`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`Plaintiffs/Relator,
`
`
`UNITED STATES OF AMERICA
`and THE STATE OF FLORIDA ex
`rel. CHRISTINA PAUL
`
`
`
`v.
`
`BIOTRONIK, INC.,
`
`Defendant.
`
`___________________________________/
`
`Case No: 8:18-cv-396-T-36JSS
`
`O R D E R
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`This matter comes before the Court upon Defendant Biotronik Inc.’s Motion to
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`Dismiss the Second Amended Complaint and Supporting Memorandum of Law [Doc.
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`50], Plaintiffs/ Relator’s Response in Opposition [Doc. 53], and Defendant’s Reply to
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`Plaintiff’s Opposition [Doc. 57]. The Court, having considered the motion, will
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`GRANT Defendant’s Motion to Dismiss for the reasons stated herein.
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`I. BACKGROUND AND FACTS 1
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`Defendant, Biotronik, is a medical device company with products and services
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`related to patients suffering from cardiovascular and endovascular diseases. [Doc. 49
`
`¶ 5]. Relator, Christina Paul, was an employee of Biotronik, from April 7, 2014 until
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`
`1 The following statement of facts is derived from Relator’s Second Amended Complaint
`(Doc. 49), the allegations of which the Court must accept as true in ruling on the instant
`Motion to Dismiss. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods
`de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir. 1983).
`
`
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`1
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`
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 2 of 16 PageID 456
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`June 2019. Id. ¶ 4. During that time, she worked as a Field Clinical Specialist, then as
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`a Diagnostic Specialist Id. In both of her positions, Relator provided technical and
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`clinical support to some of Defendant’s sales staff. Id. Since at least April of 2014,
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`Defendant has allegedly generated consumer demand for its services and devices
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`through a fraudulent scheme in which it induces medical professionals to use its
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`products and services through illegal incentives it pays, in violation of the federal anti-
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`kickback statute. Id. ¶ 18.
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`Relator specifically alleges that from 2014 through June 2019, Defendant’s
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`employee, Paul McLoughlin, with Defendant’s knowledge, provided incentives—
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`including vacations and trips, meals, payments for cell phone bills, entertainment,
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`holiday gifts, grand opening expenses, parties, marketing events, and donations—to
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`referral sources and to physicians in exchange for their use of its services and products.
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`Id. ¶¶ 19, 21. Relator identifies eleven physicians who were involved in this scheme:
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`Dr. Ketul Chauhan; Dr. Rajesh Lall; Dr. Aung Tun; Dr. Ramanath Rao; Dr. Phillip
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`Owen; Dr. Osama Al-Suleiman; Dr. Binu Jacob; Dr. Oji Joseph; Dr. Luis Carillo; Dr.
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`Siva Bhashyam; and Dr. Irfan Siddiqui. Id. ¶¶ 22-31. Relator alleges she witnessed the
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`illegal procuring of these clients. Id. ¶ 32.
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`Through this fraudulent scheme, Defendant allegedly gained market share and
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`increased its profits in the form of an average $3,000 for each loop device, $7,000 for
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`each pacemaker, $13,500 for each defibrillator, and $26,000 for each biventricular
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`defibrillator. Id. ¶ 33. Defendant charged Medicare, Medicaid, and other Government-
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`funded healthcare programs an additional $500-1,000 per implanted device under the
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`2
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 3 of 16 PageID 457
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`guise of a home monitoring program that was not ordered by the physicians, was not
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`consented to by the patients, and never occurred. Id. ¶ 34. Relator provided a list of
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`eighty-five patients who were improperly placed on home monitoring or implanted
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`with Defendant’s products as a result of Defendant’s kickback scheme. Id. ¶ 44.
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`Relator specifically alleges that McLoughlin was authorized by Defendant to
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`set up and bill to Medicare and Medicaid home monitoring services for patients
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`without the approval of the attending physicians. Id. ¶ 35. For example, in June 2017
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`McLoughlin set up home monitoring services for several of Dr. Ahmed’s patients,
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`despite the doctor’s refusal, and billed these services to Medicare and Medicaid. Id. ¶¶
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`36-37. On August 23, 2017, Dr. Ahmed’s nurse, Ursula Morrow, contacted Relator
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`advising that Dr. Ahmed’s patients were coming into the clinic with home monitoring
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`devices and asking what needed to be done. Id. ¶ 38. Ms. Morrow told Relator that
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`neither she nor Dr. Ahmed knew about or had access to the home monitoring
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`accounts, and requested an explanation. Id. Relator reported this to Defendant’s Home
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`Monitoring Department Management Representative, John Fitzke, in August 2017. 2
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`Id. ¶¶ 40-41. Defendant never took any steps to remedy the Home Monitoring issue or
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`address the misconduct reported by Relator, and its Vice President of Regulatory
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`Affairs subsequently instructed all employees not to put conversations with physicians
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`or among staff in writing, and warned employees written communications could be
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`subject to subpoena. Id. at ¶¶ 42-43, 46.
