United States of America and State of Minnesota ex rel. Ashley Mothershed v…
United States of America and State of Minnesota ex rel. Ashley Mothershed v. Mayo Clinic Ambulance
- Donovan Frank
- 0:22-cv-00602
- U.S. District Court · District of Minnesota
- 15
In Mothershed v. Mayo Clinic Ambulance, Magistrate Judge Docherty granted in part and denied in part a motion to compel discovery, setting a narrower time window and mixed substantive scope for two billing fraud claims.
Whistleblowers (relators) who bring False Claims Act qui tam lawsuits, particularly those in healthcare billing disputes; ambulance and other healthcare service companies that are defendants in such cases; and attorneys litigating the temporal and substantive scope of discovery in complex FCA actions.
What happened
In United States of America and State of Minnesota ex rel. Ashley Mothershed v. Mayo Clinic Ambulance, a former billing department employee sued Mayo Clinic Ambulance under the federal and Minnesota False Claims Acts, alleging that Mayo submitted fraudulent claims to government healthcare payors. Two theories survived an earlier dismissal: (1) upcoding non-emergency ambulance transports as emergency transports, and (2) upcoding basic life support services as advanced life support services. The parties disagreed about how far back in time discovery should reach and how broadly it should cover each alleged scheme.
On the time period, the plaintiff wanted discovery spanning from March 2012 (ten years before the lawsuit was filed) through the present — more than thirteen years of records. Mayo wanted to limit discovery to the period of the plaintiff's actual employment, roughly November 2020 to May 2022. The court found that the complaint lacked specific factual allegations tying the fraud to dates before 2020, other than general or conclusory statements about 'ongoing' or 'systemic' practices, which were insufficient to justify the full span requested. On the substantive scope, the court found that the emergency upcoding claim was broad enough to cover all types of non-emergency transports wrongly billed as emergency — not just hospital-to-hospital transfers — because the complaint described a general pattern backed by specific examples. However, the court found the advanced life support upcoding claim was supported only by two narrow examples and limited discovery for that claim accordingly.
Magistrate Judge John F. Docherty granted the motion to compel in part and denied it in part. The court set the discovery time period as November 1, 2018, to March 8, 2022 — two years before the plaintiff's employment began through the date the original complaint was filed — with the possibility of expanding it if early discovery reveals earlier fraud. Discovery on the emergency upcoding claim may cover all non-emergency transports billed as emergency, not just hospital-to-hospital transfers. Discovery on the advanced life support upcoding claim is limited to situations where a basic-level emergency medical technician assessed the patient and neither an advanced life support assessment nor an advanced life support intervention was performed. The court also denied the plaintiff's request to compel documents about Mayo's investigations into complaints unrelated to the surviving upcoding claims.
The detailed version
- United States of America and State of Minnesota ex rel. Ashley Mothershed v… · No. 0:22-cv-00602
- Donovan Frank
- Oct. 31, 2025
Background
Ashley Mothershed worked in Mayo Clinic Ambulance's billing department from approximately November 2020 through June 2021, and again from approximately September 2021 through May 2022. She initiated this qui tam action — a lawsuit brought by a private individual (called a "relator") on behalf of the government, with the relator potentially sharing in any recovery — alleging that Mayo submitted false claims to government healthcare payors in violation of the federal False Claims Act (FCA) and the Minnesota False Claims Act.
Her Second Amended Complaint (SAC), the operative pleading, alleged three fraudulent billing schemes: (1) billing for medically unnecessary ambulance transports; (2) upcoding non-emergency transports as emergency transports; and (3) upcoding basic life support (BLS) services as advanced life support (ALS) services. The Honorable Donovan W. Frank, United States District Judge, previously dismissed the medical-necessity theory. The two upcoding theories remain active.
The case entered the discovery phase, and the parties disputed both the temporal scope and the substantive scope of discovery. Mothershed filed a motion to compel under Federal Rule of Civil Procedure 37(a)(1), which authorizes a party to seek a court order requiring the opposing party to respond to discovery requests.
Legal Standards
Under Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery of any nonprivileged matter relevant to any claim or defense and proportional to the needs of the case. Proportionality factors include the importance of the issues, the amount in controversy, the parties' relative access to information, the parties' resources, and whether the burden of the discovery outweighs its likely benefit. The moving party must make a threshold showing of relevance; once shown, the burden shifts to the opposing party to show the discovery is irrelevant or unduly burdensome.
Temporal Scope
Mothershed sought discovery from March 8, 2012 (ten years before filing, tracking the FCA's statute of limitations under 31 U.S.C. § 3731(b)(2)) through the present — a span exceeding thirteen years. Mayo sought to limit discovery to November 2020 through May 2022, roughly coextensive with Mothershed's employment.
The court noted that the non-FCA cases Mothershed cited were of limited value and that her authority did not establish that the discovery period must equal the statute-of-limitations period. The court emphasized that in FCA qui tam cases, courts must guard against "roving commissions" into a defendant's billing practices while also not discouraging whistleblowing by arbitrarily limiting discovery to the relator's employment period.
