Feinwachs v. HealthPartners, Inc.

Background

David Feinwachs formerly served as the Minnesota Hospital Association’s general counsel and lobbyist. The Minnesota Hospital Association is a trade association representing Minnesota hospitals and health-care systems, and its subsidiary, MCCA, directly employs the people who perform the association’s work. Feinwachs sued multiple defendants under the federal False Claims Act and the Minnesota False Claims Act. The only remaining claims are retaliation claims alleging that the Minnesota Hospital Association and MCCA terminated his employment because he tried to stop what he believed was Medicaid fraud. The defendants contend that he was terminated for insubordination.

The order addressed Feinwachs’s appeal of a magistrate judge’s ruling about sealing documents and eight motions in limine, which are requests to decide before trial whether particular evidence may be presented to the jury.

Appeal of the Sealing Ruling

Before the lawsuit began, Feinwachs’s attorney sent Feinwachs and former co-plaintiff David Kunz two emails about gathering evidence related to the lawsuit. Kunz later forwarded the emails to Feinwachs’s work email account, and the Minnesota Hospital Association discovered them on its computer network.

The court had previously ruled that emails found on the association’s computer network were not private and that the attorney-client privilege had been waived as to them. The district court held that this prior ruling continued to control the attorney-client-privilege issue. But the court found that the magistrate judge clearly erred by treating the prior ruling as also resolving the work-product issue. The prior judge had stated that the court would later decide whether the emails were work product, meaning materials prepared because of the prospect of litigation.

Judge Wright concluded that the emails were created in anticipation of litigation and reflected counsel’s mental impressions, conclusions, opinions, and legal theories. They were therefore opinion work product, a highly protected category of work product. The court also concluded that work-product protection had not been waived because nothing in the record showed that Feinwachs, Kunz, or the attorney intended an adversary or another third party to see the emails.

The court reversed the April 5, 2019 order to the extent it ordered documents unsealed on that basis and remanded the sealing issue to the magistrate judge for further proceedings consistent with the order.

Feinwachs’s Motions in Limine

- Dismissal of earlier whistleblower claims: The motion to exclude evidence that Feinwachs had filed and later voluntarily dismissed earlier whistleblower claims was granted. The court held that filing or winning those claims was not required to prove the retaliation claims. Although the evidence might have had limited relevance to damages, that value was outweighed by the risks of unfair prejudice and jury confusion. - Gun-ownership advocacy: The motion was granted in part. The court maintained the prior ruling generally excluding evidence of Feinwachs’s gun advocacy and the value of his gun collection, while allowing limited references that might be needed to explain a connection to witnesses or emails. The court separately excluded evidence that the defendants had raised concerns about or tried to limit his gun-advocacy activities because that evidence had little relevance to the termination decision and risked unfair prejudice. - Contingency-fee agreement: The motion to exclude evidence about the date and terms of Feinwachs’s agreement with his attorney was denied. The court left objections to be decided at trial if the evidence was offered. - Lobbying efforts: The motion to exclude evidence of Feinwachs’s and his attorney’s prior lobbying about the Minnesota False Claims Act was denied. The court left the issue to be assessed in the context of trial testimony, because the evidence could be relevant to whether Feinwachs had a good-faith and reasonable belief that his conduct could lead to a viable false-claims action. - 2010 email: The motion to exclude evidence of the July 12, 2010 email was granted in part and denied in part as addressed in the order. The court ruled that Feinwachs’s motion was granted to the extent it sought to exclude evidence of or reference to the 2010 emails based on the work-product doctrine. The court separately left unresolved the request to prevent defendants from calling Feinwachs’s attorney as a witness, stating that issue was premature and would be addressed if the evidence were offered. - Alcohol-treatment records: The motion to exclude specified entries from Feinwachs’s treatment records was denied. The court agreed that the records could be relevant to his claim for emotional-distress damages, including his asserted claim for at least $1.5 million, while noting that objections about scope and other possible uses, such as impeachment, could be addressed during trial.

Defendants’ Motions and Objections

- Eileen Smith’s testimony: Defendants’ motion to exclude testimony from an undisclosed witness was denied. The court concluded that the late disclosure of Smith was harmless because defendants had not shown undue prejudice or a lack of opportunity to reduce any prejudice. - Deposition testimony: Defendants’ objections to Feinwachs’s amended designation of deposition testimony were sustained in part. Feinwachs could not use Matthew Anderson’s deposition instead of live testimony because he was not an MHA employee when deposed and no other basis under the applicable rule was identified. Feinwachs also could not use Lawrence Massa’s deposition instead of live testimony because Massa was available, defendants intended to call him, and the proposed video presentation would likely be confusing, inefficient, cumulative, and delayed by numerous objections. The court noted that Feinwachs could use Massa’s prior statements for impeachment if his live testimony contradicted them. The court would address objections concerning portions of Dr. Terence Pladson’s deposition testimony as necessary during trial.

Other Pretrial Rulings and Disposition

The court denied defendants’ request to examine witnesses called during Feinwachs’s case-in-chief without recalling them during defendants’ case. The court also denied the parties’ request to give jurors draft jury instructions at the start of trial and denied their request to make short opening statements before jury questioning. Final instructions would instead be given orally and in writing immediately before deliberations.

The April 5, 2019 order was reversed, and the sealing issue was remanded to the magistrate judge. The case was scheduled for trial beginning January 27, 2020.