`
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`2 Relator’s August 25, 2017 letter to Defendant regarding the home monitoring practices
`taking place within Dr. Ahmed’s practice is provided with the complaint.
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`
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`3
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 4 of 16 PageID 458
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`On May 14, 2020, Relator filed a Second Amended Complaint3 against
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`Defendant, asserting claims under the federal False Claims Act, 31 U.S.C. § 3729, and
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`Florida’s False Claims Act, § 68.082(2)(a), Fla. Stat. [Doc. 49]. Defendant has again
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`moved to dismiss for failure to state a claim and failure to meet the heightened pleading
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`requirements for fraud claims. [Doc. 50]. Among other things, it argues that the
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`complaint does not sufficiently plead a kickback scheme; does not provide particular
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`facts about fraudulent submissions to the government; fails to state which federal
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`programs received and paid the claims; fails to identify any payment obligation
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`Defendant had to the government; and does not allege a causal connection between
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`Defendant’s action and the submission of any false claim. Id. at pp. 7-15. Relator
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`contends that the Second Amended Complaint satisfies all of the requirements
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`identified by the Court in the order dismissing the original complaint and is sufficient
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`to meet the necessary pleading standard for causes of action under the False Claims
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`Acts. [Doc. 53].
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`II. LEGAL STANDARD
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`To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a
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`“short and plain statement of the claim showing that the pleader is entitled to relief.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,
`
`
`3 This lawsuit was originally filed on February 15, 2018. [Doc. 1]. Both the United States and
`the State of Florida declined intervention. [Docs. 18, 27]. Defendant moved to dismiss the
`complaint for failure to state a claim and failure to meet the heightened pleading requirements
`for fraud claims and the motion was granted with leave to amend the complaint. [Docs. 26,
`45].
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`
`
`4
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`
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 5 of 16 PageID 459
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`conclusions and formulaic recitations of the elements of a cause of action are not
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`sufficient. Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore,
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`mere naked assertions are not sufficient. Id. A complaint must contain sufficient
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`factual matter, which, if accepted as true, would “state a claim to relief that is plausible
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`on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
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`when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).
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`The court, however, is not bound to accept as true a legal conclusion stated as a
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`“factual allegation” in the complaint. Id.
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`Additionally, Federal Rule of Civil Procedure 9(b) places more stringent
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`pleading requirements on claims alleging fraud. Fed. R. Civ. P. 9(b). “[U]nder Rule
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`9(b) allegations of fraud must include facts as to time, place, and substance of the
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`defendant’s alleged fraud.” United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290
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`F.3d 1301, 1308 (11th Cir. 2002) (citation and internal quotations omitted). Plaintiffs
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`are thereby required to set forth “the details of the defendants' allegedly fraudulent
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`acts, when they occurred, and who engaged in them.” Hopper v. Solvay Pharm., Inc.,
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`588 F.3d 1318, 1324 (11th Cir. 2009) (internal quotation marks omitted) (citing
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`Clausen, 290 F.3d at 1310). Failure to satisfy the particularity requirement under Rule
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`9(b) amounts to failure to state a claim until Rule 12(b)(6). See, e.g., Corsello v. Lincare,
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`Inc., 428 F.3d 1008, 1012 (11th Cir. 2005).
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`5
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 6 of 16 PageID 460
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`III. DISCUSSION
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`Relator has alleged federal and Florida False Claims Act violations arising from
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`an alleged unlawful kickback scheme between Defendant and eleven doctors. [Doc.
