United States of America, ex rel. v. Sightpath Medical, Inc.

Background

The plaintiffs asked for permission to revise the claims being presented to the jury and to present rebuttal evidence. The case alleges that The Cameron-Ehlen Group, Inc., doing business as Precision Lens, and Paul Ehlen offered unlawful kickbacks to ophthalmologists, causing those physicians to submit false or fraudulent claims for Precision Lens products to Medicare, in alleged violation of the False Claims Act.

The jury trial began on January 9, 2023. The plaintiffs rested on January 31, 2023, and the defendants’ case was nearing completion. The plaintiffs sought to withdraw 18 alleged kickbacks and the related false claims, and sought to present rebuttal evidence from Ian Dew, Dr. Adriane Fugh-Berman, and Kevin Johnson.

Revision of Claims

Federal Rule of Civil Procedure 15(b)(1) governs amendments during trial. The court explained that amendments should generally be allowed when they help present the merits and the opposing party does not show prejudice. The court also stated that the jury should not decide matters that are no longer disputed.

The defendants agreed that the 18 alleged kickbacks and related false claims should not be presented to the jury, although they requested substitute exhibits and a jury instruction concerning the revision. Because the plaintiffs acknowledged that they had not established those 18 kickbacks, the court found that keeping them on the verdict form could confuse the jury and produce an inconsistent verdict. The court granted the plaintiffs’ request to withdraw the 18 kickbacks and related alleged false claims.

Rebuttal Evidence

Rebuttal evidence is evidence used to explain, counter, or disprove the opposing party’s evidence, particularly new or unforeseen facts brought out during the opposing party’s case. It is not intended to establish evidence that should have been presented during a party’s main case.

The court denied as moot the request to present Ian Dew’s live testimony because the defendants had agreed to the claim revision, making his testimony unnecessary.

The court denied the request to present Dr. Adriane Fugh-Berman’s testimony. Although the plaintiffs said her testimony would respond to defense expert Scott Van Meter, the court found that her proposed testimony concerned physician motivation and the effect of gifts and incentives—subjects Van Meter had not addressed. The court also found that evidence about whether physicians were influenced by the alleged kickbacks had been a recurring issue and was not new or unforeseen. Her testimony could have been presented during the plaintiffs’ main case.

The court granted the request to present Kevin Johnson’s deposition testimony. Johnson, an attorney, had been questioned about advice he gave the defendants concerning Federal Aviation Administration rules and regulations. Because the parties disputed testimony about Federal Aviation Administration requirements for private charters, the court found that Johnson’s testimony was proper rebuttal evidence that would assist the jury.

Disposition

Judge Wilhelmina M. Wright ordered that the plaintiffs’ request to revise the kickbacks and false claims at issue was GRANTED. The plaintiffs’ request to present rebuttal testimony was GRANTED IN PART AND DENIED IN PART. The opinion does not decide the underlying False Claims Act allegations; it addresses the claims and evidence to be presented during the ongoing trial.