the first time — that conversations between Plaintiff's counsel and Dr. Hollier had taken place before the suit was filed in 2012 [DE 264, p. 147]. Indeed, AUSA Monsour did not learn about Hollier's pre-suit discussions with Plaintiff's counsel until the September 30, 2016, ex parte hearing [DE 267].
• To be clear, Dr. Hollier has, at various times since 2011, either spoken to or consulted with three of the four entities that have an interest in this case: the Relator, the Government, and the Defendants.
Thus, the issues for consideration in this Motion to Disqualify are as follows: (1) Was there a confidential relationship between Dr. Hollier and the United States? (2) Was there confidential material exchanged between the United States and Dr. Hollier? (3) Is the United States the "real party in interest" in this case, such that Dr. Hollier cannot be permitted to "switch sides" and testify for Defendants, notwithstanding the Government's lack of objection? and (4) If disqualification is warranted, would it be fair to Defendants and promote the integrity of the legal process?
There is no dispute that Dr. Hollier's relationship with the Government during its investigation of this matter was intended to be, and was in fact, confidential. Dr. Hollier's agreement with the Government states, in part:
Indeed, AUSA Monsour testified at the ex parte hearing that all consultants retained by the Government are asked to sign a confidentiality agreement because of the investigative nature of qui tam actions. At the time the Government retains a consulting expert in a qui tam action, the case is sealed, the fact of its existence has not been made public, and the Government has yet to make a decision to intervene [DE 267, p. 6]. Thus, the Government is highly interested in maintaining the confidentiality of the consulting expert's work. Furthermore, the investigation in this case involved private citizens' confidential medical information and other confidential material. Thus, the first prong of the analysis is met: the Government and Dr. Hollier intended that Dr. Hollier's work for the Government be confidential, at least during the time of the engagement.
Even where a formal contractual relationship exists, blanket disqualification of an expert witness may not be warranted.
AUSA Monsour did not disclose any of the Government's strategies, information about the identity of the Relator, the complaint, or the allegations being made by the Relator,
"Unlike attorney-client communications, discussions between parties or counsel and experts do not carry the presumption that confidential information was exchanged."
The parties dispute whether Plaintiff has standing to raise the issue of disqualification of Dr. Hollier. Plaintiff never retained Dr. Hollier as an expert, and has not proffered any confidential information that was shared with Dr. Hollier. As a result, Defendants argue that no confidential relationship existed between Hollier and Plaintiff that would give Plaintiff standing to seek Dr. Hollier's disqualification. Plaintiff counters that the Government is the real party in interest in this qui tam action and, therefore, Dr. Hollier can not be permitted to simply "switch sides" and testify for Defendants. However, the issue on proposed disqualification of an expert is not the "side" with which the expert originally consulted, but whether the relationship was reasonably considered to be confidential and whether there was an exchange of confidential information. There having been no disclosure of confidential information by the Government to Dr. Hollier, the Government's status as a "real party in interest" in this qui tam action does not affect the disqualification analysis.
The parties strenuously argue the policy considerations implicated by the requested disqualification of Dr. Hollier. Defendants argue that their case would be severely damaged if their expert witness were disqualified at this late date before trial. Defendants also argue that Plaintiff (and the Government) waived any objections to Dr. Hollier's testimony by having previously consented, or not objected, to his hiring by Defendants. For his part, Plaintiff argues that there is a substantial likelihood of prejudice if the jury were to learn that Dr. Hollier previously consulted for the Government and that a limiting instruction would serve little to no purpose in light of the potential harm. Plaintiff also argues that Defendants have retained another medical expert, Dr. Staffenberg, and therefore disqualification of Dr. Hollier is not likely to damage Defendants' case.
In light of the Court's conclusion that disqualification of Dr. Hollier is not warranted, Defendants' arguments regarding waiver and prejudice need not be addressed. However, the Court notes that Defendants had acknowledged to AUSA Monsour that they were aware of a potential challenge to Dr. Hollier's testimony even before they retained him, yet they were confident that they would prevail on such a challenge [DE 267]. The Court concludes, therefore, that Defendants cannot persuasively claim prejudice after entering into a relationship with Dr. Hollier with full knowledge of the risks.
As for Plaintiff's argument that he would be severely prejudiced if the jury were to learn that Dr. Hollier previously consulted for the Government in this case, the undersigned submits that a motion in limine to exclude any reference to Dr. Hollier's consulting for the Government would be the appropriate vehicle through which to resolve that issue. Finally, as mentioned earlier, the cumulative nature of testimony from Dr. Hollier and Dr. Staffenberg is an evidentiary matter for the trial court.
The Court acknowledges a certain level of discomfort with the fact that Dr. Hollier has, at various times, spoken to or consulted with Plaintiff, the Government, and Defendants. His having done so raises concerns that could justify disqualification.
In light of the foregoing discussion on the matters referred, it is hereby
Monsour knew of no specific confidences that Dr. Hollier would be required to maintain [DE 267, p. 30].