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`49 at ¶¶ 22, 48-81]. The False Claims Act, 31 U.S.C. § 3729 et seq., imposes civil
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`liability on “any person who ... knowingly presents, or causes to be presented, a false
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`or fraudulent claim for payment” to the federal government or who “knowingly
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`makes, uses, or causes to be made or used, a false record or statement material to a
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`false or fraudulent claim.” United States v. AseraCare, Inc., 938 F.3d 1278, 1284 (11th
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`Cir. 2019) (quoting 31 U.S.C. § 3729(a)(1)(A)–(B)). It also “imposes liability on any
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`person who knowingly makes, uses, or causes to be made or used, a false record or
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`statement to conceal, avoid, or decrease an obligation to pay or transmit money or
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`property to the Government[.]” U.S. ex rel. Matheny v. Medco Health Sols., Inc., 671 F.3d
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`1217, 1221–22 (11th Cir. 2012). “Florida has . . . a parallel statutory scheme with
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`similar provisions.” Carrel v. AIDS Healthcare Found., Inc., 898 F.3d 1267, 1272 (11th
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`Cir. 2018) (citing Fla. Stat. §§ 68.082(2)(a), (b), (g); 68.083(2)). 4 The Act “serves as a
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`mechanism by which the Government may police noncompliance with Medicare
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`reimbursement standards after payment has been made.” AseraCare, Inc., 938 F.3d at
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`1284.
`
`
`4 “Because the Florida False Claims Act is modeled after the Federal False Claims act, the
`claims will be analyzed using the same general standards.” United States ex rel. Watine v. Cypres
`Health Sys. Fla., Inc., No. 1:09-cv-0137-SPM-GRJ, 2012 WL 467894, and *1 (N.D. Fla. Feb.
`14, 2012). Claims brought under Florida’s False Claims Act require proof of the same
`elements as its federal counterpart. United States v. Sand Lake Cancer Ctr., P.A., No. 8:13- CV-
`2724-T-27MAP, 2019 WL 423156, at *2 (M.D. Fla. Feb. 4, 2019).
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`6
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 7 of 16 PageID 461
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`A. The Kickback Scheme
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`As an initial matter, Defendant contends, and the Court agrees that Relator has
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`not sufficiently pleaded that Defendant was engaged in a kickback scheme with any of
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`the eleven doctors or any referral source. [Doc. 50 at p. 4]. The Eleventh Circuit
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`explained in Carrel v. AIDS Healthcare Found., Inc., 898 F.3d 1267, 1272 (11th Cir. 2018)
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`that
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`The Anti-Kickback Statute creates liability for anyone who
`“knowingly and willfully offers or pays any remuneration
`... to any person to induce such person ... to refer an
`individual to a person for the furnishing ... of any item or
`service for which payment may be made in whole or in part
`under a Federal health care program.” Id. § 1320a-7b(b)
`
`(citing 42 U.S.C. § 1320a-7b(b)(2)). The statute “broadly forbids kickbacks, bribes, and
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`rebates in the administration of government healthcare programs.” Id. A violation of
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`the statute occurs when the defendant (1) knowingly and wilfully, (2) pays money,
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`directly or indirectly, to doctors, (3) to induce the doctors to refer individuals to the
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`defendants for the furnishing of medical services, (4) paid for by a Federal health care
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`program. U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591 F. App'x 693, 698 (11th
`
`Cir. 2014) (citing United States v. Vernon, 723 F.3d 1234, 1252 (11th Cir. 2013)).
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`The complaint does not sufficiently plead the who, what, when, or how as to
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`the payment of money, directly, or indirectly, to the doctors identified nor any referral
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`source. The complaint is deficient as to when the alleged payments occurred. Relator
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`alleges generally that “[t]he practices referenced herein occurred from 2014 through
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`the June 2019.” [Doc. 49 ¶ 21]. That is not enough. Relator also provided specific dates
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`7
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 8 of 16 PageID 462
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`or periods as to some acts, for example, the purchase of custom “Boxed cookies” on
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`December 9, 2015 to give to Dr. Bhashyam as Christmas cookies so that he could use
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`them as referral physician gifts. Id. ¶ 30. But still, Relator does not allege when these
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`cookies were actually given to Dr. Bhashyam, which is the relevant time for purposes
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`of alleging the scheme. See Sampson v. Washington Mut. Bank, 453 F. App'x 863, 866
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`(11th Cir. 2011) (“Because Sampson fails to allege in his complaint who made the
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`misrepresentations, what their precise content was, when they were made, and where
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`they were made, he has not set forth facts sufficient to plead fraud.”); United States ex
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`rel. Silva v. VICI Mktg., LLC, 361 F. Supp. 3d 1245, 1254 (M.D. Fla. 2019) (denying
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`dismissal of count against Z Stat Medical and reasoning that “[t]he Complaint in
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`partial intervention . . . describes how Z Stat Medical maintained spreadsheets
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`outlining the kickbacks due under each kickback scheme. The United States pled the
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`dates and amounts of various kickback payments paid through Z Stat Medical and
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`the details of some representative false claims. Thus, there are sufficient allegations
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`about Z Stat Medical individually to support the FCA claim.”) (docket cites omitted).