The court analyzed each SAC paragraph Mothershed offered to justify the extended timeframe:
- Paragraph 146 (Mayo employee's remark about a seminar "over ten years ago"): Mothershed herself clarified this related to the dismissed medical-necessity theory, and counsel did not represent it covered the surviving ALS or emergency upcoding practices. Insufficient. - Paragraphs 6, 43, and 120 (alleging fraud starting "as early as 2015 and perhaps earlier"): No factual allegations tied to specific services or billing activities in 2012 or 2015. Conclusory references to "ongoing" fraud are insufficient without specific instances. - Paragraph 56 (comparative billing rate data from 2013–2022 showing Mayo billed 95.72% of transports as emergency versus 30% and 34% for two other companies): The court found this too speculative — the disparity could reflect many non-fraudulent explanations — and the data was not broken down by year, preventing the court from identifying any particular starting point. - Paragraph 123 (public claims data showing Mayo billed 60% of transports as ALS from 2013–2022): Only two specific ALS billing examples were alleged, both from 2021. Insufficient to justify earlier discovery. - Paragraphs 2, 4, 6, 40, 41, 43, 146, 162, and 163 (allegations of "systemic" practices): No detailed factual matter sufficient to support a plausible allegation of fraud dating to 2012.
Nonetheless, the court agreed with Mothershed's point that fraud, if it occurred, likely did not begin on the day she started working. Exercising its discretion, the court set November 1, 2018 (two years before her employment began) as the start of the discovery period, and March 8, 2022 (the date the original complaint was filed) as the end date. The court noted that if discovery reveals fraud predating November 1, 2018, Mothershed may move to expand the temporal scope.
Substantive Scope — Emergency Upcoding
Mayo sought to limit the emergency upcoding discovery to hospital-to-hospital transfers only, based on the three representative examples in the SAC. Mothershed argued the claim covers all upcoded emergency claims.
The court found the SAC alleged a broader scheme. In addition to hospital-to-hospital transfers, the SAC alleged Mayo coded transports as emergent even when they were scheduled in advance, not in immediate response to a 911 call, not dispatched as quickly as possible, or were routine transports (e.g., to dialysis). These allegations were based on Mothershed's personal knowledge and experience, including firsthand observations of Mayo's Regulatory Officer directing the billing department to classify almost every transport as emergency. Because the SAC described a "general fact pattern of alleged fraudulent behavior supported by specific examples," the court allowed discovery into the broader scheme of upcoding non-emergency transports — not limited to hospital-to-hospital transfers.
Substantive Scope — ALS Upcoding
Mayo sought to limit ALS upcoding discovery to situations where an EMT-Basic (rather than a paramedic; only Intermediate- and Paramedic-level EMTs can provide ALS services under 42 C.F.R. § 414.605) assessed the patient and no ALS assessment or ALS intervention was performed. Mothershed argued the claim covers any time an ALS assessment or intervention was not performed, regardless of who assessed the patient.
The court found that the SAC's two specific ALS billing examples both involved EMT-Basics with no ALS assessment or intervention. Beyond those two examples, the SAC contained only conclusory allegations of ALS upcoding. Finding no well-pleaded factual support for a broader scheme, the court limited ALS upcoding discovery to situations where Mayo billed for ALS services when an EMT-Basic assessed the patient and neither an ALS assessment nor an ALS intervention was performed.
Request for Production No. 23
Mothershed's Request for Production No. 23 sought all documents reflecting Mayo's investigations into any of her complaints about improper billing — not just the surviving upcoding theories. She argued this evidence was relevant to Mayo's "knowledge and scienter" (i.e., knowing intent) under the FCA.
The court denied this request. To establish FCA liability, a relator must show the defendant acted knowingly with respect to the particular false claim at issue. See 31 U.S.C. § 3729(a)(1)(A). Mothershed did not show how Mayo's knowledge of general billing deficiencies or the dismissed medical-necessity theory was relevant or proportional to the surviving upcoding claims. Mayo had already agreed to produce documents that touched on multiple issues including the surviving claims.
Disposition
The motion to compel (Dkt. No. 106) was granted in part and denied in part:
- The temporal scope for discovery on Document Request Nos. 3–12, 15–22, and 25, and Interrogatory Nos. 3–5 and 7, is November 1, 2018, to March 8, 2022.
- The emergency upcoding discovery (Document Request Nos. 3–12, 14–17, 19, 21, 23, and 25 and Interrogatory No. 7) is not limited to hospital-to-hospital transfers — it covers the broader alleged scheme as described above.
- The ALS upcoding discovery is limited to situations where an EMT-Basic assessed the patient and neither an ALS assessment nor an ALS intervention was performed.
- In response to Document Request No. 23, Mayo is not required to produce documents about investigations into Mothershed's billing concerns beyond those related to the surviving upcoding claims.
Read the full 15-page opinion on CourtListener, the free public archive maintained by the Free Law Project.