United States of America ex rel. Uri Bassan v. Omnicare, Inc.

Nature of the ruling

This opinion contains reserved evidentiary rulings in a case involving the United States, Uri Bassan, Omnicare, Inc., and CVS Health Corp. The court addressed whether particular exhibits could be used to prove Omnicare’s liability. The opinion did not decide liability or resolve the underlying False Claims Act dispute.

Background

The disputed evidence concerned Omnicare’s Standard Operating Procedure 40 and changes to dispensing practices at long-term-care facilities. The Government represented that SOP 40 had required the relevant conduct since 2008. Judge McMahon found that the 2013 and 2016 versions were materially different. The 2016 revision added specific requirements concerning facilities where prescription “rollovers” were not allowed, obtaining current prescriptions, and computer coding.

The judge concluded that the 2016 changes appeared to be a subsequent remedial measure: a change made after a problem arose to address or prevent it. Under Federal Rule of Evidence 407, such evidence generally cannot be used to prove culpable conduct, although it may be admitted for other purposes such as impeachment, ownership, control, or feasibility of precautions. The court also distinguished the implementation of a revised policy from discussions about the need to revise the policy.

Rulings on exhibits

- GX-5-1: Admitted with the parties’ agreed redactions. - GX-5-3 and GX-5-4: Objections sustained; not admitted because they summarized the February 2016 remedial policy revision. The court noted that GX-5-4 appeared to duplicate GX-5-3. - GX-40: Objection sustained; not admitted because the March 2016 email chain announced and circulated the revised SOP 40, which constituted implementation of the new policy. - GX-62: Objection overruled and admitted to the extent it discussed the need for a new policy. Objections sustained and the material was not admitted as to GX-62-1 and GX-62-2, which appeared to be early versions of the revised policy. - GX-63: Admitted because it discussed revising the policy. Objections sustained and the material was not admitted as to GX-63-1, GX-63-2, GX-63-4, and GX-63-5 because they were essentially the revised policy. GX-63-3, an excerpt from a pre-existing user guide, was admitted. - GX-96: Objection sustained; not admitted because the 2018 emails and instructions described a later change to Oasis that appeared to be a subsequent remedial measure. - GX-120 and GX-146: The court did not rule finally. It requested more information about whether the 2018 changes to OmniDX and Oasis were additional subsequent remedial measures. - GX-147: The court indicated that the email chain was not evidence of a subsequent remedial measure but questioned its relevance. The parties had not argued that relevance objection, so the court planned to discuss it later. - GX-156: The court did not rule finally because it needed information about when and in what context an attached document was created, including whether one paragraph reflected the 2016 remedial measure. - GX-157: Objection overruled and admitted because the emails discussed possible policy changes and were not themselves a policy. - GX-158: Objection overruled and admitted because the emails provided background about the 2016 changes and discussed whether Oasis also needed correction, rather than showing an implemented 2018 remedial measure. - GX-173, GX-173-3, and GX-173-6: Objections overruled and the exhibits admitted because they were background and survey-related materials, not evidence of the subsequent coding change. - GX-176: The court requested more information. The documents described turning off rollover functions, identifying facilities that allowed rollovers, and related action items, but the court said it did not yet understand their relevance or how they qualified as evidence of subsequent remedial measures. - GX-194: Objection overruled and admitted because the emails appeared to be background about the process that led to a possible Oasis overhaul, rather than the measure itself. - GX-209: Objection overruled and the exhibit admitted because it was a compliance risk assessment, not a subsequent remedial measure. The court said the parties should correct any compliance issues involving dates. - GX-213: The duplicated pages received the same ruling and redactions as the corresponding GX-5 exhibits. A page containing only a reference to a rollover issue was admitted because it was not itself a remedial measure. - GX-303: Objection sustained; not admitted because the email chain circulated the updated SOP 40 and implemented a subsequent remedial measure. - GX-415 and GX-415-3: Objection sustained; not admitted because the materials showed circulation of the fourth SOP 40 revision, which the court treated as implementation of a subsequent remedial measure. - GX-416: Objection overruled and admitted as to the slide describing the rollback of the 2016 change. The court stated that the rollback was not itself a subsequent remedial measure, although jurors would be instructed not to treat the original coding change as proof that Omnicare had previously acted wrongfully. - GX-418: Objection sustained; not admitted because the slide deck described the subsequent remedial measure requiring pharmacies to review facility entries and related Oasis and OmniDX changes. - GX-500: Objection sustained; not admitted because the emails and attachments described actions needed to bring pharmacies into compliance with the new policy and appeared to constitute a subsequent remedial measure.

Disposition and significance

Judge McMahon made a series of exhibit-specific evidentiary rulings. She admitted documents that provided background or discussed proposed changes, but excluded many documents showing the implementation of later policy and coding changes when offered to prove liability. The opinion left the rulings on GX-120, GX-146, GX-156, and GX-176 unresolved and indicated that the court would address the remaining relevance issue concerning GX-147 later.