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`Allegations as to purported payments to some doctors were entirely devoid of a date
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`the payment was made. See, e.g., id. ¶¶ 22(a),(c),(d),(e),(f). Because of the lack of
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`particularity, none of the allegations as to payment is sufficient for purposes of Rule
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`9(B), such that the Court must find that Relator has not met the heightened standard
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`for pleading a kickback scheme.
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`8
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 9 of 16 PageID 463
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`B. The False Claims Counts
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`Even if Relator had sufficiently alleged a kickback scheme, the complaint suffers
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`additional deficiencies in pleading the counts asserted, which warrant dismissal of the
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`complaint.
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`To establish a cause of action under § 3729(a)(1)(A), a
`relator must prove three elements: (1) a false or fraudulent
`claim, (2) which was presented, or caused to be presented,
`for payment or approval, (3) with the knowledge that the
`claim was false. 31 U.S.C. § 3729(a)(1)(A). To prove a
`claim under § 3729(a)(1)(B), a relator must show that: (1)
`the defendant made (or caused to be made) a false
`statement, (2) the defendant knew it to be false, and (3) the
`statement
`was
`material
`to
`a
`false
`claim. 31 U.S.C. § 3729(a)(1)(B).
`
`United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d 1148, 1154 (11th Cir. 2017).
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`To establish a reverse false claim, pursuant to 31 U.S.C. § 3729(a)(1)(G), a relator must
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`prove: (1) a false record or statement; (2) the defendant's knowledge of the falsity; (3)
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`that the defendant made, used, or causes to be made or used a false statement or
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`record; (4) for the purpose to conceal, avoid, or decrease an obligation to pay money
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`to the government; and (5) the materiality of the misrepresentation. Medco Health Sols.,
`
`Inc., 671 F.3d at 1222. Again, claims brought under Florida’s False Claims Act require
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`proof of the same elements as its federal counterpart. United States v. Sand Lake Cancer
`
`Ctr., P.A., No. 8:13- CV-2724-T-27MAP, 2019 WL 423156, at *2 (M.D. Fla. Feb. 4,
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`2019). The Court will address an additional deficiency that is fatal as to each count.
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`9
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 10 of 16 PageID 464
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`i.
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`Presentment of False Claims
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`Count I alleges a claim pursuant to § 3729(a)(1)(A) and Count IV alleges the
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`corresponding claim under Florida law. As noted in the Court’s prior order, “[t]he
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`submission of a claim is . . . the sine qua non of a False Claims Act violation.” U.S. ex
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`rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002). “The False
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`Claims Act does not create liability merely for a health care provider's disregard of
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`Government regulations or improper internal policies unless, as a result of such acts,
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`the provider knowingly asks the Government to pay amounts it does not owe.” Id. “To
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`satisfy the presentment requirement, a relator ‘must allege the actual presentment of a
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`claim ... with particularity, meaning particular facts about the who, what, where,
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`when, and how of fraudulent submissions to the government.’ ” United States v.
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`Choudhry, 262 F. Supp. 3d 1299, 1308-09 (M.D. Fla. 2017) (quoting Urquilla–Diaz v.
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`Kaplan Univ., 780 F.3d 1039, 1052 (11th Cir. 2015)).
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`Failure to sufficiently plead that a claim was submitted justifies dismissal of a
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`claim alleging a violation of § 3729(a)(1)(A). In Clausen, for example, the district court
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`found that the First Amended Complaint’s failure to identify any specific claims that
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`were submitted to the United States or identify the dates on which those claims were
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`presented to the government was a fatal flaw and that the Second Amended
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`Complaint’s addition of conclusory statements that LabCorp submitted for specified
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`tests on the “date of service or within a few days thereafter,” suffered from the same
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`defect. Clausen, 290 F.3d at 1311. The appellate court agreed, finding that the
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`allegations in the Second Amended Complaint were conclusory and reasoning that
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`10
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 11 of 16 PageID 465
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`“[i]f Rule 9(b) is to carry any water, it must mean that an essential allegation and
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`circumstance of fraudulent conduct cannot be alleged in such conclusory fashion.” Id.
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`at 1311, 1313. As in this case, Clausen provided patient identities, dates of testing and
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`testing procedures, but without information about claims actually submitted, the
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`appellate court held that dismissal was proper. Id. at 1313-15.
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`The Court acknowledges, as Relator points out in her response, that she has
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`provided eighty-five examples of patients implanted with Defendant’s products and/
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`or placed on home monitoring as a result of the alleged kickback scheme—including
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`information as to dates, products used, procedures performed, invoice numbers,
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`insurance entities, as well as which doctors performed the procedures. [Doc. 53 pp. 6,
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`10]. As to each patient, Relator alleges that “[t]hese medical devices, services, and
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`procedures were ultimately paid for by Medicare, Medicaid, or another government
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`funded healthcare provider.” [Doc. 49, ¶ 44(a-cg)]. It is not sufficient for Relator to
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`allege merely that claims must have been submitted, were likely submitted, or should
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`have been submitted to a federally-funded healthcare provider. U.S. ex rel. Clausen, 290
`
`F.3d 1311. Without providing certain details such as dates that false claims were
`
`submitted, amounts listed in those claims, or similar details, a complaint does not meet
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`the standards of Fed. R. Civ. P. 9(b). Sanchez, 596 F.3d at 1302. This is the case here
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`as Relator fails to identify any claims submitted for payment to a government funded
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`healthcare provider as a result of Defendant’s alleged kickback scheme. She has
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`provided the “who,” “what,” “where,” “when,” and “how” of improper practices, but
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`has failed to allege the “who,” “what,” “where,” “when,” and “how” of fraudulent
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`11
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 12 of 16 PageID 466
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`submissions to the government. Corsello, 428 F.3d at 1014. Moreover, while it is true
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`that personal knowledge—as a result of employment or conversations with billing
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`employees—can provide support for an FCA complaint, Unites States ex rel. Walker v.
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`R&F Properties of Lake Cnty. Inc., 433 F.3d 1349, 1360 (11th Cir. 2005), no such
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`allegation is presented here and the Court cannot find the indicia of reliability that
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`could otherwise cure any deficiency as to the sufficiency of the allegations. See United
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`States v. HPC Healthcare, Inc., 723 F. App'x 783, 789 (11th Cir. 2018) (“[T]his Court has
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`deemed indicia of reliability sufficient where the relator alleged direct knowledge of
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`the defendants’ submission of false claims based on her own experiences and on
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`information she learned in the course of her employment.”). As a result, Relator has
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`not sufficiently pleaded a claim that Defendant presented or caused to be presented to
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`a federal healthcare program, a false or fraudulent claim for payment, which further
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`warrants dismissal of Counts I and IV.
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`ii. False Record or Statement
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`Counts II and V both allege that Defendant made, used, or caused to be made
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`or used false or fraudulent records and statements to get a false claim paid or approved
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`by the government. [Doc. 49]. Defendant argues, among other things, the complaint
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`fails to allege any false statement or record made or caused to be made by Defendant.
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`[Doc. 50 pp. 2, 11]. In response, relator contends that she has described in detail how
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`Defendant used dummy home monitoring sites to create a false record that patients
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`had been monitored. [Doc. 53 at p. 11]. The Court has reviewed the allegations of the
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`12
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 13 of 16 PageID 467
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`complaint, and specifically those cited by Relator in her response, and finds that they
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`too, are conclusory.
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`Relator alleges that Defendant was billing for home monitoring of patients that
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`was never ordered by the physician, never consented to by the patient and never
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`occurred, and that home monitoring accounts were not being used. [Doc. 49 §¶¶ 34-
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`39, 44]. Additionally, she alleges that Defendant engaged in a practice of creating
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`dummy accounts. Id. Importantly, Relator has not identified any specific statement or
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`record. This Court has previously dismissed complaints for this very reason. See United
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`States ex rel. McFarland v. Fla. Pharmacy Sols., 358 F. Supp. 3d 1316, 1330 (M.D. Fla.
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`2017) (dismissing false statement count for lack of particularity and reasoning that
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`“McFarland attaches, for example, no false statement or record to the complaint and
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`fails to identify the date of any statement or record.”). The Court recognizes that
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`Relator provided some specifics as to Dr. Ahmed, but finds that she has still not alleged
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`the how, what, or other relevant details regarding the claimed fraudulent billing or use
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`of dummy accounts, which is required when pleading fraud. See United States ex rel.
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`Stepe v. RS Compounding LLC, 304 F. Supp. 3d 1216, 1225 (M.D. Fla. 2018) (“To the
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`extent the Court can divine what false records or statements Stepe intended to
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`reference in this count, the Court finds those statements insufficiently pled under Rule
`
`9(b). Stepe still has not sufficiently pled how the pre-printed script pads specifying a
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`high refill number constitute a false statement, given that physicians are free to mark
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`out the default refill number and fill in another.”). As such, the Court finds that Relator
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`13
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 14 of 16 PageID 468
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`has not met the heightened standard of pleading as to the claims alleged in Counts II
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`and V.
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`iii. Obligation to the Government
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`The Court agrees with Defendant that Relator has not adequately pleaded a
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`reverse false claim pursuant § 3729(a)(1)(G). “[L]iability [under that section] results
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`from avoiding the payment of money due to the government, as opposed to submitting
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`to the government a false claim.” United States ex rel. Matheny v. Medco Health Sols., Inc.,
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`671 F.3d 1217, 1222 (11th Cir. 2012) (citing United States v. Pemco Aeroplex, Inc., 195
`
`F.3d 1234, 1235–36 (11th Cir.1999)); United States ex rel. Stepe v. RS Compounding LLC,
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`304 F. Supp. 3d 1216, 1226 (M.D. Fla. 2018) (same). Relator has not sufficiently
`
`pleaded that Defendant had a payment obligation to the government. As Defendant
`
`contends, nowhere in the Amended Complaint does Relator plead with particularity
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`any overpayments to Defendant based on false submissions, which in turn created an
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`obligation to refund the government. Instead, Relator provides conclusory allegations
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`that Defendant’s kickback scheme allowed it to collect money it was not entitled to
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`and that by concealing this scheme Defendant has denied the government the ability
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`to demand a return of the money. [Doc. 49 ¶¶ 59-61, 78-79. In fact, Relator has only
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`generally alleged throughout the complaint that the patient’s procedures were believed
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`to have been paid out by Medicare, Medicaid, or another government funded
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`healthcare provide. Id. ¶ 37, 44. This is not enough to serve as the basis of an obligation
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`to the government for purposes of reverse false claim liability. Counts III and VI are
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`therefore also subject to dismissal on this basis.
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 15 of 16 PageID 469
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`C. Leave to Amend
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`Finally, the parties raise an issue as to whether the dismissal should be granted
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`with prejudice or whether Relator should be allowed to file an amended complaint.
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`“[A] district court's discretion to dismiss a complaint without leave to amend is
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`‘severely restrict[ed]’ by Fed. R. Civ. P. 15(a), which directs that leave to amend ‘shall
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`be freely given when justice so requires.’ ” Thomas v. Town of Davie, 847 F.2d 771, 773
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`(11th Cir. 1988) (quoting Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597
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`(Former 5th Cir.1981)). “In the absence of any apparent or declared reason—such as
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`undue delay, bad faith or dilatory motive on the part of the movant, repeated failure
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`to cure deficiencies by amendments previously allowed, undue prejudice to the
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`opposing party by virtue of allowance of the amendment, futility of amendment, etc.—
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`the leave sought should, as the rules require, be ‘freely given.’ ” Garfield v. NDC Health
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`Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182
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`(1962)). Nothing on the record in this case suggests undue delay, bad faith, or dilatory
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`motive on the part of Relator, nor that Defendant will be unduly prejudiced if the
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`Court allows Relator to amend the complaint. Additionally, the Court finds that a
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`more carefully drafted complaint could sufficiently state a claim. Therefore, the Court
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`will allow Relator one final opportunity to amend her complaint.
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`Accordingly, it is hereby ORDERED:
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`1. Defendant’s Motion to Dismiss [Doc.50], is GRANTED. Relator is
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`granted leave to file a Third Amended Complaint on or before February
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`Case 8:18-cv-00396-CEH-JSS Document 71 Filed 01/21/21 Page 16 of 16 PageID 470
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`4, 2021, which cures the deficiencies discussed in this and the previous
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`Order. Failure to file the amended complaint within the time provided
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`will result in dismissal of this action without further notice.
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`DONE AND ORDERED in Tampa, Florida on January 21, 2021.
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`Copies to:
`Counsel of Record and Unrepresented Parties, if any
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